Prohibition unconsitutional?

In 1885, an injunction closed John Walruff's brewery in Lawrence, Kansas. Walruff had been ignoring Kansas' prohibition law for 5yr. He appealed, saying Prohibition constituted an illegal confiscation of property. In 1886, Walruff won on appeal & it went to SCotUS, where in 1887, he lost.

WI he'd won, instead? What would it have taken to win the case? Could this have butterflied away the "drug war", too? Could it have crippled the Mafia before it started? What would the U.S. brewing industry look like TTL in 2015?
 
Not only was *Mugler v. Kansas* an 8-1 decision, but even Justice Fields in his partial dissent states "I agree to so much of the opinion as asserts that there is nothing in the constitution or laws of the United States affecting the validity of the act of Kansas prohibiting the sale of intoxicating liquors manufactured in the state, except for the purposes mentioned." https://www.law.cornell.edu/supremecourt/text/123/623 He adds, however, "But I am not prepared to say that the state can prohibit the manufacture of such liquors within its limits if they are intended for exportation, or forbid their sale within its limits, under proper regulations for the protection of the health and morals of the people, *if congress has authorized their importation*, though the act of Kansas is broad enough to include both such manufacture and sale. " [emphasis added] So even if Fields had prevailed, all that would be necessary for states to prohibit the sale of imported liquor would have been for Congress to forbid the interstate shipment of liquor to states whose laws prohibited it. This is precisely what Congress did in 1913 with the Webb-Kenyon Act. https://en.wikipedia.org/wiki/Webb%E2%80%93Kenyon_Act

BTW, this actually belongs in the pre-1900 section, since we are talking about an 1887 decision.
 
David T said:
BTW, this actually belongs in the pre-1900 section, since we are talking about an 1887 decision.
:eek: I'm happy to have it moved.
David T said:
Not only was *Mugler v. Kansas* an 8-1 decision, but even Justice Fields in his partial dissent states "I agree to so much of the opinion as asserts that there is nothing in the constitution or laws of the United States affecting the validity of the act of Kansas prohibiting the sale of intoxicating liquors manufactured in the state, except for the purposes mentioned." https://www.law.cornell.edu/supremecourt/text/123/623 He adds, however, "But I am not prepared to say that the state can prohibit the manufacture of such liquors within its limits if they are intended for exportation, or forbid their sale within its limits, under proper regulations for the protection of the health and morals of the people, *if congress has authorized their importation*, though the act of Kansas is broad enough to include both such manufacture and sale. " [emphasis added] So even if Fields had prevailed, all that would be necessary for states to prohibit the sale of imported liquor would have been for Congress to forbid the interstate shipment of liquor to states whose laws prohibited it. This is precisely what Congress did in 1913 with the Webb-Kenyon Act. https://en.wikipedia.org/wiki/Webb–Kenyon_Act
I know Walruff lost. I presume (tho the dates aren't clear to me) Mugler was decided first, making Walruff moot...:eek:

If so, what would it take for Mugler to go the other way? It looks to me like the Kansas court is strongly opposed to the legislature's positon, judging by this.
 
Doesn't make a difference. The 18th amendment means that it is not unconstitutional no matter what the SCOTUS says. That is why there is an amendment to the Constitution that says it is ok to have a income tax and federal reserve.
 
jlckansas said:
Doesn't make a difference. The 18th amendment means that it is not unconstitutional no matter what the SCOTUS says. That is why there is an amendment to the Constitution that says it is ok to have a income tax and federal reserve.

And the 18th Amendment wasn't passed until rather later... What happens to the cause of Prohibition if it's ruled unconstitutional before that? (And don't tell me, "They'll just pass the 18th Amendment".:rolleyes:)
 
And the 18th Amendment wasn't passed until rather later... What happens to the cause of Prohibition if it's ruled unconstitutional before that? (And don't tell me, "They'll just pass the 18th Amendment".:rolleyes:)
They'll just try to pass the 18th Amendment equivalent.
Sorry no sorry, but that is the way it is.
If something is declared unconstitutional, that's what amendments are for, you make it constitutional.
 
First of all, it is virtually ASB territory for the US Supreme Court to declare state prohibition laws unconstitutional in the late nineteenth century. As I noted, even Field, the one justice to partially dissent in *Mugler,* would not go so far. (He did think it was unconstitutional for states to prohibit the importation of liquor from other states when Congress had not prohibited it; but even if this viewpoint--which was rejected 8-1--had prevailed, Congress could easily overcome it by passing an earlier version of the Webb-Kenyon Act, specifically outlawing the shipment of liquor into states with prohibition laws.)

Let us assume however that all nine justices do something they were unwilling to do in OTL and declare all state prohibition laws unconstitutional. Congress would not IMO then pass a national prohibition amendment like the 18th Amendment; there was not enough support for that at the time. Rather it would pass a constitutional amendment providing--as the 21st Amendment does--that prohibition is a matter for the states, which have the right to decide whether they will allow it to be manufactured or imported.

Such an amendment would pass overwhelmingly and would easily be ratified. Even opponents of prohibition in their own state would see no reason that states which wanted prohibition couldn't have it. And of course it would not preclude a *future* amendment outlawing liquor nationally.
 
First of all, it is virtually ASB territory for the US Supreme Court to declare state prohibition laws unconstitutional in the late nineteenth century. As I noted, even Field, the one justice to partially dissent in *Mugler,* would not go so far. (He did think it was unconstitutional for states to prohibit the importation of liquor from other states when Congress had not prohibited it; but even if this viewpoint--which was rejected 8-1--had prevailed, Congress could easily overcome it by passing an earlier version of the Webb-Kenyon Act, specifically outlawing the shipment of liquor into states with prohibition laws.)

Let us assume however that all nine justices do something they were unwilling to do in OTL and declare all state prohibition laws unconstitutional. Congress would not IMO then pass a national prohibition amendment like the 18th Amendment; there was not enough support for that at the time. Rather it would pass a constitutional amendment providing--as the 21st Amendment does--that prohibition is a matter for the states, which have the right to decide whether they will allow it to be manufactured or imported.

Such an amendment would pass overwhelmingly and would easily be ratified. Even opponents of prohibition in their own state would see no reason that states which wanted prohibition couldn't have it. And of course it would not preclude a *future* amendment outlawing liquor nationally
.

Would this be enough to satisfy the Temperance movement?

Were there states opposed or ambivalent to prohibition? If so could these estates keep the US alcohol (particularly wine) industry going?
 
Riain said:
Would this be enough to satisfy the Temperance movement?

Were there states opposed or ambivalent to prohibition? If so could these estates keep the US alcohol (particularly wine) industry going?
Not sure it would satisfy the Prohibitionists. It looks like several states were ambivalent, passing & repealing prohibition laws in the 1870s & 1880s. Don't forget, brewing was big business then: at one time, there were over 4000 breweries in the U.S.:eek:
 
Would this be enough to satisfy the Temperance movement?

Were there states opposed or ambivalent to prohibition? If so could these estates keep the US alcohol (particularly wine) industry going?

It would not be enough to satisfy them in the long run but of course in the short run they would prefer states-rights to a nationwide ban on prohibition laws. The votes for a national prohibition amendment were simply not there until the era of World War I.

And there were always states that were opposed to prohibition, especially in the urban Northeast--Connecticut and Rhode Island never even ratified the Eighteenth Amendment.
 
It would not be enough to satisfy them in the long run but of course in the short run they would prefer states-rights to a nationwide ban on prohibition laws. The votes for a national prohibition amendment were simply not there until the era of World War I.

And there were always states that were opposed to prohibition, especially in the urban Northeast--Connecticut and Rhode Island never even ratified the Eighteenth Amendment.

Did that mean that people there could drink?
 
Did that mean that people there could drink?

No. If enough states ratify an amendment it becomes a part of the constitution and is therefore the law of the land in every state, wether they ratified it or not. Though, the lack of support in those states would indicate that they wouldn't exactly be vigorous in their enforcement of prohibition...
 
Here's the thing, tho. State prohibition was a fact before the 18th Amendment, so there was no need for a Constitutional amendment. (It'd be a matter of state's rights, AIUI.) That it never becomes national & doesn't lead to the OTL destructive effects seems like a good thing. I expect you'd get a lot of whining about smuggling, like you do with cigarettes, from low- to hi-tax locales.

Which raises another question: could states without prohibition challenge the constitutionality under the Commerce Clause? I'm thinking, here, of the Hudson River steamboat case, which had SCotUS rule it was unconstitutional interference with interstate trade. It would piss off the Prohibitionist lobby,:cool: but it would seem to bar them from doing anything about it...except going national...:eek:
 
In 1885, an injunction closed John Walruff's brewery in Lawrence, Kansas. Walruff had been ignoring Kansas' prohibition law for 5yr. He appealed, saying Prohibition constituted an illegal confiscation of property. In 1886, Walruff won on appeal & it went to SCotUS, where in 1887, he lost.

WI he'd won, instead? What would it have taken to win the case? Could this have butterflied away the "drug war", too? Could it have crippled the Mafia before it started? What would the U.S. brewing industry look like TTL in 2015?

It's a nice idea, but I'm afraid it's a bit tougher to pull off than it may sound: one major obstacle is that it wasn't just Progressives and suffragists + early feminists who latched on to Prohibition-so, too, did a good number of hardline and extreme right-wingers who sought to use it as a tool against Irish and Italian immigrants in particular(but Catholics in general in more than a few cases; even German-Americans weren't exempt from that).

As for the War on Drugs? I dunno if the failure of alcohol prohibitionism would have necessarily entirely prevented that; even the war on marijuana was a bit of a complicated issue, but even most mainstream historians recognize that racism did play a significant role in advancing it's banning, particularly in the South and West; in the North, a good bit of it may have actually been due to the spread of what was basically a late 19th/early 20th Century version of the "gateway drug" idea.

But if alcohol prohibition doesn't go national, then marijuana prohibition may not, either. Perhaps, under certain circumstances, it might even only be limited to the South and maybe a few other jurisdictions elsewhere, and perhaps alcohol prohibition might be limited to some of the most Progressive and/or most reactionary places, depending on the scenario.
 
Here's the thing, tho. State prohibition was a fact before the 18th Amendment, so there was no need for a Constitutional amendment. (It'd be a matter of state's rights, AIUI.) That it never becomes national & doesn't lead to the OTL destructive effects seems like a good thing. I expect you'd get a lot of whining about smuggling, like you do with cigarettes, from low- to hi-tax locales.

Which raises another question: could states without prohibition challenge the constitutionality under the Commerce Clause? I'm thinking, here, of the Hudson River steamboat case, which had SCotUS rule it was unconstitutional interference with interstate trade. It would piss off the Prohibitionist lobby,:cool: but it would seem to bar them from doing anything about it...except going national...:eek:

As I noted, Justice Field, though he accepted the constitutionality of prohibition laws with regard to liquor produced within the state for consumption within the state, thought that states had no right to ban the production of liquor for export to other states or the import of liquor from other states *in the absence of a congressional prohibition of such imports and exports.* So even if Field's dissent had prevailed (which I think unlikely--remember it was rejected 8-1) all that would mean would be that Congress would pass an earlier version of the Webb-Kenyon Act. https://en.wikipedia.org/wiki/Webb–Kenyon_Act *If*--as I also think unlikely--the Court would then find this law unconstitutional (as a delegation of powers to the states) than a constitutional amendment with language similar to the Act and to Section 2 of the 21st Amendment https://en.wikipedia.org/wiki/Twenty-first_Amendment_to_the_United_States_Constitution is likely. It would be passed by a coalition of prohibitionists (who ideally would have liked a national prohibition amendment but knew that the votes were not there for it yet) and non-prohibitionists who wanted to leave the matter to the states.
 
Top