Federalism, positive law, and the emergence of the American administrative state: prohibition in the Taft Court era.

Author:Post, Robert


This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control.

During the 1920s the Supreme Court was a strictly "bone-dry" institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale of liquor throughout the continental United States. This is surprising, because the Taft Court was in other respects dominated by conservative Justices, who were temperamentally opposed to the expansion of the national administrative state, particularly in contexts in which the national government sought to displace local police power. Prohibition represented the greatest expansion of federal regulatory authority since Reconstruction. It caused a major crisis in the theory and practice of American federalism, as the national government, which lacked the courts or police necessary for implementing the Eighteenth Amendment, sought to conscript state judicial and law enforcement resources.

Close inspection reveals that the Taft Court's support for prohibition came from an unlikely alliance between two liberal Justices--Holmes and Brandeis--and three conservative Justices--Taft, Van Decanter, and Sanford. Three conservative Justices--McReynolds, Sutherland, and Butler--remained adamantly opposed to prohibition.

Holmes's and Brandeis's support of prohibition likely reflects pre-New Deal liberalism's conviction that courts ought to defer to democratic lawmaking. This conviction was sorely tested by the flagrant and persistent defiance of prohibition, as well as by the repressive criminal and administrative techniques used to secure prohibition's enforcement. Not only did progressives grow suspicious of federal regulatory efforts to enforce sumptuary legislation, but they began to question the legitimacy of positive law that lacked resonance with the customs and mores of the population. These trends in American liberalism are visible in Brandeis's famous dissent in Olmstead. They would vanish with the advent of the New Deal and not reappear until the 1960s, in cases like Griswold v. Connecticut, at a time when the American administrative state had become as effectively entrenched as it had been during prohibition in the 1920s.

The opposition to prohibition of McReynolds, Sutherland, and Butler represents the traditional pre-New Deal judicial conservative position that positive law, particularly positive national law, was to be judicially disciplined whenever it departed from customary social values. The vigorous support of prohibition by otherwise conservative Justices like Taft, Van Decanter, and Sanford, by contrast, represents a new development in American judicial conservatism. These Justices fused a conservative belief in social control with an embrace of legal positivism. This fusion disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state.

The brief constitutionalization of prohibition, in other words, forced Justices on both the right and the left to stop debating whether there should be an American administrative state, and required them instead to reconstruct their judicial philosophy on the assumption that the administrative state was an unalterable reality. It provoked a brief efflorescence of judicial perspectives that would not come into full flower until late in the twentieth century. Prohibition also forced a rethinking of the appropriate limits of national power, as well as fundamental developments in the meaning of Fourth Amendment limitations on law enforcement.


To recover the significance of prohibition in the United States is to engage in what Michel Foucault would call archaeology. (1) The normal history of the American administrative state simply omits the era of prohibition. The hiatus is especially striking because the Eighteenth Amendment's prohibition on the sale and manufacture of liquor prompted the greatest expansion of federal administrative responsibility since the days of Reconstruction. Yet the ordinary narrative of American institutional development leaps directly from prewar progressivism to FDR's New Deal, skipping lightly over the 1920s. Apparently the collapse of prohibition was so traumatic that the whole episode has simply dropped from our historical consciousness.

This is a pity, for prohibition has much to teach us about important themes of American constitutional history. The Eighteenth Amendment, ratified on January 16, 1919, prohibited "the manufacture, sale, or transportation of intoxicating liquors," (2) and the bone-dry Volstead Act, (3) enacted by Congress to implement the Amendment, defined liquor as intoxicating whenever it contained more than 0.5 percent alcohol. (4) Although the Eighteenth Amendment had been approved by forty-six of the forty-eight states, (5) and although the majority of the states had some form of local prohibition prior to ratification, (6) national prohibition was divisive from the start. Two constitutional foci of the controversies that swirled around prohibition are of particular interest.

The first is federalism. (7) The United States had never before attempted to control the details of everyday life, and the nation lacked the institutional structures necessary independently to implement the Eighteenth Amendment. (8) The federal government was virtually forced to attempt to conscript state law enforcement resources, which provoked sustained controversy about the proper boundary between state and national sovereignty. Both supporters and opponents of prohibition struggled to understand how the Eighteenth Amendment's radical enlargement of federal authority could be reconciled with received ideals of federalism. Many Americans came to reject the idea that the national government ought to be involved in detailed police regulations seeking to control the minutiae of everyday life.

The second is positive law. Positive legislation, as distinct from common law customary standards, is essential for the development of an administrative state. Prohibition was a conspicuous form of such legislation; it sought to reform the entrenched values and behavior of important segments of the American population. Not surprisingly, prohibition provoked a fierce and roiling debate about the legitimacy of positive law which, although democratically enacted, nevertheless seeks to override engrained social mores. This debate exposed surprisingly widespread reservations about the validity of positive legislation. The debate also revealed an intimate connection between distrust of positive law and distrust of federal authority.

During the 1920s the Supreme Court, under the leadership of Chief Justice William Howard Taft, was at the storm center of prohibition enforcement. The Court split violently over the interpretation and administration of prohibition. Taft remarked to his son Charles that "[i]t would seem as if more feeling could be engendered over the Prohibition Act than almost any other subject that we have in the Court." (9) "there is something about the issue that seems to engender bitterness," (10) Taft observed two years later:

We have had two five to four decisions, Brandeis writing the majority opinion in each case. Our dear friends Pierce Butler and George Sutherland are most sensitive on the subject of the Volstead law, but Holmes, Van Devanter, Brandeis, Sanford and I are still steady in the boat. Stone wobbles a good deal on the subject, and I don't quite see where he stands, and I am not quite sure that he does. (11) Taft suggests, and independent analysis confirms, that the disagreements inspired by prohibition cut across the usual divide that separated judicial conservatives from liberals. (12) That divide was ordinarily drawn over the question of how deferentially courts ought to review manifestations of the administrative state, and most especially of the national administrative state. But the Eighteenth Amendment confronted the Court with a massive fait accompli committing the national government to a wide-ranging project of social control. Faced with a seemingly unalterable constitutional mandate for prohibition, the conservative wing of the Court split into two factions.

Justices McReynolds, Sutherland, and Butler remained faithful to a traditional conservative view that was suspicious of positive governmental regulation. They detested prohibition both because they opposed the expansion of the national administrative state and because they believed that positive law ought to be subordinated to received social values. Conservatives like Taft, Van Devanter, and Sanford, by contrast, strongly supported prohibition because they interpreted opposition to the Eighteenth Amendment as resistance to the legal order itself. Accepting prohibition as irreversible positive law requiring rigorous enforcement, these Justices pioneered an innovative fusion of conservatism and positivism that would vanish after the repeal of prohibition and that would not again reemerge on the Court until William Rehnquist a half century later. (13)

Liberals on the Court, like Holmes and Brandeis, also vigorously upheld prohibition, a stance that reflected both their embrace of national authority and their customary progressive deference to the democratic enactments of positive law. An odd and singular alliance of conservatives and...

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