Federal Criminal Law Doctrines: The Forgotten Influence of National Prohibition
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Federal Criminal Law Doctrines: The Forgotten Influence of National Prohibition
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Overview
In this detailed examination, Murchison considers a portion of the Supreme Court’s work prior to the New Deal crisis, a period insufficiently considered until now. Among the developments he discusses are those relating to the defense of entrapment, the Fourth Amendment’s protection against unreasonable search and seizure, the Fifth Amendment’s prohibition against double jeopardy, property forfeitures, and the jury trial guarantees for criminal proceedings. His analysis reveals a court less rigid, less consistently divided along modern ideological lines, and more tolerant of governmental authority than traditional wisdom would suggest. Thus, Murchison offers a framework for a revisionist view of the Supreme Court’s activities during this period.
Exploring an important connection between the Eighteenth Amendment, the Volstead Act, and the development of federal criminal law, this book documents what was arguably the nation’s first criminal law revolution at the federal level. Explaining the modern origins of doctrines that still inform federal criminal law, Murchison also provides a case study of how legal doctrine responds to changing social conditions. Federal Criminal Law Doctrines will add immeasurably to the work of historians and legal scholars alike.
Product Details
| ISBN-13: | 9780822379164 |
|---|---|
| Publisher: | Duke University Press |
| Publication date: | 11/15/1994 |
| Sold by: | Barnes & Noble |
| Format: | eBook |
| Pages: | 288 |
| Lexile: | 1680L (what's this?) |
| File size: | 433 KB |
About the Author
Kenneth M. Murchison is J. Denson Smith Professor at the Paul M. Hebert Law Center of Louisiana State University.
Read an Excerpt
Federal Criminal Law Doctrines
The Forgotten Influence of National Prohibition
By Kenneth M. Murchison
Duke University Press
Copyright © 1994 Duke University PressAll rights reserved.
ISBN: 978-0-8223-7916-4
CHAPTER 1
The Prohibition Backdrop
The era of national prohibition is a fascinating and significant chapter in United States history. In 1920 the nation began the "noble experiment" of federal control of intoxicating liquors. The ratification of the Eighteenth Amendment prohibited the manufacture, sale, and transportation of intoxicating liquors as well as their importation into, or exportation from, United States territory. Just thirteen years later, the experiment ended in failure. The Twenty-first Amendment abolished national prohibition, and the Eighteenth Amendment became the first (and only) constitutional amendment to be repealed.
As a failed attempt to regulate national morals, the prohibition experiment has drawn the attention of contemporary policy analysts as well as historians. Both commentators and scholars have, however, generally overlooked the importance of the experiment for the development of legal thought, and that omission is unfortunate. Studying the prohibition era not only clarifies the historical development of federal law and the impact prohibition had on the intellectual culture of the nation. It also suggests the need for a revision of the conventional wisdom regarding the Supreme Court of the 1920s and offers an illuminating case study of how legal doctrine responds to changing social conditions.
Much contemporary interest in national prohibition derives from the desire to draw parallels to modern problems. In particular, analysts have tried to draw parallels with respect to current regulations of alcohol and other drugs.
Recent years have seen the emergence of new and stricter controls on liquor consumption. For example, most states have strengthened their laws against driving while intoxicated. Responding to federal pressure, states have also raised the legal age for purchasing alcoholic beverages to twenty-one. Certainly no one has advocated a return to prohibition. Nonetheless, one study has suggested the future may produce "new, extensive regulation of the liquor industry ... integrated into a paradigm of environmental safeguards and corporate responsibility...."
For other drugs, the current political mood is more ambivalent. The past has emphasized suppression through criminal prosecution, and the dominant voices still call for stricter controls and better enforcement. However, an increasing number of commentators have begun to advocate abandoning the traditional reliance on the criminal process. Here the alleged parallel is not to adoption of the Eighteenth Amendment establishing prohibition but to the repeal of prohibition by the Twenty-first Amendment.
The frequent analogies to the prohibition experiment in the contemporary debates invite, if they do not compel, study of the experiment. Fortunately a large body of literature exists because the era of national prohibition has attracted considerable attention from professional historians over the last three decades.
The primary historical inquiry has been to define the significance of the era of national prohibition in United States history. On that issue, much of the debate has focused on two issues: whether prohibition was part of the nation's general reform tradition, and whether prohibition was an instrumental response to a significant social problem.
In the 1950s, Richard Hofstadter initiated the modern debate about the nature of the movement that led to the adoption of the Eighteenth Amendment; that is, whether national prohibition was a progressive social reform, as its adoption at the end of the Progressive Era suggests, or whether it was a pseudoreform, as its repeal at the beginning of the New Deal indicates. Hofstadter's general history of the American reform tradition described prohibition as "a ludicrous caricature of the reforming impulse," a "reaction against the progressive temper," and a "pinched, parochial reform." Andrew Sinclair's 1963 history of prohibition accepted that view, and it probably still remains the general view of most nonhistorians.
As early as 1963, James Timberlake disputed the Hofstadter thesis by documenting the links between prohibition and the progressives. Moreover, recent scholarship has developed a growing consensus that rejects the Hofstadter characterization. This revisionist review increasingly accepts prohibition as part of the conflicting impulses of the progressive movement in the United States.
Sociologist Joseph Gusfield raised the question of whether prohibition was an instrumental or a symbolic reform. His 1963 study of the temperance movement argued that prohibition was largely a symbolic issue. He contended that prohibition—and indeed the entire temperance movement in the United States—was not primarily an effort to reduce the consumption of intoxicating liquors. Instead, the reform was largely a symbolic conflict between a traditional nation centered in rural, middle-class, Protestant values and an emerging one identified with cosmopolitan, urban, and immigrant values.
Subsequent studies have substantially modified the Gusfield thesis, although few modern scholars completely reject the symbolic importance of prohibition. The more recent scholarship has demonstrated that the periods of temperance and prohibition reform involved real social problems associated with alcohol. In addition, the newer studies have also shown that prohibition was far more effective than previously thought. Per capita consumption of alcohol decreased sharply during the prohibition era and did not return to its pre-prohibition level for many years.
The focus of historical scholarship has shifted in recent years as scholars have increasingly explored how national prohibition affected American life and culture. Considerable debate has continued over the issue of whether prohibition stimulated the growth of organized crime. Scholars also have argued that prohibition has had a variety of other effects: encouraging single-issue pressure groups, diminishing support for all governmental programs designed to reduce the consumption of alcoholic beverages, glorifying the consumption of alcoholic beverages as a form of social protest, discouraging other proposals for governmental regulation of personal affairs, defeating moderate attempts to promote temperance, and weakening the labor union movement.
Historians have frequently noted prohibition's pervasive impact on legal institutions like prisons and courts. They have, however, generally ignored its impacts on American legal thought. The present study provides a partial correction to that omission by analyzing the prohibition-era changes related to federal criminal law.
This introductory chapter sets the stage for detailed assessments of five particularly important areas of federal criminal law. It begins with a brief history of prohibition and then offers an overview of the personnel and decisions of the United States Supreme Court during the era of national prohibition. From this background, the chapter describes a pattern that is characteristic of the Supreme Court's decisions in the prohibition era. That pattern provides a model for the analysis of individual areas of legal doctrine and the concluding assessment of prohibition's importance.
A Summary History of Prohibition
In colonial America and in the early republic, nearly everyone consumed alcoholic beverages. Even crowds at religious gatherings imbibed large quantities of liquor. Temperance proposals usually encouraged only abstention from spirits, not from malt liquors. Such partial abstention was, for example, the recommendation of Dr. Benjamin Rush, one of the earliest temperance advocates. The well-known revolutionary leader from Pennsylvania based his advice on some of the earliest scientific research into the ill effects of intemperate use of spirits.
Market forces led to dramatic increases in the consumption of alcohol during the first half of the nineteenth century. The expense of transporting corn from the Midwest to eastern markets encouraged farmers to distill the grain into whiskey. The new supply of whiskey led, in turn, to a rapid increase in consumption.
As reformers became concerned about the problems associated with increased drinking, the first organized temperance movement arose in the United States. Prominent among the early reformers were evangelical church leaders from New England. In 1826 temperance reformers founded the American Society for the Promotion of Temperance, the organization that began the first mass temperance movement. The society achieved considerable success, and reform efforts of the 1830s expanded the temperance program in two important ways. First, the temperance organizations began to urge, and then to demand, total abstinence from malt beverages as well as distilled liquors. Second, the first effort to impose legal restrictions appeared in the form of the "no-license" campaigns that encouraged local governments to refuse to license any retailers to sell liquor.
During the 1840s, leadership of the temperance movement shifted to reformers who concentrated on moral persuasion rather than legislation to accomplish their goals. The most successful of the groups relying on persuasion techniques were the Washingtonian societies. Their members were reformed drunkards who conducted revival-style meetings to advance the temperance cause.
The pendulum shifted to coercion in the 1850s, and reformers made the first concerted effort to enact prohibitory laws. Neal Dow, the mayor of Portland, was the leading advocate of state prohibition. Maine followed his leadership by enacting the first statewide prohibition law in 1851, and a number of other states followed Maine's lead.
This first wave of prohibition receded rapidly. Judicial decisions invalidated the statutes in several states, and the temperance movement never mounted a serious effort to overrule them. By 1869 statewide prohibition remained the law in only six states. Scholars have traditionally attributed the collapse of the prohibition effort to the rising sectional conflict over slavery, but recent studies have emphasized the failure of the statutes to achieve the temperance goal for which they were designed.
Prohibition reappeared as a significant political force in the second half of the nineteenth century. Some reformers took the third-party approach and formed the Prohibition Party, the first political party to make national prohibition its goal. The party played a pivotal role in the defeat of James G. Blaine in the presidential election in 1884, and it continued to increase its percentage of the vote until 1892. Nevertheless, the party never attracted wide support; after 1892 it declined rapidly as an independent political force.
In the 1870s, the campaign to abolish intoxicating liquors got a new lift from a series of anti-Saloon crusades. Sparked by an evangelical clergyman, women throughout the Midwest marched and held prayer vigils in front of local saloons. The prayer crusades closed a number of saloons and led to the formation of the Women's Christian Temperance Union (WCTU) in 1874. The WCTU supported nonpartisan referenda to establish statewide prohibition, and its strategy sparked a second wave of state prohibition. This second wave also receded, however. By the early 1890s, the number of states that retained prohibition statutes with statewide effect again dropped to six.
The story of national prohibition really begins in 1893 when a small group met at Oberlin College. They founded the Anti-Saloon League, a nonpartisan organization equally dedicated to the abolition of alcohol and political pragmatism. Commentators have long recognized the league's political innovation: It was the prototype of the single-interest pressure group. A more recent history has also documented the extent to which the league employed the new organizational techniques of modern business organizations.
The league always focused on achieving political success. As a contemporary observer noted, even the league's name reflected this pragmatic orientation.
The very name Anti-Saloon League was chosen to focus interest on the institution which was the fountain of the poisonous product which the "Pledgers" shunned and the WCTU would outlaw. Moderate drinkers and total abstainers, who balked at the ideal of absolute prohibition, were willing to admit that the American saloon had become a noisome thing.
A popular history has called attention to another indication of this pragmatic bent, the league's willingness to overlook personal indiscretions of legislators who voted for its positions.
[O]ne congressman served a term in prison for accepting a bribe of five thousand dollars in a case involving the withdrawal of four thousand cases of whiskey in Pittsburgh. When he was released he ran for reelection and was supported by the Anti-Saloon League; he had always voted dry.
The league gradually built an effective political base. Following a model established in Ohio, the league would initially concentrate its resources on securing local option ordinances. As public temperance sentiment grew stronger, the league would begin to lobby for prohibition on the state level. These efforts prompted the third wave of state prohibition laws. Always careful to avoid outdistancing public opinion, the league did not always insist that these laws be "bone dry." In many states, it accepted statutes that recognized limited situations in which intoxicating liquors could be lawfully possessed and consumed.
The league achieved an impressive series of victories prior to the adoption of national prohibition. At the state level, the league secured the enactment of prohibitory laws in a majority of the states. At the federal level, it persuaded Congress to use its power to regulate interstate commerce to make the state laws more effective.
The Supreme Court's interpretation of the Commerce Clause of the Constitution initially precluded states from taxing goods shipped in interstate commerce so long as they remained in the "original package" in which they had been shipped. A few months after the Supreme Court decision establishing the original package rule, Congress passed the Wilson Act, which subjected intoxicating liquor to state law upon its "arrival" in the state. Although the Supreme Court upheld the constitutionality of the Wilson Act, subsequent decisions narrowly construed the act to exclude intoxicating liquor that was shipped into a state if the sale occurred outside the state's boundaries.
Congress closed the transportation loophole in 1913 when it passed the Webb-Kenyon Act. The new federal statute reinforced state prohibition laws by forbidding the transportation of intoxicating liquor into a state in violation of state law. Four years later, Congress added a "bone dry" amendment to the Webb-Kenyon Act; the amendment forbade interstate shipment of intoxicating liquor into any state that prohibited its manufacture and sale, regardless of whether the state also banned importation of intoxicating liquor from outside the state.
In 1913 the league decided the time had come to push for national prohibition, and it led the successful battle. Within five years, the league had secured the submission of a constitutional amendment achieving its goal.
Initially the league seized on patriotic fervor associated with World War 1 to obtain the enactment of wartime prohibition. Relying on the need to conserve food to aid the war effort, supporters of prohibition persuaded Congress to impose liquor regulations that became increasingly strict as the years passed. A 1917 statute forbade the importation of distilled spirits; banned the use of foods, fruits, food materials, or feeds to produce distilled spirits for beverage purposes; and authorized the president to extend the ban to malt or vinous beverages. The following year, Congress first authorized the president to establish prohibition zones around "coal mines, munitions factories, shipbuilding plants, and ... other plants for war materials" and then forbade the sale of distilled spirits and malt or vinous liquors beginning June 30, 1919.
The league quickly followed up its wartime victory and achieved its ultimate goal. In 1918 it persuaded Congress to propose the Eighteenth Amendment. Less than fourteen months later, the states ratified the proposed amendment, and national prohibition became part of the constitutional order of the United States.
The Eighteenth Amendment included two substantive provisions and one procedural innovation. Section 1 became effective on January 16, 1920, one year following its ratification. It forbade the manufacture, sale, or transportation of intoxicating liquors in the United States as well as their importation and exportation. Section 2 granted Congress and the states "concurrent jurisdiction" to enforce the provisions of the amendment. Section 3 required ratification of the proposed amendment within seven years of its submission to the states.
Congress passed an enforcement statute after the Eighteenth Amendment had been ratified but before its effective date. Technically named the National Prohibition Act, the statute was popularly known as the Volstead Act after its chief sponsor, Representative Andrew Volstead of Minnesota. Title I of the act expanded the scope of wartime prohibition and continued the wartime restrictions until the effective date of the Eighteenth Amendment. Title II exercised Congress's enforcement power under Section 2 of the Prohibition Amendment.
(Continues...)
Excerpted from Federal Criminal Law Doctrines by Kenneth M. Murchison. Copyright © 1994 Duke University Press. Excerpted by permission of Duke University Press.
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Table of Contents
Acknowledgments1. The Prohibition Backdrop
2. Entrapment: The Emergence of a Legal Doctrine
3. The Fourth Amendment, 1920-1929: A Doctrinal Explosion
4. The Fourth Amendment, 1930-1933: Refinement and Rediscovery
5. Double Jeopardy: Crystallization of an Enduring Exception
6. Property Forfeitures: Interpreting the Language of the Volstead Act
7. Jury Trials: Primacy of Institutional Concerns
8. The Prohibition Era and the Development of Federal Criminal Law
Notes
Index