Prohibition and the Legislation of Morality

Today marks the 80th anniversary of the repeal of Prohibition. The 18th and 21st amendments are excellent case studies for a few key American political concepts: the limits of legislating morality and the adequacy of the Constitution to meet future challenges.

It’s a bit surprising that the 18th Amendment was ever passed. Overwhelmingly, alcohol has been a part of cultures stretching deep into the past and continues to be widely consumed in most portions of the world. The experiment with prohibition began and ended within the first half of the 20th century for America and a few other Western European countries. The repeal of Prohibition is a frequently used counter-argument against social conservatives, seemingly proving that the legislation of morality is ineffective and, in some cases, counter-productive. Prohibition most saliently illustrates the inability of governments to create new, positive moral laws that lack a basis in tradition and natural law. Adding a (relatively) arbitrary new law rooted in a highly specific, and relatively new moral position is, indeed, a losing battle for a government to fight. But legislating morality that has long been held by tradition and reason is much more feasible and, at times, advisable.

This principle is supported by the frequent inability of legislators to predict the outcomes of laws they pass. Foreseeing human action is a messy, imprecise business. The more actions are guided by intuition and individual reflection (e.g. morality) the greater the chance of unintended consequences. Prohibition, although passed by a supermajority of the country, was much more difficult than expected when it came to be enforced. Its legitimacy of legislation.

This morning, Jeffrey Toobin, as a guest on NPR, argued that the Constitution lacks the ability to meet the challenges of an America that’s outgrown it. He especially cited the Amendment process as unnecessarily difficult and undemocratic, allowing “10% of the country to hold the rest of us hostage”. Putting aside his obvious distaste for minority rights, he picked a poor date to criticize the amendment process. We demonstrated through the 18th and 21st Amendments that the country can not only pass amendments on controversial and important topics, but can easily change their mind when their folly is borne out. I’m glad the 18th and 21st Amendments were passed because they join the cannon of tradition through which we can learn from our mistakes.