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ASHLAND UNIVERSITY

PROGRESSIVISM AND

THE TWO ROADS TO PROHIBITION

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE ASHBROOK SCHOLARS PROGRAM AND

THE DEGREE OF BACHELOR OF ARTS

BY JEREMY HORTON

APRIL 29, 2009

DEPARTMENT OF POLITICAL SCIENCE

AND HISTORY

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The years after the Civil War saw not one but two new beginning s in American politics.

The first was to some extent a working and living out of the principles of the Founding, a

resumption of old ways now elucidated and ennobled by the tragedy of the War and by the

triumph over slavery. But very quickly this perpetuation or rebirth of the old freedom began

to give way before the advance of a New. Hope-filled experiments in American politics

began to be conducted, whose character was not altogether unlike the epochal experiment

dared by her ancestors in the garden, while God was not looking. The same pretension that

found its temptation, and purpose, and the liberation of the passions reached out for

knowledge of a new kind for the wisdom of history that was at once to completion and

nullification of the knowledge of good and evil. The results of that original experiment were

not as happy as had been predicted, but whether these latter-day political experiments

portend a similar disappointment and alike rebuked? remains to be seen. Already they

have proceeded, with occasional interruptions, for more than a century.

-Charles R. Kesler

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INTRODUCTION ................................................................................................................................................... 5

ACONSTITUTIONAL DISCREPANCY ......................................................................................................................... 5

THE VARIOUS ROADS TO REFORM ............................................................................................................................ 0

DRUGS, ALCOHOL, AND THE COMMERCE CLAUSE................................................................... 4

GONZALES V.RAICH AND THE CONTROLLED SUBSTANCES ACT................................................................. 4

19TH CENTURY LIQUOR COMMERCE AND THE WILSON BILL........................................................................ 9

THE OLD ORDER CHANGETH ........................................................................................................... 19

TWO CONCEPTS OF CONSTITUTIONALISM.......................................................................................................... 19

THE PURPOSE OF GOVERNMENT............................................................................................................................. 23

THE PRE-PROGRESSIVE TEMPERANCE MOVEMENT ............................................................... 28

AMERICAS OLDEST REFORM MOVEMENT.......................................................................................................... 28

TEMPERANCE,RELIGION, AND LIBERTY .............................................................................................................. 31

THE GREAT LEGAL FORTRESS OF INTEMPERANCE...................................................................................... 37

THE WCTUS FIGHT FOR A CLEAR BRAIN ..................................................................................................... 42

TEMPERANCE PROBLEMS IN PRE-PROGRESSIVE AMERICA........................................................................... 46

THE TEMPERANCE MOVEMENTS PROGRESSIVE TRANSFORMATION........................ 54

THE PRAGMATISM OF THE ANTI-SALOON LEAGUE ........................................................................................ 54

WEBB-KENYON AND THE EIGHTEENTH AMENDMENT.................................................................................. 58

PROGRESSIVE IDEAS, THE TEMPERANCE MOVEMENT, AND THE ANTI-NARCOTICS MOVEMENT 60

THE ANTI-NARCOTICS MOVEMENT ................................................................................................. 63

THE SPREAD OF DEMOCRACY .................................................................................................................................. 63

THE ONE-MAN REFORM MOVEMENT .................................................................................................................. 69

THE OPIUM EATERS...................................................................................................................................................... 73

THE BEGINNINGS OF FEDERAL NARCOTICS PROHIBITION ........................................................................... 80

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CONCLUSION ................................................................................................................................................. 84

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INTRODUCTION

How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!

Samuel Adams,Letter to John Pitts, January 21, 1776

A Constitutional Discrepancy

In September of 2002, Robert C. Luisi was convicted in a federal court for violating theControlled Substances Act on three separate counts of cocaine possession and distribution.1

Luisi appealed the initial decision to the U.S. District Court of Massachusetts where Judge

William Young presided. Luisi had admitted to distributing cocaine, but was basing his

appeal on entrapment accusations that he made against the federal agents who arrested him.

Not surprisingly, he was found guilty once again.2 The Judge stated, Although Luisis

entrapment defense at times lent the proceedings the air of The Godfather, the trial was

otherwise unremarkable.3 Except for one incident that occurred, this description was quite

accurate.4 Although the case was not noteworthy from anyones perspective other than Mr.

Luisis, a confrontation took place during jury deliberations that raised a significant question.

1 Title 21, section 841 (a) (1) of the U.S. Code states that it is unlawful to manufacture, distribute, or dispense, orpossess with intent to manufacture, distribute, or dispense, a controlled substance.http://www.usdoj.gov/dea/pubs/Controlled Substances Act/841.htm#

2 U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online,http://www.albany.edu/sourcebook/ind/DRUGS.Court_cases,_Federal.Convictions.2.html. From 2001-2004, thepercentage of people convicted of a federal drug offense when they were charged was 90.64%.

3 Judge D.J. Young, United States District Court for the District of Massachusetts, United States of America v.Robert C. Luisi Memorandum, July 25, 2008, 1-2; United States v. Luisi, 482 F.3d 43 (1st Cir. 2007), Luisi was an admittedmember of the La Cosa Nostra crime family. One of his superiors was working with the FBI and instructed Luisi topurchase and sell the cocaine, which was the basis for his entrapment defense. The U.S. Court of Appeals, First Circuitdecided that the original conviction was erroneous because the jury had not been properly instructed on the entrapmentdefense,http://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.html.

4 According to the Compendium of Federal Justice Statistics, cases involving drugs are extremely prevalent.

From 2002 to 2004, 38% of cases heard were drug-related. This means that of the 277,968 cases brought into federalcourt, 106,554 of them were brought on because of drug charges. Immigration cases are the next most common, butaccount for only about 24% of the total federal docket,http://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjs.

http://www.usdoj.gov/dea/pubs/csa/841.htmhttp://www.usdoj.gov/dea/pubs/csa/841.htmhttp://www.albany.edu/sourcebook/ind/DRUGS.Court_cases,_Federal.Convictions.2.htmlhttp://www.albany.edu/sourcebook/ind/DRUGS.Court_cases,_Federal.Convictions.2.htmlhttp://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.htmlhttp://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.htmlhttp://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.htmlhttp://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjshttp://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjshttp://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjshttp://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjshttp://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.htmlhttp://www.albany.edu/sourcebook/ind/DRUGS.Court_cases,_Federal.Convictions.2.htmlhttp://www.usdoj.gov/dea/pubs/csa/841.htm

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The law that Luisi was charged with breaking was the Controlled Substances Act and

considering the facts of the case, it should have been fairly easy to get a conviction. One juror,

however, made it unusually difficult. On the first day of deliberations, an argument broke

out between this juror and the judge. According to Judge Young, the juror refused to accept

the legitimacy of the drug laws at issue.5 The dispute began when the judge received a note

from the jury that read:

One juror is asking: Whereif two-thirds of both houses of congress voted in 1919 thatit was necessary to amend the constitution to give congress the power to ban mere

possession of a substance (prohibition of alcohol in that case)is the constitutionalgrant of authority to ban mere possession of cocaine today?

The judge answered this by saying the jury was not permitted to determine constitutional

issues about the law. Thomas Eddlem, the juror who posed the question, found this to be an

insufficient response. He continued to protest the validity of the case and would not allow

deliberations to go on, even though the judge was adamant that, the laws at issue were

constitutional and that those on the jury were not free to substitute their own views. 6

Eddlem was not swayed and cited the highest law of the land to make his case.

Article I, section 8 of the Constitution gives Congress the power to regulate commerce

among the several states, which means that the federal government has no right to

prosecute anyone for commerce that takes place within a state, argued Eddlem, including the

buying and selling of narcotics. Therefore, Congress did not have constitutional authority to

prosecute Mr. Luisi for selling cocaine since he did not cross any state lines to buy or sell it.

He offered as further evidence the passage of the Eighteenth Amendment in 1919, which

granted Congress the power to prohibit the manufacture and sale of intoxicating beverages

within the states. The federal government did not have this authority until one year after

5 Young, 3. The 43-page memorandum was written solely on his handling of this situation.6 Young, 3.

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ratification of the amendment.7 This amendment initiated national prohibition, as Congress

quickly passed legislation that nearly banned all alcoholic beverages in America.8 Given the

legal steps that had to be taken to enact alcohol prohibition, Eddlem wanted to know where

Congress found constitutional authority to prohibit narcotics.

Since Congress only possesses those powers that are enumerated to it through the

Constitution, Eddlem stated, it was never made clear to me where banning the mere

possession of drugs is authorized.9 Judge Young told Eddlem that the Supreme Court had

interpreted the Commerce Clause, to extend to enacting laws with respect to contraband,

including contraband laws.10 The Commerce Clause, according to the court, grants

Congress the authorization to enact legislation that regulates narcotics and/or narcotics

possession. Eddlem remained unconvinced. Growing impatient, the judge decided that

Eddlem was challenging the validity of the Controlled Substances Act for moral reasons and

was thus engaged in juror nullification, which gave the Court grounds to dismiss him.

Eddlem protested this, saying that he believed the Controlled Substances Act to be invalid

not because of his sense of morality, but because of the Constitutiondespite how the

Supreme Court had interpreted it.

The constitution should not be interpreted, Eddlem said, Interpret is a word I usewith reading a foreign language. The Constitutionis written in English. 11 He did not

object to the claim that Mr. Luisi had dealt drugs, but that the trial was being held in a federal

court. This argument did not convince Judge Young, who removed the rogue juror, and

7 Young, 4.8This legislation was the Volstead Act (1919) which defined the intoxicating liquor that Congress had the

right to prohibit under the 18th Amendment. While not specifically prohibiting consumption the act outlawed any meansby which to obtain it.

9 Young, 4. The precise way that Young quoted Eddlem is that it was never made clear to me where [banning

mere possession of drugs] is authorized.10Gonzales v. Raich, 545 U.S. 1 (2005); Wickard v. Filburn, 317 U.S. 111 (1942); U.S. v. Lopez, 514 U.S. 549 (1995).11 Young, 5.

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replaced him with an alternate.12 The judge claimed that Eddlem was removed for

disregarding the courts instructions and attempting to acquit the defendant because of moral

opposition to the law in question, which is otherwise known as juror nullification. Eddlem

fought to stay on the jury, but the judge believed it was clear that Eddlem, was unable to set

aside his personal beliefs and apply the law as instructed, which was a kind of juror

misconduct that could be classified as nullification.13 Although he insisted that he did

opposed the doctrine of jury nullification, Young removed Eddlem for acting as if he did. On

the day Eddlem was dismissed, the jury unanimously decided to convict Luisi.

The main focus of Youngs post-trial memorandum was jury nullification and the

dangers it poses to the jury system, and with it the rule of law and judicial independence. 14

Young quotes John Adams in his memorandum, stating that the impropriety of nullification

emanates from the notion that ours is a government of laws and not of men. 15 He

contended that people may work to change the laws if they do not agree with them, but they

12 Young, 35.13 Young, 6. Council for the defense, not surprisingly, argued for Eddlem to remain on the jury since he stated

that he did not believe it was at all right to determine guilt based on ones opinion of the law in question. 14 Young, 8. According to the memorandum, Eddlem referred to jury nullification as the philosophy of the fully

informed juror. This is a reference to a non-profit organization called the Fully Informed Jury Association (FIJA), whichholds the belief that The primary function of the independent juror is not, as many think, to dispense punishment tofellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical abuses of power bygovernment. FIJA believes that it is mans unalienable right to veto or nullify bad and oppressive laws. They even saythat men will be morally compelled to acquit defendants who are being tried for violating these kinds of laws. "FullyInformed Jury Association." Fully Informed Jury Association, American Jury Institute. http://www.fija.org/ (accessedAugust 12, 2008).

Judge Young rightly claims that this idea is dangerous, as Eddlem also stated. Acquitting those who havebroken the law if one thinks the law unjust, or even if it is unjust, undermines the purpose of the law itself. In theory, ifthis doctrine were universally accepted, no law would be enforceable. Any defendant could make the case that the lawthat he is being tried for violating is oppressive or tyrannical, which would mean that they should not be punished;putting the citizen above the law.

15 Young, 30. Judge Young explains that this statement is quoted in many Supreme Court decisions: Zuni Public

Schools Dist. No. 89 v. Department of Education; Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc.; and Patterson v.Shumate, but that the reason he uses it is because it is generally attributed to John Adams, the author of theMassachusetts Constitution.

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cannot disregard them.16 Although Young gave an impressive discourse on the importance

of the American jury system, he did not actually address the question posed by Eddlem.

Eddlem did not give a moral argument against the law that Robert Luisi broke; he

gave a legal argument. He did not say that possessing, distributing, or even being addicted

to cocaine and selling children as slaves to satiate that addiction was morally defensible. A

few months after the incident, he even said, I would not have hesitated to have convicted

Luisi in a state court of possession charges, nor in federal court of trafficking charges with

sufficient evidence. Even if no drugs had actually been transported across a state line, but

there was evidence of a conspiracy to do so, I would have voted to convict Luisi. 17 He did

not see how the Controlled Substances Act could be upheld by the clause in the Constitution

that reads: The Congress shall have power . . . To regulate commerce with foreign nations,

and among the several states. If Congresss powers are enumerated by the Constitution, so

as to not have the power to do anything outside of those enumerated powers then how does

the commerce clause permit the federal government to regulate the possession of drugs in

cases such as Luisis?

Young argued that if a jury acquitted an accused person due to a personal problem

with the law in question would undermine the rule of law completely. However, given thetext of the Constitution, Eddlem wanted to know how the statute in question did not

undermine the rule of law itself. Why was it necessary to amend the Constitution so

Congress would have the power to prohibit the intrastate commerce of a particular substance

16 Young, 32. In arguing against nullification, the judge acknowledged that there have been isolated instancesof benevolent nullification, such as the cases of people being acquitted of violating fugitive slave laws before the passageof the 13th Amendment, but that these few examples from bygone centuries, are exceptions to an otherwise abhorrentstring of lawlessness. Jury nullification is no longer justifiable in any case for him. His argument against the practice isconvincing, as he clearly makes the case that if it were accepted by the masses as a sound legal philosophy, jurynullification would completely undermine the rule of law and lead the nation towards anarchy. He quotes U.S. v Thomas(2ndCircuit, 1997) in his use of benevolent, and says that the majority opinion added some may regard [this type of

nullification] as tolerable.17 Thomas Eddlem. "'Rogues' and Humpty Dumpty Judges." LewRockwell.com.

http://www.lewrockwell.com/eddlem/eddlem24.html (accessed September 13, 2008).

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in 1919 and such an amendment has not been required to for the prohibition of other

substances? Why is constitutional authorization not needed for the government to prohibit

the intrastate use of other narcotics?

Judge Young did not answer these questions other than by saying that the Supreme

Court decided that the Commerce Clause had been interpreted to permit Congress to pass

laws relating to drugs that did not cross more than two state lines, and that Eddlem had to

judge the case according to that interpretation.18 The judge felt that this was the only way a

jury could simultaneously exercise its power and preserve the sanctity of the law. According

to Eddlem, this had precisely the opposite effect, destroying the entire purpose of the law.

They both argued that adherence to the law is required for a free government to sustain itself,

but they disagreed on how the law should be interpreted. Specifically, they disagreed on

how a particular law is determined to be constitutional and what constitutional means.

Though not a jurist, Eddlem was technically correct when he said that the Constitution

contains nothing that explicitly grants Congress the power to regulate the manufacture, sale,

or use of drugs that are not a part of interstate commerce. However, looking at the past

century it is clear that this has not caused many judgesespecially federal judgesto

question the constitutionality of the federal governments policy of drug prohibition.19

JudgeYoung defended the federal governments right to regulate narcotics and it is not surprising

that he won that particular battle, but the fundamental question remains unsettled.

The main issue of the confrontation was constitutional interpretation. Both argued

that the law must have more authority than men, but the inherent difficulty with this is that

manmade law cannot be separated from language and will therefore always be a matter of

interpretation. The judge claimed that the juror was creating his own law while the juror

essentially blamed the judge for doing the same thing. In describing the quarrel between

18 Young, 6.19Gonzales v. Raich, 545 U.S. 1 (2005) Clarence Thomas, William Rehnquist, and Sandra Day OConnor

dissented.

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himself and the judge, Eddlem used a dialogue from Lewis Carrolls Through the Looking Glass

as an analogy:

"When I use the word," Humpty Dumpty said, in a rather scornful tone, "it means justwhat I chose it to mean neither more nor less."

"The question is," said Alice," whether you can make words mean so many differentthings."

"The question is," said Humpty Dumpty, "which is to be the master thats all."20

Judge Young instructed Eddlem to judge the defendants guilt only according to his

interpretation of the Constitution, citing a Supreme Court ruling to justify his stance.21

Eddlem, on the other hand, cited the Eighteenth Amendment to validate his claim, but the

judge did not think it necessary to explain why the prohibition of narcotics was not preceded

by a constitutional amendment like the prohibition of alcohol was. It would perhaps be

unreasonable to accuse the judge of not fulfilling his duties by failing to answer the question

posed to him, but the question, nonetheless, deserves an answer. Why was the Constitution

amended to prohibit alcohol but such action was not necessary to prohibit narcotics?

In describing how Judge Young would only define the Constitution in such a mannerthat it supported his own opinion, it is somewhat fitting for Eddlem to have used a passage

from Carrolls Through the Looking Glass as an analogy.22 Redefining a word so that it can be

reconciled with a particular proposal was a very successful tactic used by the progressives

during the early part of the 20th century, with Woodrow Wilson arguably being the most

20 Thomas Eddlem. "'Rogues' and Humpty Dumpty Judges." LewRockwell.com.http://www.lewrockwell.com/eddlem/eddlem24.html (accessed September 13, 2008).

21Young is a Reagan appointed judge and Eddlem described him as doing a better than average job atexplaining the law in the case. According to Eddlem, Young even agreed that courts have gone too far in stretching theCommerce Clause to apply to things like firearms, citing the U.S. v. Lopezcase.

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prominent to do so as both a progressive scholar and politician. In his 1913 work, The New

Freedom(as opposed to the old freedom), Wilson also used a passage from Lewis Carrolls

book, but in this case to explain why he was forced to be a progressive. 23 In the passage,

the Queen grabs Alices hand and they begin to run incredibly fast. After doing so for about

as long as they can, they stop abruptly. Alice looks around and says, Why, we are just

where we were when we started! The Queen replies to this by saying, Oh yes, you have to

run twice as fast to get anywhere else.24

Wilson called this, the parable of progress, which expressed his sentiment that the

United States was stuck in the past and did not have the political tools necessary to improve.

The progress that Wilson and other progressives believed in required an expansion of the

governments powers and the government itself. This required that a new notion of

governments purpose be adopted. Wilson explains further:

The laws of this country have not kept up with the change of economic circumstancesin this country; they have not kept up with the change of political circumstances; andtherefore we are not even where we were when we started

I am, therefore, forced to be a progressive, if for no other reason, because we have notkept up with our changes of conditions, either in the economic field or in the political

field. We have not kept up as well as other nations have. We have not kept ourpractices adjusted to the facts of the case, and until we do, and unless we do, the factsof the case will always have the better of the argument; because if you do not adjustyour laws to the facts, so much the worse for the laws, not for the facts, because lawtrails along after the facts. Only that law is unsafe which runs ahead of the facts andbeckons to it and makes it follow the will-o'-the-wisps of imaginative projects.

In order for the progressives to adjust the law to the facts, the theory of constitutionalism

that the American founders had designed the Constitution according to would have to be

23 Wilson,Woodrow,The New Freedom, The Essential Political Writings. ed.Ronald J. Pestritto[Lanham:Rowman and Littlefield Publishers, Inc.,2005], 117. Wilson does not quote the book accurately but sufficiently

paraphrases it. Lewis Carroll, Through the Looking-Glass and What Alice Found There, University of Virginia Library,Electronic TextCenter[1993]

24 Wilson, The New Freedom,The Essential Political Writings, 117.

Comment [IT1]: This analysis will progressive political thought in the eacentury, the manner in which those iput into practice as actual policies, aninfluence of progressivism on the conconstitutional government in Americpredominating idea of progressivismAmerica was incapable of progress unlaws were adapted in consideration oproblems facing the nation.

Comment [IT2]:Why start with Wilson?

Why start this investigation with Wilall, Wilson vetoed the Volstead Act wCongress first passed it, which was thgave the Eighteenth Amendment teeduring his presidency that national alprohibition became law as a result ofideas he supported, though his veto oVolstead Act does not at first seem toThis alone would make Wilson an imcharacter given the question of this stanother piece of legislation passed thbasis for todays federal drug policy, one had his signature on it. It was thNarcotics Act of 1914, but before thatis looked at, the nations path towardprohibition must first be dealt with.

Wilson is arguably the most significapolitician in the history of Americanprogressivism but not solely because terms he served as president. Before that office, he made immense scholarcontributions to the political thought progressivism, helping to define the eWilson and other progressives were isuccessful in spreading the principlesprogressivism throughout the nationideas substantially altered the way thfederal government was understoodthroughout the 20th century. These idremain significant in modern Americlikely continue to influence Americanthought until the countrys demise. Timplementation of these ideas occurrresult of the social and economic situAmerica of the early 20th century, giv

progressives an opportunity that theytook advantage of.

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altered. Such a change would remove the obstacle that the progressives faced in trying to

implement their desired reform ideas, but it would have to come slowly. As Wilson himself

asserted, Wherever regard for public opinion is a firs t principle of government, practical

reform must be slow and full of compromises. 25 The progressive movement caused such a

gradual transformation to take place in the theory and practice of American government,

which greatly influenced the development of federal policies regulating alcohol and narcotics

in the early 20th century.

25Woodrow Wilson, The Study of Administration, [November 1, 1886]http://teachingamericanhistory.org/library/index.asp?document=465, (accessed April 3, 2009).

http://teachingamericanhistory.org/library/index.asp?document=465http://teachingamericanhistory.org/library/index.asp?document=465http://teachingamericanhistory.org/library/index.asp?document=465

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The Various Roads to Reform

The temperance movement began long before the progressive movement

emerged in the late 19th century. The anti-narcotics movement was much different in

this manner, as it was born in the progressive movement. This was one of the key

reasons that the anti-narcotics movement and the temperance movement had such

different outcomes regarding the two prohibitory policies of both substances. The

temperance movement, which caused the Eighteenth Amendment to be adopted, was

completely separate from the movement that resulted in the first federal legislation

used to prohibit narcotics.26

The different paths taken by the anti-narcotics movementand the temperance movement, and the reasons why such divergent paths were taken,

explains why alcohol prohibition was enshrined in the Constitution but narcotics

prohibition was not.27

Both of the movements against narcotics and alcohol fell within the broader

progressive movement, which also desired to reform social concerns such as

prostitution, child labor, pure food laws, and others. Each of these movements had

preferred means of addressing their respective issues, which usually fit into one of

three categories: abolition, regulation, or reformation. Movements that wanted to

enact reform on the federal level were limited in their options, as they hung their

proposals on certain constitutional hooks.28 The Constitution identifies five federal

powers that could be used by these reformers: territorial, postal, treaty, taxation, and

the commerce power.29

26 Deets Pickett; Wilson, Clarence True; Ernest Dailey Smith, Cyclopedia of Temperance, Prohibition, andPublic Moral, [New York, The Methodist Book Concern, 1917 ed.], 150. This is not to say that temperancesupporters were not antinarcotics reform supporters, but that the legal and social paths of the movements were

completely separate, as the Cyclopediastates that Through the efforts of temperance reformers, Congress wasinduced to pass an antinarcotic bill taking effect March I, 1915. 27 Richard F. Hamm, Shaping the 18th Amendment[Chapel Hill: The University of North Carolina Press,

1995], 135.28 Hamm, 9.29 Hamm, 4.

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Prostitution-related legislation was first passed in 1910 with the Mann Act.

This prevented the interstate trafficking of women for immoral purposes, but after a

series of Supreme Court decisions, it was eventually used to regulate prostitution

almost entirely.30 The movement against child labor worked to achieve statewide bans

due to its failure to enact federal legislation based on the taxing and commerce power.

The Pure Food and Drugs Act was enacted in 1906 as a regulatory measure over

adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and

liquors.31 Each reform movement of the progressive era carved out a distinctive

niche of interaction within the law as it then existed, according to Hamm.32 This was

due to the means used to enact the reform legislation. The different ways in which the

antinarcotics and temperance movements interacted with the American regime as it

was being transformed by the progressive movement accounts for why alcohol

prohibition was preceded by a constitutional amendment and narcotics prohibition

was done by statute alone.

The anti-narcotics movement caused the passage of legislation that would

result in narcotics prohibition to be gradually imposed across the United States. This

legislation, the Harrison Anti-Narcotics Act, was passed in 1914.33

It paved the wayfor the 1970 enactment of the Controlled Substances Act, which was the law that was

30 Caminetti v. United States, 242 U.S. 470 (1917). While the Mann Act was aimed to prevent whiteslavery, outlawing the transport of women across state lines for prostitution and human trafficking, this decisionnow regulated other immoral acts such as debauchery, adultery, and polygamy. This broad intrepretation ofstatutory power which would further prostitution, in this case, will resemble the understanding of narcoticslegislation discussed later in this study.

31 Federal Food and Drug Act of 1906 (The Wiley Act"), 59-384, 34 STAT. 768 (1906), 21 U.S.C. Sec 1-15 (1934).

32 Hamm, 3-4; Kurt Hohenstein, Just What the Doctor Ordered 252. This caused early scholars totry classifying them as autonomous entities, which weakened the notion that there was a singular progressivemovement that connected all the reform movements of the era. Theodore Roosevelt termed what all thesemovements had in common as the gospel of morality and the gospel of efficiency.32 What he meant was that

all progressive reformers were trying to improve the nation (gospel of morality) and had to determine the bestpractical way to do so in consideration of their particular reform goal (gospel of efficiency). .33 The possible exception to this may have been the Pure Food and Drug Act of 1906, which will be

briefly addressed but it is important to observe that although this legislation was the first major federal lawaddressing narcotics in a certain fashion, the primary purpose of it was not to deter the use of illegal drugs. Itspurpose in regulating drugs was to ensure that the consumer was aware of what was in medicines.

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questioned by Mr. Eddlem, and used to frame this study. As will be seen in the first

section of this paper, Congress passed the Controlled Substances Act as an extension

of the prohibitory policy that had been in place since the progressive era as a result of

the Harrison Anti-Narcotics Act. The modern constitutional defense of the Controlled

Substances Act, which constitutes the federal governments current narcotics policy,

will exhibit the reasons why the progressive era must be investigated in order to

determine the reasons why narcotics prohibition exists by statute alone and alcohol

prohibition was added into the Constitution.

In 2005, the Supreme Court ruled that the Controlled Substances Act was a

constitutional exercise of government power in the case of Gonzales v. Raich. It stated

in the ruling that the federal government ushered in a new era of federal regulation

under the commerce power" at the end of the 19th century and that the Constitution

began to be interpreted so that the federal government would have enough power to

deal with the nations changing social and economic circumstances.34 The progressive

movement, which helped initiate the new era, instigated a political transformation

that has been described as being, as radical as the American Revolution.35 It is this

transformation that must be examined to explain why the federal government felt thata constitutional amendment was necessary to prohibit alcohol, but not narcotics.

By understanding how the fundamental principles of the progressive

movement were slowly implemented into the political culture of the United States;

how these ideas were the same that provided the theoretical foundation for the

movements to prohibit alcohol and narcotics; and that the two movements used

34Roger Pilon, Chapter 3: The Illegitimate War on Drugs,After Prohibition: An Adult Approach to DrugPolicies in the 21st Century, [The Cato Institute, Washington D.C., 2000], 7. There is an answer that could have

been given to Eddlem, although the judge could not have given it in the situation, which is that the opinion thatthe federal government must have specific constitutional authority before doing something is, for the most part,not taken seriously anymore. As Pilon has noted, [T]o listen to recent State of the Union Addresses, oneimagines no problem too personal or too trivial not to be a f it subject for federal attention.

35 Thomas West and William Schambra, "The Progressive Movement and the Transformation ofAmerican Politics," First Pinciples Series, no. 12[July 2007], 1.

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divergent means in pursuit of their ultimate goals, it can be determined why narcotics

prohibition had a different legal outcome than alcohol prohibition. This will thereby

reveal that the political change in America that was caused by the progressive

movement indicates that both the judge and the juror were rationally justified in their

contrasting views of the constitutionality of narcotics prohibition in effect today.36

36 This does not mean, however, that both were right.

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DRUGS,ALCOHOL, AND THE

COMMERCE CLAUSE

Gonzales v. Raich and the Controlled Substances Act

The Harrison Narcotics Act and the Controlled Substances Act were both

enacted so that the federal government could regulate certain substances whether ornot they directly entered the stream of interstate commerce, or at least whether or not

those substances ever crossed a states border. The authority to do this is found in the

modern understanding of the Commerce Clause, which has been adopted by Congress

and, with few exceptions, the judiciary.37 It contends that Congresss regulating power

is not limited to that which takes place among the several states,commerce that

crosses state linesbut extends over all commerce that may directly or indirectly affect

interstate commerce. This was the interpretation used by the Supreme Court in

deciding the 2005 case of Gonzales v. Raich, which was the case referred to by Judge

Young in his explanation to Mr. Eddlem that the federal government has determined

that it possesses the constitutional power to regulate all narcotics activity within the

United States. In the courts decision, the majority stated that the Courts

understanding of the reach of the Commerce Clause, as well as Congress assertion of

37Carter v. Carter Coal Co., 298 U.S. 238 (1936). In one the of few exceptions, this decision limitedfederal power over the commerce of the coal mining industry. The court ruled that Congress was attempting toregulate the production of coal, through a tax measure, and not affect its commerce. The commerce of coalmining only has the potential to become part of interstate commerce after being mined, but during its production

is only subject to local authority. The regulation of coal was key to Franklin Roosevelts New Deal policies andthe decision in this case triggered FDR to attempt raise the number of justices on the court to 15 attempting togain the power to appoint one more justice for each one over 70. His proposal was not enacted and the casestood, its main impact being that the federal government could not regulate local evils (in this case coal mining)but only national evils, as well as being one of the few limits the court rules on Congress commerce power. Seealso note 49.

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authority thereunder, has evolved over time.38 This statement is of vital importance

to this investigation, and the rest of the courts decision will illustrate why

progressivism and the progressive era must be focused on to explain why alcohol and

narcotics prohibition have been given different constitutional treatments.

The defendant in Gonzales v. Raich was arrested for violating the Controlled

Substances Act due to possessing medicinal marijuana, which was legal in his home

state of California. He argued that the Controlled Substances Act was

unconstitutional because the narcotic he possessed had not entered the stream of

interstate commerce, as the marijuana had been grown and used within Californias

borders. Actually, his marijuana was never even a part of any commercial activityit

had not been bought or sold by him. The court, nonetheless, justified its decision

finding the defendant guilty with the commerce clause maintaining that, Congress

can regulate purely intrastate activity, if the activity has an effect on interstate

commerce. In this decision, the Supreme Court upheld the constitutionality of the

Controlled Substances Act and the federal policy of drug prohibition, and it admitted

to doing this because of how the commerce clause has been interpreted for the past

century. The interpretation of the commerce clause that was used for one hundredyears after the Constitutions ratification no longer applied, and this began to be

recognized at the end of the 19th century. It was at that time, according to the court,

that Congress ushered in a new era of federal regulation under the commerce

power, laying the groundwork for the modern understanding of constitutional limits

on federal power.39 The statements made in the Raich decision concerning the shift

that took place around the turn of the 20 th century are crucial in order in answering the

question posed to Judge Young by Mr. Eddlem.

38Gonzales v. Raich(2005).39United States v. Lopez(93-1260), 514 U.S. 549 (1995). William Rehnquist opinion of majority.

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As the court states in Raich, the way the Constitution is to be interpreted has

evolved over time, and the modern interpretation is drastically different than the

one held more than two centuries ago. The court seems to recognize that there have

been two stages in this evolutionary process that stand out in American political

history. Both stages ushered in a new era, and there have only been two stages in this

evolutionary process that stand out in American political history. The first era began

with the Constitutions ratification and ended around the turn of the 20th century, and

we are living in the era that succeeded it. As the court makes clear, the main concept

separating the eras is the different understandings of the federal governments

constitutional limits. Of course, both eras had many disputes over the precise nature

of these limits, but in general the federal governments power during the first century

of the Republic was limited by the text of the Constitution, while this was not the case

in the 20th century. In his dissent of the Raich decision, Clarence Thomas made an

argument concerning marijuana similar to Mr. Eddlems argument regarding cocaine,

saying that, In the early days of the Republic, it would have been unthinkable that

Congress could prohibit the local cultivation, possession, and consumption of

marijuana. Given the rationalization for its decision, it is clear that the majoritywould not have disagreed with this statement although they undoubtedly disagreed

with Thomass view that this should be a significant factor in the decision.To

understand the Constitution in this way, wrote Justice Thomas, meant that Congresss

power would have no meaningful limits.40

In upholding the Controlled Substances Acts constitutionality in Raich, the

court based its decision on case law that had been established during the new era of

constitutional interpretation. It claims this new era, which now spans more than a

century began as a reaction to rapid industrial development and an increasingly

40United States v. Lopez (1995). Clarence Thomas, Dissent

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interdependent national economy, that was emerging in the late 19 th century.41

Constitutional scholar Christopher Wolfe has dubbed the period lasting from the

1880s until the 1930s as the transitional era, which describes the way in which the

commerce clause was beginning to be interpreted during those years. This affirms the

courts statement that the manner in which the Constitution was interpreted in the

early Republic changed by the 20thcentury, however, Wolfes use of the term

transitional indicates that the break from the old understanding was not as clean as

the court suggested. As he put it, there is no area in which the break with the

constitutional interpretationof the traditional era is very sharp.42 This time period,

the progressive era, must be investigated in order to determine why narcotics can be

prohibited by federal statute while alcohol prohibition required the enactment of a

constitutional amendment five years later. This is not only because the constitutional

theory used to justify the federal governments current narcotics policy emerged

during that era, as the court recognized in Raich, but also because the federal

government first began regulating narcotics during that time.

The Controlled Substances Act constitutes the nations current narcotics policy

but as the court recognized, it was not Congress first attempt to regulate the nationalmarket in drugs; it was simply the first campaign of the war on drugs declared

by Nixon.43 The court says that the initial efforts at control were labeling regulations

stipulated by the Food and Drug Act of 1906, but:

Aside from these labeling restrictions, most domestic drug regulations prior to1970 generally came in the guise of revenue laws, with the Department of theTreasury serving as the Federal Governments primary enforcer. For example,

41 The court identified the enactment of the Interstate Commerce Act in 1887 as the exact starting point

of this era.42 Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-MadeLaw, Revised Ed., [Rowman and Littlefield, 1994], 164. Wolfe asserts that the transitional era began with thepassage of the 14thAmendment in 1868 because Certain rights previously left to state protection were broughtunder the protection of the federal government. Ibid., 124.

43Gonzales v. Raich (2005). http://www.law.cornell.edu/supct/html/03-1454.ZO.html

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the primary drug control law, before being repealed by the passage of the CSA,was the Harrison Narcotics Act of 1914.44

Until being repealed in 1970 due to the Controlled Substances Acts passage,

the Harrison Act had been the primary drug control law in the United States, which

makes it the focus of our question investigation.45 If it was necessary to amend the

constitution to give congress the power to ban mere possession of a substance

(alcohol) in 1919, Eddlem asked, where is the constitutional grant of authority to ban

mere possession of substances classified as narcotics today?46 The Harrison Narcotics

Act provided the framework for the federal governments drug control policy until themore comprehensive Controlled Substances Act replaced it over half a century later.47

The specific regulations laid out by the Controlled Substances Act are stricter and

more comprehensive than those found in the Harrison Act, but both the same

progressive principles can be seen in both.

As is evident by the Supreme Courts decision in Raich, the Commerce Clause is

currently interpreted in such a way that it restricts all commerce related to narcotics,

even when a particular state loosens its own regulations of them.48 The court

interpreted the Constitution in the exact opposite way during the 19th century in

regards to liquor commerce, which essentially nullified any prohibitory laws that were

passed by an individual state. After a series of rulings that invalidated state laws

44 Ibid. Emphasis added.45Gonzales v. Raich (2005). It was not as comprehensive or strict as the Controlled Substances Act, but

it was the first time that the federal government attempted to strictly regulate the possession and sale ofnarcotics.

46Paraphrased from Eddlems quote in introduction, see page 1.47

Gonzales v. Raich (2005). The Controlled Substances Act was enacted to consolidate various druglaws on the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugsto prevent diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit

drugs. 48 Vince Reighard, The Necessary and Proper Clause in Gonzales v. Raich, paper submitted forConstitutional Powers, Ashland University, Spring 2007. Reighard says of the courts ruling, This conclusionwhich suggests the states are like childrenwho need the supervision of the National Mother Governmentisrepugnant to our federal system of government in which states are given the authority and trust to see their ownaffairs within their borders.

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regulating or prohibiting liquor, the movement came to believe the ultimate success of

the cause depended on ensuring the eventual adoption of nationwide prohibition. By

using the federal commerce power to nullify state prohibition laws before the 20th

century, the court set the temperance movement on a course towards a constitutional

amendment. Once the new era of federal regulation had begun; Congress, as well as

the Supreme Court, aided the temperance movement on its course towards its

ultimate goal.

19th Century Liquor Commerce and the Wilson Bill

Since the Commerce Clauses effect on drug policy framed the central question

of this investigation, it must be determined how the clause was applied to questions of

earlier substance regulation, in this case alcohol regulation leading up to the

Eighteenth Amendments passage. As we have seen, the Supreme Court has ruled the

Controlled Substances Act to be within Congresss power to regulate

commerceamong the several states. Because it defines the regulatory power of the

federal government, this phrase is traditionally referred to as the Commerce Clause.49

However, it is not the only part of the Constitution that mentions the power toregulate commerce. Rather than restricting the federal governments power as the

traditional Commerce Clause does; Article I, section 10 restricts the regulating power

possessed by the states, reading: No State shall, without the Consent of the Congress,

lay any Imposts or Duties on Imports or Exports, except what may be absolutely

necessary for executing it's inspection Laws.50 This passage played a major role in the

temperance movement during the 19th century. It was applied in such a way that it

harmed the temperance movement; at least, in the short term. This was a key factor in

making alcohol prohibition a national issue.

49 Article 1, section 8.50 U.S. Constitution art. I, sec. 10.

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Before the Civil War, many state laws restricting the use and/or trade of

alcohol were challenged on constitutional grounds as violating the federal

governments power to regulate interstate commerce. During this era, however, the

state laws were held up by the U.S. Supreme Court and Chief Justice Taney, who said

that there was nothing in the constitution of the United States to prevent [a state]

from regulating and restraining the traffic, or prohibiting alcohol within the borders

of that state.51 After the war, the Supreme Court began to interpret the Constitution in

favor of the liquor trade and against states trying to restrict it. In the same way that

the Commerce Clause is today used to nullify the narcotics policies of individual states

which are more lenient than prescribed by the Controlled Substances Act, in the late

19th century; Article I, section 10 was used to essentially nullify any efforts made by

individual states to prohibit alcohol.

From the point of view of many 19th century temperance reformers, the federal

governments policy on liquor commerce asserted that an individuals right to drink

took precedent over a states right to regulate its own commerce. Although this

seemingly should have outraged all temperance reformers, and it did for many, many

in the movement used it as an opportunity. To the radical prohibitionists, drinkingwas unquestionably evil and therefore completely unacceptable anywhere in the

United States. Allowing it in some states but not others blurred the line between good

and evilnational prohibition was the only acceptable policy.52

In addition to their disdain for states having the power to choose between right

and wrong, reformers were also not too keen on the varying degrees of regulation that

states implemented reform, as not all chose total prohibition, nor were they completely

supportive of local option laws, which were state laws that gave towns the power to

determine alcohol regulations. The nullification of these laws was a victory for the

51 License Cases, 1847. There were six separate opinions upholding the state prohibition laws inMassachusetts, New Hampshire, and Rhode Island; Cyclopedia of Temperance, Prohibition, and Public Morals, 158.

52 Hamm, 36-38.

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liquor industry in a sense, but it also caused the temperance movement to raise its

sights. In 1890, immediately after the Supreme Court handed down the ruling in Leisy

v. Hardin, which wasthe last to nullify a states alcohol prohibition, one of the leaders of

the United States Brewers Association told leading temperance publication, TheVoice,

its a blessing to you in disguise.53 The journals writers and other radical

prohibitionistsunderstood what he meant by this. This ruling helped to fuel a crisis

over the Constitution that had long been brewing over the federal governments

proper role in controlling the liquor commerce among the states.

The precedent that the Court had used to shape liquor laws throughout most of

the 20thcentury was found in John Marshalls ruling of Brown v. Maryland in 1827. The

case concerned a tax that the state of Maryland was levying on importers and

wholesalers of foreign goods. The court unanimously ruled that Maryland was

violating the constitution by doing this, saying that as long as the item remained in its

original form or package in which it was imported, it was still federally protected

commerce and beyond the regulating powers of the state, until it had been sold once

inside the states borders. This became known as the original package doctrine and it

helped to shape the federal governments stand on alcohol regulations almost until the20th century. Another precedent set forth by the Supreme Court known as the

freedom of commerce doctrine was established nearly fifty years after Brown v.

Maryland and was equally important in shaping federal alcohol policy in the midst of

the temperance movement.

The freedom of commerce doctrine was articulated in the 1876 case Welton v.

Missouri, and declared that a state could not impede commerce by imposing taxes or

regulations without having express permission from Congress to do so. The specific

restriction found unconstitutional in Welton was a Missouri law that taxed merchants

53 Hamm, 69. August Thomann, Director of Publication for USBA, in an interview with the Voice, aNew York based temperance publication.

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who sold goods produced outside of the state. The court cited Brown v. Maryland in its

decision, saying that both of the cases contained a similar difficulty in drawing the

line of distinction between the restriction upon the power of the States to lay a duty on

imports, and their acknowledged power to tax persons and property.54 Also like the

Brown decision, the court took the position in Weltonthat it would be premature to

state any rule which would be universal in its application to determine when the

commercial power of the Federal Government over a commodity has ceased.55

Though being largely based on the original package doctrine established by Marshall

in Brown, the Weltondecision rejected the Marshall courts opinion of the dormant

commerce clause. Congress had not said anything about the Missouri tax being

questioned in Welton, voicing neither disapproval nor support of it. This was a major

departure from Marshalls decision in Wilson v. Black Bird Creek Marsh Company, which

argued that Congress in deed possessed the power to regulate interstate commerce

and that any state regulation conflicting with this federal power was void, but also

that if there was no federal act that the state was in conflict with, then Congresss

power to regulate was in its dormant state, and any state regulations not affecting

interstate commerce were legitimate.56

Missouri had interpreted Congresss silence asapproval for the enforcement of their tax. The court stated that Missouri would have

lost this case anyways due to the original package doctrine, but it went a step further

by completely nullifying the tax and declaring it to be unconstitutional.

54Welton v. Missouri(1876). Majority opinion delivered by Justice Field.55Welton v. Missouri(1876). In the Browndecision, John Marshall used fairly vague language, stating

that it would be premature to make a ruleuniversal in its apllication.56Willson v. Black Bird Creek Marsh Co., 27 U.S. 2 Pet. 245 245 (1829). The Black Bird Creek Marsh

Company was incorporated by an act of the Delaware General Assembly and built a dam across a creek adjacentto their land. The commerce conducted by way of the dam was in question but the dam was ruled as notaffecting interstate commerce and the court ruled that the incorporation of the company by Delaware was notrepugnant to Congress Constitutional authority to regulate commerce between the states because the creekdid not flow into or over anything under federal statute. It was therefore a state issue of Delaware and did notfall under federal power to regulate interstate commerce.

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This introduced America to the freedom of commerce doctrine. If Congress did

not take any action regarding a regulation that a state imposed on imported goods, it

was equivalent to a declaration that inter-State commerce shall be free and

untrammeled. The power to regulate interstate commerce was vested in solely the

federal government and if it did not regulate commerce in a particular instance, then

that commerce was to be free from any interference.57 If Congress did not approve of

a specific tax levied by a state on particular imported goods then the Court determined

the state to be infringing on the federal governments commerce power. This

interpretation of state regulatory power raised questions of how the courts would treat

state prohibition laws, and whether or not they would be a viable option for the

temperance reformers to pursue.

The precedent set by the court in the Welton decision nullified taxes that states

imposed on imported alcohol, which did not necessarily mean that state prohibitory

laws would also be found unconstitutional.58 The freedom of commerce and original

package doctrines applied to the specific situation in the Welton case, but did not

establish a hard and fast rule that clearly distinguished between federal and state

commerce. The court had stated in both the Brown and Welton decisions that they didnot want to establish a universal rule that would be applied in all cases. This gave

the liquor industry and law enforcement officials some gray area in which to operate

until the court ruled on how these doctrines would apply to state prohibitory laws.

Until the court addressed this in 1888, liquor traders largely ignored prohibition laws,

using the freedom of commerce and original package doctrines to justify importing

their product into the dry states. The merchants used the railroads to ship liquor into

5791 United States Reports (1876) 275. As quoted in Hamm, 61.58

Hamm, 61. Until the Weltonruling nullified it, Michigan had a law that taxed liquor sellers whoimported their liquor from outside the state and had no place of business in the state. The courts during theReconstruction saw that a Congress that was dormant in commerce did not permit the state to levy taxes on out-of-state trade, this regulation was still reserved to the federal government. These were viewed as barriers to freecommerce and infringements on the federal commerce power. This raised into question the viability of stateprohibition laws and how they would be interpreted by the court.

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the dry portions of the United States and they did it successfully.59 Some law

enforcement officials, like the mayor of Atlanta, understood the federal power to

regulate interstate commerce as restricting their ability to enforce certain alcohol

regulations. Other officials did their best to enforce their states liquor laws. These

men did not believe that any doctrine superseding a states police powers was

legitimate even if the nations highest court opined that it was. Up until 1888, these

vigilante-like officials were engaged in a fierce contest with the liquor merchants. The

Supreme Courts decision in the case Bowman v. Chicago and the Northwestern Rail Road

was handed down in 1888, siding with the liquor men. Although seemingly helping

the alcohol business, it also created a new problem for it by.

The Supreme Court makes prohibition a national question, TheVoice declared

after the 1888 ruling in Bowman v. Chicago and Northwestern Rail Road. The Bowman

brothers were brewers based in Iowa, which had laws prohibiting anyone from

shipping liquor into the state or within its borders if they did not have the specific

authorization to do so.60 These brothers challenged the constitutionality of this

regulation on the grounds that it violated their ability to participate in free and

unrestricted commerce, and the Supreme Court supported their argument. The courtruled the law unconstitutional despite the fact that they agreed with a major aspect of

Iowas argument, opining that the law functioned as an element of a general design

of protecting the health and morals of its people, and the peace and good order of the

state, against the physical and moral evils resulting from the unrestricted manufacture

and saleof intoxicating liquors. However, they ruled that the Iowa law affected

commerce of other states and was a barricade to trade that Commerce did not desire.

The attorney for the Bowman brothers stated that the effect of this ruling was to

59 Ibid., 61. In 1886, theAtlanta Constitutionestimated that 20,000 gallons of liquor were imported intothe dry counties of Georgia in one month. Atlanta ConstitutionOctober 19, 1886

60Jerry Harrington, Bottled Conflict, Keokuk and the Prohibition Question, 1888-1889,Annals of Iowa46 (Spring 1983): 596-600. As quoted in Hamm, 63. Professional druggists were the only ones who whe weregranted authorization.

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render nugatory prohibitory law. Those within the temperance movement agreed

with his assessment and intensified their calls for national action.

The prohibitionists believed that national prohibition [was] the most direct

road to state prohibition since the Supreme Court had invalidated state prohibitory

efforts. The federal governments power to nullify state regulatory laws of alcohol was

reinforced in the aforementioned ruling in the case Leisy v. Hardin,which flooded the

dry states with liquor.61 The Bowman decision ensured that a state could not restrict

the importation of liquor across its borders from another state, but it left open the

question concerning a states ability to regulate liquor once it had crossed its borders

and had been sold, which definitively made it the states commerce.62 The Leisy

decision made it so that state laws prohibiting the sale of alcoholic beverages within its

own borders were invalid if the alcohol had not yet become a part of the states

commerce. These laws had been used in efforts to sidestep the courts ruling in

Bowman by making it illegal to sell any liquor that had been legally imported, but

these laws were now nearly obsolete. The states could now only regulate liquor that

had already been sold within its borders, meaning that it could virtually regulate

nothing at all, because it would have most likely been consumed after the first sale.The opinion put forth by the majority in Leisy was initially seen as a serious

blow to the temperance cause, but it also provoked it. The court had based its decision

on the original package doctrine, saying that the states could not regulate the sale of

liquor that had not entered the stream of intrastate commerce without congressional

permission. This gave them a plan of action. The use of the phrase, without

congressional permission, instilled within the temperance movement a belief that

Congress could grant this power to the states and that the court must uphold such

61 Hamm, 70.62 Ernst Freund, The Police Power, Public Policy, and Constitutional Rights, [University of Chicago Press,

1904],http://books.google.com/books?id=6AMKAAAAIAAJ, 217.

http://books.google.com/books?id=6AMKAAAAIAAJhttp://books.google.com/books?id=6AMKAAAAIAAJhttp://books.google.com/books?id=6AMKAAAAIAAJhttp://books.google.com/books?id=6AMKAAAAIAAJ

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authorization.63 In response to the Leisy decision, Congress enacted the Wilson Act,

which was the first major piece of federal legislation to somewhat restrict the liquor

traffic in the history of the United States.

The Wilson Act gave states the power to regulate all liquor commerce that took

place within their own borders; whether or not the liquor had been imported, become

part of the states commerce, or remained in its original package. Though a victory for

the temperance groups such as the Womens Christian Temperance Organization and

the Prohibition Party, neither of these organizations made an effort to get this law

passed because it had been authored by James Wilson, a Republican described as no

temperance fanatic, who wrote the bill in the attempt to remove 64 Wilson and the

Republican Party proposed this legislation because it feared the possible consequences

of the Leisy ruling, which had been compared to the Dred Scot case by the Union Signal

and evoked similar rhetoric by the Washington Post, which stated that if the ruling

was not reversed by the Court or nullified by an act of Congress, the battle of states

rights will have to be fought over again.65 Most prohibitionists and temperance

organizations did not take any significant action to ensure passage of this bill, nor did

they rejoice when it was ratified into law.While ensuring that states had the power to regulate liquor, the law also

seemed to lessen the need for federal prohibitory legislation in the view of the

temperance movement. This was exactly the goal of the Republicans who wanted to

confine the prohibition issue to the states and keep it away from the national stage.

While the bill was seemingly written to preserve states rights, there were many who

saw it as doing the opposite. The legislation caused questions to be raised about the

extent of federal power as well as the future of traditional state regulatory power. The

63 Hamm, 70.64 Hamm, 79.65 Washington Post, June 26, 1890; Union Signal, July 31, 1890. Quoted in Hamm, 73.

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progressive movement was in its earliest stages and the federal governments power

and scope was just beginning to evolve.

Not surprisingly, it was Southerners who protested the loudest over the

Wilson Bill, saying that it only appeared to be a measure in favor of states rights but

actually granted the federal government additional power. One congressman stated

that, if passed, the Wilson Bill would infer that Congress had the ability to both limit

and expand the powers reserved to the states. Echoing Alexander Hamiltons

argument of Federalist #84, Texas Democrat David Culberson declared that the

Wilson Bill indicated that Congress assumes to become a grantor of power, rather

than a protector of rights.66 Culberson and those like him presented substitute ideas

for restoring the states police power to regulate liquor commerce. Those who

supported the bill criticized these alternative proposals as well as those excellent

gentlemen, who they claimed, always find a constitutional objection in the way of

right action.67 Defeating their critics, the Republicans passed the Wilson Act on

August 8th, 1890.

Thirty years before the Eighteenth Amendments ratification to prohibit liquor-

related commerce within states, the Supreme Court had interpreted the Constitutionin such a way that it nullified any laws passed by individual states that prohibited or

heavily taxed alcohol imported across their borders. While these rulings initially

appeared to be a major setback for the temperance movement, they also helped ensure

passage of the Wilson Act, which was enacted so that state prohibitory laws could be

66 Hamilton, Federalist 84, as quoted in Hamm, 84. "For why declare that things shall not be donewhich there is no power to do? Why for instance, should it be said, that the liberty of the press shall not berestrained, when no power is given by which restrictions may be imposed? I will not contend that such aprovision would confer a regulating power; but it is evident that it would furnish, to men disposed to usurp, aplausible pretence for claiming that power. They might urge with a semblance of reason, that the constitution

ought not to be charged with the absurdity of providing against the abuse of an authority, which was not given,and that the provision against restraining the liberty of the press afforded a clear implication, that a power toprescribe proper regulations concerning it, was intended to be vested in the national government. This mayserve as a specimen of the numerous handles which would be given to the doctrine of constructive powers, by theindulgence of an injudicious zeal for bills of rights.

67 Hamm, 85.

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enforced. This law set the course for the temperance movement for the next thirty

years, as it was the first time that the federal government had acted to support the

prohibitory policies of the states.68

The Wilson Act was enacted during the first few years of the progressive

movement.69 The enactment of the Wilson Act, as well as the Supreme Courts

unanimous decision upholding it upon a constitutional challenge, indicated that the

progressive movement was beginning to have some effect in America. Congress began

to somewhat involve itself in the regulation of commerce by using its powers to aid

the states in enforcing their laws. The Wilson Act laid the groundwork for the Webb-

Kenyon Acts passage in 1913, which was followed in 1919 by the enactment of the

Eighteenth Amendment. In between the ratification of those two laws, the

government had passed the Harrison Narcotics Act and was gradually implementing

a policy of narcotics prohibition. All three reflected the principles of progressivism

and were a result of the progressive movements success in the early 20th century.70 .

68 Hamm, 90-91; The text of the Wilson Act reads: Be it enacted by the Senate and House of Representativesof the United States of America in Congress assembled, that all fermented, distilled, or other intoxicating liquors orliquids transported into any State, or territory or remaining therein for use, consumption, sale or storage therein,shall upon arrival in such State or territory be subject to the operation and effect of the laws of such State orterritory enacted and in the exercise of its police powers, to the same extent and in the same manner as thoughsuch liquids or liquors had been produced in such State or territory, and shall not be exempt therefrom by reasonof being introduced therein in original, packages or otherwise.

69 The Wilson Act was challenged in the case In Re Rahreronaccount of the courts rulings in LeisyandBowmanthat the state prohibitory laws were unconstitutional, which meant that there were no state laws

prohibiting the sale of alcohol. Rahrer, the defense claimed, had therefore been arrested under a state lawenacted by a national Congress. The court dismissed this argument, saying that they had merely ruled thatstate laws prohibiting alcohol could only be enforced against property strictly within the jurisdiction of thestate.

70 James H. Timberlake, Prohibition and the Progressive Movement: 1900-1920[Cambridge,Massachusetts: Harvard University Press, 1963, 148; Hamm, 122, 263.

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THE OLD ORDER CHANGETH

Progress! Did you ever reflect that that word is almost a new one? No word comes more often or

more naturally to the lips of modern man, as if the thing it stands for were almost synonymous

with life itself, and yet men through many thousand years never talked or thought of progress.

They thought in the other direction. Their stories of heroisms and glory were tales of the past.

The ancestor wore the heavier armor and carried the larger spear. "There were giants in those

days." Now all that has altered. We think of the future, not the past, as the more glorious timein comparison with which the present is nothing. Progress, development, those are modern

words. The modern idea is to leave the past and press onward to something new.

--Woodrow Wilson

It is often asserted that the world has made a great deal of progress since 1776, that we have had

new thoughts and new experiences which have given us a great advance over the people of that

day, and that we may therefore very well discard their conclusions for something more

modernIf all men are created equal, that is final. If they are endowed with inalienable rights,

that is final. If governments derive their just powers from the consent of the governed, that is

final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny

their truth or their soundness, the only direction in which he can proceed historically is not

forward, but backward toward the time when there was no equality, no rights of the individual,

no rule of the people.

--Calvin Coolidge

Two Concepts of Constitutionalism

In the case earlier discussed, U.S. v. Luisi, the argument between the juror and

the judge signifies more than contrasting opinions concerning whether or not the

federal government has the constitutional authority to prohibit narcotics. They

represent two understandings of the American system of government that are

fundamentally opposed to one another, but somehow manage to coexist. The theory

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espoused by Eddlem was akin to the older understanding of American

constitutionalism and closely parallels that which was prevalent in the first hundred

years of the American republic. Judge Youngs interpretation of the Constitution was

representative of the modern notion of constitutionalism, which emerged as a result of

the progressive movement in the early 20th century and forever altered the theory and

practice of American government. The progressive understanding of the Constitution

holds that it is a living document and its meaning is not fixed but evolves with the

times. According to Woodrow Wilson, this progressive understanding of

constitutionalismjuxtaposes the founders understanding, which held that the

Constitution had a fixed meaning and was comparable to a machine, not a living

organism.71 The dissonance between these two constitutional conceptions is ultimately

irreconcilable as both are based on deep-seated premises that go beyond the text of the

Constitution.

Since the Constitution does not specifically enumerate to Congress the power to

prohibit narcotics, and by the fact that alcohol prohibition was preceded by a

constitutional amendment, scholars such as Roger Pilon have called narcotics

prohibition constitutionally illegitimate.72

Nothing could convince men like Eddlemor Pilon that narcotics prohibition is a legitimate, constitutional exercise of federal

power. The understanding that they have of the Constitution prevents them from

accepting federal narcotics prohibition as a constitutionally justifiable policy. Coming

to any other conclusion would require them to alter the premise of their argument.

The premise of Eddlems argument permitted two responses that the judge could have

given: dismiss the case or uphold an unconstitutional law.73 I suspect [Judge Young]

71

Wilson, The New Freedom, The Essential Political Writings, 121.72Pilon, The Illegitimate War on Drugs, 23.73 Eddlem indicated that he would have only accepted this sort of answer by writing a response to a

statement that Judge Young made in his memorandum, which read: The Court spent several minutesattempting to explain how Congress had the authority to ban drug possession but continued to receive evasiveresponses. Eddlem, of course, fervently disagreed with Youngs recollection of the dispute since he did not feel

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didnt make the legal argument, he later said, because there was no legal argument

to be made. His argument was based on the notion that the Constitution imposes

strict limits on the federal governments power. If one accepts this as true, then it is

nearly impossible to dispute Eddlems conclusion that federal narcotics prohibition is

unconstitutional.

However,Judge Youngs argument is similar to Eddlems in this way; if one

accepts his premise to be true, then his conclusion almost certainly follows and the

federal government can constitutionally prohibit narcotics. The judges argument was

based on the notion that the Constitution does not impose strict limits on the federal

governments power, but rather that the Constitution can be broadly interpreted. In

their quarrel over the Constitution, these two men illustrated the two concepts of

constitutionalism that have shaped, and continue to shape, the theory and practice of

American constitutional government. These two opposing concepts are engaged ina

battle for America's soul, which was initiated over a century ago, [and] is still

raging.74

The founders wrote the Constitution to establish a government that would

operate in a mechanized manner and according to the self-evident, immutable truthsfound in the Declaration of Independence. Wilson said that they, constructed a

government as they would have constructed an orrery,to display the laws of nature.

Politics in their thought was a variety of mechanics. He dismissed this and criticized

it by saying, The trouble with the theory is that government is not a machine, but a

living thing. It had to adapt and evolve with the circumstances of modern society.

The Constitution was written on the theory of natural rights, which was why Wilson

and the other progressives found it to be problematic. The idea of eternal and

that he was given any argument for the laws legitimacy.http://dangeroustalkblog.blogspot.com/2008/08/judge-for-yourself-judge-william-g.html

74Thomas G. West, and Schambra, William, The Progressive Movement and the Transformation ofAmerican Politics,http://www.heritage.org/Research/Thought/fp12.cfm.

http://www.heritage.org/Research/Thought/fp12.cfmhttp://www.heritage.org/Research/Thought/fp12.cfmhttp://www.heritage.org/Research/Thought/fp12.cfmhttp://www.heritage.org/Research/Thought/fp12.cfm

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immutable rights, according to Frank Johnson Goodnow, a contemporary of Wilsons,

did not permit of their amendment in view of a change in conditions. The

progressives rejected the founders idea of constitutionalism, but did not want to

completely rewrite the Constitution. However, they wanted it to be acknowledged

that, as Wilson said, Society is a living organism and must obey the laws of life, not of

mechanics; it must develop. Furthermore, he said:

All that progressives ask or desire is permissionin an era when"development," "evolution," is the scientific wordto interpret the Constitution

according to the Darwinian principle; all they ask is recognition of the fact thata nation is a living thing and not a machine.75

The progressives wanted to abandon the fundamental principles that the

Constitution was founded on, but this would have to be done gradually. As Wilson

recognized, you cannot tear up ancient roots and safely plant the tree of liberty in soil

which is not native to it. I believe that the ancient traditions of a people are its ballast;

you cannot make a tabula rasaupon which to write a political program. The

progressive movement, therefore, had to respect the institutions set up by the

Constitution and go very slowly and very carefully about the very dangerous task of

altering them.76 Redefining the notion of governments purpose that had been

postulated by the American founders was necessary before they could efficiently

implement the types of reforms that they felt the circumstances required. According

to Frank Johnson Goodnow:

The tremendous changes in political and social conditions due to the adoptionof improved means of transportation and to the establishment of the factorysystem have brought with them problems whose solution seems to beimpossible under the principles of law which were regarded as both axiomaticand permanently enduring at the end of the eighteenth century. That law was

75 Woodrow Wilson, The New Freedom[New York: New York and Garden City Doubleday, Page &Co., 1913], 32.

76 Wilson, The New Freedom, 30.

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permeated by the theories of social compact and natural right, which in theirturn were based upon the conception that society was static rather thandynamic or progressive in character.77

The Purpose of Government

The founders believed that the purpose of government was to secure mens

natural rights of life, liberty, and property. The progressives completely rejected such

a notion of rights. John Dewey mocked the idea, saying, Natural rights and natural

liberties exist only in the kingdom of mythological social zoology.78 Governments

purpose for the progressives was therefore extraordinarily different from the notionheld by the American founders. As Pestritto has written, the founders had posited

what they held to be a permanent understanding of just government, and the

progressives countered that the ends and scope of government were to be defined

anew in each historical epoch.79 In regards to the relatively static idea of

constitutional government designed for the purpose of protecting peoples natural

rights, Wilson said:

That was the idea that obtained in Jefferson's time. But we are coming now torealize that life is so complicated that we are not dealing with the oldconditions, and that the law has to step in and create new conditions underwhich we may live, the conditions which will make it tolerable for us to live.80

The government that was set up in Jeffersons time had its powers carefully

hemmed in due to the fact that the founders had just thrown off tyranny, Wilson

argued, and the government that they set up following the Revolution and the failure

of the Articles of Confederation only properly fit those circumstances. The founders

did not attempt to dictate the aims or objects of any generation but their own, he

77 Frank Johnson Goodnow, Social Reform and the Constitution, [Mcmillan Company, 1911],

http://books.google.com/books?id=zgxJAAAAIAAJ&output=text, 1.78 John Dewey, Liberalism and Social Action, [Southern Illinois University, 1991], 17.

80 Wilson, The New Freedom, Ch. 1

http://books.google.com/books?id=zgxJAAAAIAAJ&output=texthttp://books.google.com/books?id=zgxJAAAAIAAJ&output=texthttp://books.google.com/books?id=zgxJAAAAIAAJ&output=text

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said. He implored Americans of the 20th century to disregard the doctrines and

principles of their nations founding documents:we have come to a new age and a

new attitude towards questions of governmentnew definitions of constitutional

power, new conceptions of legislative object, new schemes of individual and corporate

regulation.81

The progressive movement caused a gradual transformation not only in what

the purpose of government was understood to be, but also in the function of American

institutions, such as: federalism, checks and balances, and enumerated constitutional

powers. Redefining governments purpose was only the first step in achieving actual

policy-related reforms. It took time for the progressive theory of government to alter

the structure and practice of constitutional government in America, as Hofstadter

noted; the reforms of the Progressive Era established a b