Amendment XVIII Revisited
December 2, 2010
Though the 18th Amendment to the Constitution was later repealed by the 21st
Amendment, there is something to learn from this Constitutional excursion that
transcends the failed attempt to ban alcoholic beverages. Unfortunately, most
discussion of this amendment centers on the false "you can't legislate morality"
debate and ignores a more subtle and important lesson to be learned. Americans
and politicians in 1917 understood something Americans in later years did not,
an ignorance that politicians today gleefully exploit.
First the amendment itself. The meat is Section 1 which reads "After one year
from the ratification of this article the manufacture, sale, or transportation
of intoxicating liquors within, the importation thereof into, or the exportation
thereof from the United States and all territory subject to the jurisdiction
thereof for beverage purposes is hereby prohibited."
Americans in 1917 knew their Constitution and fully understood what was meant by
enumerated powers. Whether the ban on alcoholic beverages had popular support
was not the issue and even the politicians understood that. Whether or not the
federal (or State) government had the Constitutional authority was the issue.
The obvious conclusion was it did not have the authority. There is no enumerated
power given to the federal government to ban or regulate any product or service,
hence one was needed and that could only be done through the amendment process.
Article I, Section 8, the so-called enumerated powers, is very specific about
what the federal government can do and is the ultimate expression of what the
Founders meant by limited government. The preamble of the Constitution is not a
license to go beyond those limited powers but only an expression of intent. When
Americans rightly or wrongly jumped on the prohibition bandwagon between 1917
and 1919, they understood that the power had to be granted. Not even the
commerce clause could be stretched that far.
There have been many transgressions by the federal government that have enjoyed
popular support. The FDA, Social Security, Medicare and the ADA just happen to
be a few that have absolutely no Constitutional authority despite their
popularity. Yet most Americans who lived at the time those came into being
simply accepted what the federal government did as if it had the authority in
those particular cases. Those who objected were trampled by court decisions
finding legal "penumbras" and other such judicial interpretive fakery. The
favorite court instrument appears to be the "commerce clause" which has been
stretched so far beyond its original intent that it should have been named the
Of course we have those justices that advocate the "living Constitution" which
fully implies they have the power to animate that document any way they see fit.
We also have Executive Orders, more appropriately called presidential diktats
that go far beyond what is required to enforce the laws of the land. Obama's
many czars and their assumed powers emanate from unconstitutional Executive
Obamacare may be the slap in the face many Americans needed to alert them to
what Americans knew in 1917. You don't do that without Constitutional authority,
and even the politicians of the time understood that. Nonetheless, politicians
today have a totally different attitude. They may take an oath to uphold and
defend the Constitution, but they clearly place the burden of the Constitutional
test on the citizen. So why not pass legislation without reading it? So what if
it is unconstitutional? That's the citizens' problem and they have to prove it
in court. It's an attitude shared by most Democrats and many Republicans.
To paraphrase Madison, I can't lay my finger on that specific power in the
Constitution that allows the federal government to ban the manufacture and use
of tungsten filament light bulbs, or CAFE standards, or compulsory retirement
plans, or funding a media outlet, or the Endangered Species Act, or any other
number of popular (or unpopular) laws that it does not have the power to make.
And, for as much as I am against drug use, there is no Constitutional authority
for the federal government to pass any law concerning drugs. That, and some of
the other items I have mentioned are powers reserved to the States, provided
their constitutions permit those powers, or to the people who will exercise
those powers by the decisions they make.
Americans in 2010 would do well to learn what Americans knew in 1917, even if we
laugh at the decision they made at the time. If Americans today want their
government to "take care of them", a few Constitutional amendments would be in