William & Mary Law Review Volume 48 (2006-2007) Issue 1 Article 2 October 2006 Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era Robert Post Follow this and additional works at: https://scholarship.law.wm.edu/wmlr Part of the Constitutional Law Commons Repository Citation Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1 (2006), https://scholarship.law.wm.edu/wmlr/vol48/iss1/2 Copyright c 2006 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository. https://scholarship.law.wm.edu/wmlr William and Mary Law Review VOLUME 48 No.1, 2006 FEDERALISM, POSITIVE LAW, AND THE EMERGENCE OF THE AMERICAN ADMINISTRATIVE STATE: PROHIBITION IN THE TAFT COURT ERAt ROBERT POST* ABSTRACT This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition,and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individualresponsibility and self-control. During the 1920s the Supreme Court was a strictly "bone-dry" institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its t This Article makes extensive use of primary source material, including the papers of members of the Taft Court. All unpublished sources cited herein are on file with the author. * I am grateful for the incisive comments of Bruce Ackerman, Akhil Amar, Nancy Cott, Steven Duke, George Fisher, William Fletcher, Charles Fried, Barry Friedman, Robert Gordon, Roderick Hills, Morton Horwitz, John Langbein, Daniel Meltzer, Bill Nelson, Edward Purcell, Ceceile Kay Richter, Reva Siegel, Kate Stith, and Bill Stuntz, as well as for the unfailing research of Deborah Dinner and Robert Wiygul. The recent retirement of Gene Coakley is an irreparable loss for all of us who have relied upon his inexhaustible assistance. WILLIAM AND MARY LAW REVIEW [Vol. 48:1 losing effort to prevent the manufacture and sale of liquor throughoutthe continental United States. This is surprising,because the Taft Court was in other respects dominated by conservative Justices, who were temperamentally opposed to the expansion of the national administrativestate, particularlyin contexts in which the national government sought to displace local police power. Prohibitionrepresented the greatest expansion of federal regulatory authority since Reconstruction.It caused a major crisis in the theory and practice of American federalism, as the nationalgovernment, which lacked the courts or police necessary for implementing the Eighteenth Amendment, sought to conscript state judicial and law enforcement resources. Close inspection reveals that the Taft Court's support for prohibition came from an unlikely alliance between two liberal Justices-Holmes and Brandeis--and three conservative Justices- Taft, Van Devanter, and Sanford. Three conservative Justices- McReynolds, Sutherland,and Butler-remainedadamantly opposed to prohibition. Holmes's and Brandeis'ssupport ofprohibition likely reflects pre- New Deal liberalism's conviction that courts ought to defer to democratic lawmaking. This conviction was sorely tested by the flagrant and persistent defiance of prohibition, as well as by the repressive criminal and administrative techniques used to secure prohibition'senforcement. Not only didprogressives grow suspicious of federal regulatoryefforts to enforce sumptuary legislation,but they began to question the legitimacy ofpositive law that lacked resonance with the customs and mores of the population. These trends in American liberalism are visible in Brandeis's famous dissent in Olmstead. They would vanish with the advent of the New Deal and not reappearuntil the 1960s, in cases like Griswold v. Connecticut, at a time when the American administrative state had become as effectively entrenched as it had been duringprohibition in the 1920s. The opposition to prohibition of McReynolds, Sutherland, and Butler represents the traditionalpre-New Dealjudicial conservative position that positive law, particularlypositive nationallaw, was to be judicially disciplined whenever it departed from customary social values. The vigoroussupport ofprohibitionby otherwise conservative Justices like Taft, Van Devanter, and Sanford, by contrast, 20061 PROHIBITION IN THE TAFT COURT ERA represents a new development in American judicial conservatism. These Justices fused a conservative belief in social control with-an embrace of legal positivism. This fusion disappearedfrom judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicialconservatism finally came to terms with the entrenchment of the American administrativestate. The brief constitutionalizationof prohibition, in other words, forced Justices on both the right and the left to stop debatingwhether there should be anAmerican administrativestate, and requiredthem instead to reconstruct their judicial philosophy on the assumption that the administrativestate was an unalterablereality. It provoked a brief efflorescence of judicialperspectives that would not come into full flower until late in the twentieth century. Prohibitionalso forced a rethinking of the appropriatelimits of nationalpower, as well as fundamental developments in the meaning of Fourth Amendment limitations on law enforcement. WILLIAM AND MARY LAW REVIEW [Vol. 48:1 INTRODUCTION To recover the significance of prohibition in the United States is to engage in what Michel Foucault would call archaeology.' The normal history of the American administrative state simply omits the era of prohibition. The hiatus is especially striking because the Eighteenth Amendment's prohibition on the sale and manufacture of liquor prompted the greatest expansion of federal administrative responsibility since the days of Reconstruction. Yet the ordinary narrative of American institutional development leaps directly from prewar progressivism to FDR's New Deal, skipping lightly over the 1920s. Apparently the collapse of prohibition was so traumatic that the whole episode has simply dropped from our historical conscious- ness. This is a pity, for prohibition has much to teach us about im- portant themes of American constitutional history. The Eighteenth Amendment, ratified on January 16, 1919, prohibited "the manu- facture, sale, or transportation of intoxicating liquors,"2 and the bone-dry Volstead Act,' enacted by Congress to implement the Amendment, defined liquor as intoxicating whenever it con- tained more than 0.5 percent alcohol.' Although the Eighteenth Amendment had been approved by forty-six of the forty-eight 1. See MICHEL FOUCAULT, THE ARCHAEOLOGY OF KNOWLEDGE 7, 131, 135, 138.40 (A.M. Sheridan Smith trans., Pantheon Books 1972) (1969). 2. The Amendment provides: Section 1. 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. Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation. Sec. 3. This Article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress. U.S. CONST. amend. XVIII, repealed by U.S. CONST. amend. XXI. 3. The official name for the Volstead Act was the National Prohibition Act, ch. 85, 41 Stat. 305 (1919), repealed by Liquor Law Repeal and Enforcement Act, ch. 740, 49 Stat. 872 (1935). 4. Id.; see The Nat'l Prohibition Cases, 253 U.S. 350, 387-88 (1920). 2006] PROHIBITION IN THE TAFT COURT ERA 5 states,5 and although the majority of the states had some form of local prohibition prior to ratification,6 national prohibition was 5. Although federal documents report Rhode Island as the only state not to ratify the Eighteenth Amendment, see CONG. RESEARCH SERV., THE CONSTITUTION OF THE UNITED STATES OF AMERICA: ANALYSIS AND INTERPRETATION, S. Doc. No. 108-17, at 35 n.10 (2d Sess. 2004) (Johnny H. Killian et al. eds., 2002 & Supp. 2004), available at http:/www. gpoaccess.gov/constitution/pdf2002/007.pdf, in fact Connecticut also failed to ratify. See CONN. JOURNAL OFTHE SENATE CONFERENCE REPORT, S.J. Res. 56, Spec. Sess., at 1191 (1918); AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 616 n.28 (2005). 6. State prohibition laws preexisted national prohibition. The prevalence of such laws had increased dramatically in the years before the United States entered World War I. At the turn of the century there were only five states with "state-wide laws prohibiting the manufacture and sale of intoxicating beverages," but by April 1917 that number had increased to twenty-six. JAMES H. TIMBERLAKE, PROHIBITION AND THE PROGRESSIVE MOVEMENT 1900- 1920, at 149-66 (1966). Of these, only thirteen-all in the southern or western regions of the country--"'had sought