The Twenty-First Amendment and the End of Prohibition, Part 2: The Wickersham Commission and the Repeal Movement

The Twenty-First Amendment and the End of Prohibition, Part 2: The Wickersham Commission and the Repeal Movement

Legal Sidebari

The Twenty-First Amendment and the End of
Prohibition, Part 2: The Wickersham
Commission and the Repeal Movement
October 31, 2023
This Legal Sidebar is the second in a six-part series that discusses the Twenty-First Amendment to the
Constitution. The Twenty-First Amendment repealed the Eighteenth Amendment, which prohibited the
manufacture, sale, or transportation of “intoxicating liquors” for “beverage purposes” within the United
States. As interpreted by the Supreme Court, Section 2 of the Twenty-First Amendment recognizes that
states may regulate or prohibit alcoholic beverages within their jurisdictions for legitimate,
nonprotectionist purposes, such as health or safety.
Since the Twenty-First Amendment’s ratification in 1933, the Supreme Court has grappled with difficult
questions about how the Constitution allocates the power to regulate alcoholic beverages between the
federal and state governments. Such questions implicate the concept of federalism, which refers to the
division and sharing of power between the national and state governments. Accordingly, understanding
how the Twenty-First Amendment interplays with other constitutional provisions may assist Congress in
its legislative activities. Additional information on this topic is available at the Constitution Annotated:
Analysis and Interpretation of the U.S. Constitution.
Wickersham Commission’s Inquiry into the Problems with the
Enforcement of the Eighteenth Amendment and Prohibition
From their inception, the Eighteenth Amendment and its implementing law, the National Prohibition Act,
popularly known as the Volstead Act, were controversial in part because they empowered the federal
government to police activities that implicated individual social habits and morality—a role traditionally
filled by state and local governments. By the end of the “dry decade” of the 1920s, the Eighteenth
Amendment had failed to eliminate the illegal manufacture and sale of alcoholic beverages within the
United States. Shortly after entering office in 1929, President Herbert Hoover established an investigatory
committee to identify obstacles to Prohibition’s enforcement. Two years later, the “Wickersham
Commission”—named for its chair, former Attorney General George W. Wickersham—released a report
identifying a number of these obstacles.
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Observing that “[s]ettled habits and social customs do not yield readily to legislative fiats,” the
Wickersham Report detailed the American public’s widespread defiance of Prohibition. Americans
patronized clandestine retail liquor establishments, such as “speakeasies”; exploited loopholes in the
Volstead Act to obtain medicinal liquor and sacramental wine for recreational purposes; and brewed
alcoholic beverages at home, often without significant legal consequences.
The Wickersham Report also referred to significant problems with the federal and state governments’
efforts to enforce Prohibition. Federal agencies responsible for investigating Volstead Act violations
lacked the funds necessary for a serious enforcement effort. Many federal Prohibition agents received low
salaries and had little formal training. This contributed to widespread corruption, as some agents ignored
violations of the law in exchange for bribes from criminal organizations.
Although the Eighteenth Amendment granted the states “concurrent power” to enforce Prohibition, fewer
than half of the states funded their own enforcement efforts. Instead, many states sought to preserve their
limited fiscal resources for other priorities by relying on the federal government to enforce laws that were
unpopular with a large number of state residents. During the 1920s, public support for Prohibition
enforcement declined further as federal and state authorities employed harsh enforcement techniques,
such as conducting violent police raids and wiretapping suspects’ telephone lines, when investigating
some alleged Volstead Act violations.
Public defiance of Prohibition and ineffective law enforcement fostered an illicit liquor traffic known as
“bootlegging.” Bootleggers smuggled alcoholic beverages into the United States through its expansive
international borders, shore lines, and inland waterways. Bootleggers also produced and distributed
alcoholic beverages within the United States. Organized criminal gangs, attracted by the illegal liquor
trade’s profitability, fought violent turf battles in Chicago, Detroit, and other major American cities.
Although the Wickersham Commission identified significant problems with Prohibition, it opposed the
Eighteenth Amendment’s repeal. However, a few individual commissioners wrote separately to advocate
for the Eighteenth Amendment’s revision or elimination.
The Repeal Movement and the 1932 Presidential Elections
The Wickersham Commission’s 1931 report, which identified numerous problems with Prohibition,
helped to encourage public support for the Eighteenth Amendment’s repeal. Various social reform groups
advocated for an end to Prohibition, including the Association Against the Prohibition Amendment and
the Women’s Organization for National Prohibition Reform. Pro-repeal advocates maintained that
Prohibition intruded upon individual liberty, interfered with state sovereignty, and encouraged the growth
of crime, among other objections.
Several influential business leaders also supported the Eighteenth Amendment’s repeal in the late 1920s
and early 1930s. These included newspaper publisher William Randolph Hearst, who viewed Prohibition
as a failure, and philanthropist John D. Rockefeller Jr. Rockefeller revealed his opposition to Prohibition
in a June 1932 letter to educator and philosopher Nicholas Murray Butler. Rockefeller wrote that
Prohibition’s benefits were “more than outweighed by the evils that have developed and flourished since
its adoption, evils which, unless promptly checked, are likely to lead to conditions unspeakably worse
than those which prevailed before.”
Despite growing public opposition to the Eighteenth Amendment, incumbent President Herbert Hoover
and the Republican Party adopted an equivocal approach toward Prohibition during the 1932 presidential
campaign. The Republican Party platform attempted to appease both “dry” and “wet” supporters by
opposing the Eighteenth Amendment’s repeal while supporting Congress’s proposal of a new amendment
to the Constitution that would allow each state to decide whether to prohibit liquor or saloons within its
jurisdiction.

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By contrast, President Hoover’s challenger, Democratic Party candidate Franklin D. Roosevelt, openly
supported the Eighteenth Amendment’s repeal. Speaking at a campaign event in August 1932, Roosevelt
referred to Prohibition as a “complete and tragic failure” in many parts of the country that encouraged
corruption and crime. He argued that vesting the state governments with primary regulatory authority
over alcoholic beverages would better promote temperance goals if federal law protected dry states from
illegal liquor imports. Campaigning during the depths of the Great Depression, Roosevelt contended that
repealing the Eighteenth Amendment would also provide a much-needed source of tax revenue to the
federal government. On November 8, 1932, Roosevelt won a landslide victory in the presidential election,
signaling a potential end to Prohibition.
Click here to continue to Part 3.

Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)

Disclaimer
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