Home / World / Episode 14 of the Constitutional podcast: ‘Prohibition’

Episode 14 of the Constitutional podcast: ‘Prohibition’


(Michelle Thompson for The Washington Post)

In January 1920, Prohibition went into effect across the United States. The 18th Amendment had been passed the year before–banning the manufacture, sale and transport of alcohol–at the urging of citizens and lawmakers who thought this ban would improve the general health and welfare of the nation by eliminating one of its vices.

But a curious thing happened. Shortly after Prohibition began, vice in America began to climb. Not only did drinking rise over that first decade, but organized crime went up exponentially as well. Even on Capitol Hill, congressmen were buying liquor under the table from their very own bootlegger, George Cassiday, who went by the nickname “The Man in the Green Hat.”

This episode of The Washington Post’s “Constitutional” podcast examines the origins of Prohibition and, moreover, how and why it ultimately came to end–marking the only time in U.S. history that the government has repealed an amendment.

Daniel Okrent, author of “Last Call: The Rise and Fall of Prohibition,” is the featured guest on this episode. And podcaster Roman Mars, host of “What Trump Can Teach Us About Con Law,” makes an appearance portraying the Man in the Green Hat.

Listen to the episode here.

Check out the “Constitutional” Web page and subscribe to get new episodes free on Apple PodcastsStitcher or wherever you listen to podcasts. For updates about the series, you can also follow podcast host Lillian Cunningham on Twitter: @lily_cunningham

Transcript of “Episode 14: Prohibition”

LILLIAN CUNNINGHAM: George L. Cassiday knew every nook and cranny of Capitol Hill–the desks and drawers and bookshelves in senators’ offices, the underground card room, the doorways guarded by the Capitol police. He was clean shaven. Baby faced. In his late 20s, early 30s. He was smartly dressed: tie, vest, fedora, shined shoes that clicked on the marble floors. He had keys to congressmen’s offices, and his own stowaway spot in the Cannon House Office Building.

He was a bootlegger who supplied Congress with illegal liquor during Prohibition.

In 1930, facing felony charges and with little to lose, Cassiday wrote a series of exposes for The Washington Post, sharing all the scandalous details from his decade of congressional bootlegging.

Over six installments, he revealed that many of the very same lawmakers who had written into the Constitution an amendment banning alcohol production and distribution were ducking the law themselves.

Cassiday’s tale highlighted the hypocrisy and failure of Prohibition, and it helped stoke a nationwide backlash against the amendment. The title of his expose in The Post was based on his nickname–the series was called “The Man in the Green Hat,” and these are the opening lines:

ROMAN MARS [reading from “The Man in the Green Hat”]: October 24, 1930, The Washington Post:

 For nearly ten years I have been supplying liquor at the order of United States senators and representatives at their offices at Washington. On Capitol Hill I am known as “The Man in the Green Hat.”

I started in 1920 and continued during the terms of Presidents Harding and Coolidge and well into the Hoover administration. That is a good deal longer than the average representative holds his seat. Many of my best customers have been reelected and are still active in the House and Senate. Some of them are candidates today for reelection in November.

It may be a surprise and a shock to many good people to know that liquor has been ordered, delivered, and consumed right under the shadow of the Capitol dome even since Prohibition went into effect.

CUNNINGHAM: And so his story begins.

That’s podcaster Roman Mars, playing the part of the Man in the Green Hat. And I’m Lillian Cunningham with The Washington Post. This is Constitutional.

[Theme music]

CUNNINGHAM: Early in the 20th century, America made several amendments to the Constitution. In 1913, there were the amendments for the income tax and for the direct election of senators. In 1919, there was the Prohibition of alcohol. And in 1920, women got the right to vote. All of these constitutional changes were supposed to make the country stronger.

But the amendment prohibiting alcohol–the 18th Amendment–is the only amendment in American history to have been repealed, overturned. Thirteen years after Prohibition went into effect, some of the same voices who had helped to usher it into the Constitution helped to usher it out.

So what happened? Why had this particular constitutional experiment in “promoting the general welfare” gone so incredibly wrong?

In many places across the United States in the 1920s, rather than increasing the health and morality of the nation, Prohibition had the opposite effect. In big cities like New York, New Orleans, Baltimore, the allure of the speakeasy culture, and illicit alcohol, was so strong and the drinks so easy to come by that it actually drove up alcohol consumption.

DANIEL OKRENT: The editor of The Detroit Free Press, Malcolm Bengay, wrote that it was extremely difficult to get a drink in Detroit during Prohibition. You had to walk in the open door of a bar and shout really loudly so that the bartender could hear you over the crowd.

CUNNINGHAM: This is Daniel Okrent, author of “Last Call: The Rise and Fall of Prohibition,” which became the basis for the Ken Burn’s documentary a few years ago on the subject.

In more rural areas, and in the middle of the country, alcohol was in fact harder to come by–but that resulted in its own set of public health problems.

OKRENT: There was a phenomenon called “jake leg.” There was a time in Wichita, Kansas, when you could sit in downtown and one or two out of every 30 people to walk by had a terrible limp, and that limp was from drinking bad liquor that was distributed in their area.

CUNNINGHAM: Across America in the 1920s, the unexpected negative side effects of Prohibition were showing themselves, including that previously law-abiding citizens had lost their respect for the law–men like George Remus.

OKRENT: He was a man from Chicago who happened to have both a pharmacy degree and a law degree, and he saw real opportunities making money through Prohibition. So the first thing he did is he moved himself to Cincinnati, which was within 150 miles of something like 80 percent of the distilling capacity in the U.S., and he began to buy up distilleries as they were folding during Prohibition. One of them was the Jack Daniels distillery.

Medicinal alcohol was legal. Every 10 days you could get a prescription from your doctor, go to a pharmacy and get a pint of whiskey. So what George Remus saw was the opportunity to control both ends of the market. He would legally manufacture whiskey in his Jack Daniels distillery in St. Louis under a license to distribute it to drugstores that he owned. And then on the way from St. Louis to wherever the truck was going, it would be hijacked by his own men who would then move that so-called medicinal whiskey into the wider speakeasy trade.

CUNNINGHAM: That booze filtered out to underground bars–and not-so-underground bars–across the country. Everywhere you turned, people in big ways and small ways were committing crimes. As one woman who had supported Prohibition, and then turned against it, said: “Children are growing up with a total lack of respect for the Constitution and for the law.”

One of those people who turned into a lawbreaker after Prohibition started was the Man in the Green Hat.

MARS [reading from “The Man in the Green Hat”]: October 24, 1930, The Washington Post:

I got into the business on Capitol Hill by accident. Before the war, I worked steadily for the Union News Company, the Adams Express Company and as a brakeman and flagman for the Pennsylvania Railroad. My mother was a member of the Woman’s Christian Temperance Union and as a boy I attended Methodist Sunday school. There were twelve children in the family. My father was a steel peddler. My father did not take a drink for 32 years before his death and having had this example of sobriety held up to me as a youngster I have never been a regular drinker.

My experiences were no harder than those of many other ex-servicemen in trying to make the adjustment to civilian life. I tried but failed to pass the physical examination for my old railroad job. I got married, but conditions were not so good right after the war, and I could not find steady work. A friend of mine told me that liquor was bringing better prices on Capitol Hill than anywhere else in Washington and that a living could be made supplying the demand. I thought he was joking. A few days later, in the summer of 1920, I met this friend in the lobby of the old Hotel Varnum in Washington. He introduced me to two representatives from a southern state. They asked if I could supply them. After making arrangements to get the stuff, I made my first deliveries on Capitol Hill to these two members. These were the first members of Congress I had ever met. I did not know it at that time, but learned later that both of them had voted for the 18th Amendment and the Volstead Act. That was my start in the business on Capitol Hill.

CUNNINGHAM: The 18th Amendment had gone into effect at the start of 1920, and by that summer the Man in the Green Hat had set up a thriving bootlegging business among politicians on Capitol Hill. If so many congressmen were secretly drinkers themselves, then how had we ended up with an amendment banning the sale of booze in the first place? What had led America to that point?

OKRENT: I can’t imagine that the original framers of the Constitution ever would have conceived of the possibility of a Prohibition amendment. When they were all locked up in Philadelphia writing the Constitution, at the end of each day’s long arguing, they’d go out and have drinks together.

CUNNINGHAM: But about 50 years after the Constitutional Convention, pushback against the drinking culture in America began to gather force.

OKRENT: Prohibition came about at the end of what was really a nearly 80-year campaign that begins in the 1840s. And it begins because liquor was really a problem in the U.S. In 1830, which was the absolute nadir or depending on your perspective maybe the apex of drinking in America, the average American over 15-years old was drinking two-and-a-half fifths of liquor a week. This is particularly true in the farm country and on the frontiers, where life was tough and the local saloon, the tavern, was the place that men particularly would go to relieve themselves of their problems and to drink themselves under the table.

CUNNINGHAM: This created a growing set of social issues: domestic abuse, poor health, financial ruin, duels in the streets.

OKRENT: And it was a problem of such enormous proportions that spontaneously a movement arose to do something about it.

CUNNINGHAM: Initially it was preachers and other religious men who most publicly supported temperance. But by the 1850s, the individual who emerged as one of the leading voices of the movement was a woman–and a woman we’re all familiar with–Susan B. Anthony.

OKRENT: Now we know Susan B. Anthony more for her role in bringing about women’s suffrage through the 19th Amendment than for her role in the temperance movement, but she rose to speak at a conference in the early 1850s in upstate New York of an organization called the Sons of Temperance. And she wanted to address the group and she was told by the chairman of the event that the sisters were there to listen and the brothers, the sons of temperance, would be the ones who would do all the talking.

CUNNINGHAM: And she was so angered by this that she and her friend Elizabeth Cady Stanton started the Women’s State Temperance Society. Their goal at that time wasn’t to ban alcohol altogether, just to push for liquor laws that would help rein in some of its negative effects.

OKRENT: Women were the victims of the drinking in America. And they organized to do something about it.

CUNNINGHAM: At one point, Anthony and her organization gathered nearly 30,000 signatures for a petition they sent to the New York legislature, requesting state regulations on alcohol. But the legislature dismissed the petition because the majority of the signatures were from women. This affront was part of what then made Anthony shift gears and focus more of her efforts on women’s right to vote. She started to think none of the causes women cared about–like temperance–would ever get anywhere unless women had a voice in politics.

OKRENT: Realizing that she had no influence, no ability to make her views known, no ability to bring about changes in the law, she and a number of other women well-known to history began the women’s suffrage movement. And the two movements progressed through the second half of the 19th century and the first two decades of the 20th century almost in tandem.

In fact, the brewers collectively fought women’s suffrage state after state after state because they knew if women got the vote they would be voting for temperance, for Prohibition, and it would not be in their interests.

CUNNINGHAM: But despite the beverage industry’s efforts, the push for Prohibition continued to mount–and not just among women.

OKRENT: Manufacturers had a lot of problems with it because Mondays were nonfunctional days in many places. The men would not show up for work. They would show up still hung over. It had real economic effects on the nation.

It’s hard from the 21st century perspective to understand how much drinking was going on in the late 19th and early 20th century–how ubiquitous it was and how socially deleterious it was.

If you read the fiction of the era, Frank Norris or Upton Sinclair– the men working in the Chicago stockyards in these awful, awful conditions, brutalized by the industrial machine, where do they go for relief? As soon as work is over, they go across the street to the saloon and they get smashed. And this was happening across the country.

CUNNINGHAM: By the turn of the 20th century, the temperance movement had gotten even stronger, with a number of prominent organizations pushing for reform. And the one that emerged as the most powerful force campaigning for a Prohibition amendment was a group called the Anti-Saloon League, which started out of Ohio.

OKRENT: The key figure who makes it happen–the political organizer, the political genius I think behind it–was an extremely unprepossessing man from Oberlin, Ohio, named Wayne B. Wheeler. He was the functional head of the Anti-Saloon League.

CUNNINGHAM: Wheeler was petite man with slicked-back hair, round little glasses, and a smirk beneath his thick mustache. He pioneered strategies that are still widely used by special-interest groups today.

OKRENT: The key to the Anti-Saloon League’s efforts, as Wheeler realized, was to stick to one issue only. It would be like today saying we don’t care what your position is on abortion. We don’t care what your position is on Russia. All we care is what you think about guns. And in fact that’s what the NRA has done, and they modeled that very clearly on the Anti-Saloon League. It was the first group to earn the name “pressure group.” It was coined to define the Anti-Saloon League.

CUNNINGHAM: The Anti-Saloon League started seeing more and more success on the state level. After one particularly strong victory in Ohio, where he surprisingly and effectively stopped a governor the league disliked from winning his reelection bid, Wheeler declared: “Never again will any political party ignore the protests of the church and the moral forces of the state.”

Wheeler was a religious man and a progressive man. He supported civil rights and he saw constitutional amendments as a way to promote the general welfare, a way to try to correct for immorality and create a better America–an America without the evils of slavery, an America without the evils of alcohol.

OKRENT: People said: Well why don’t you just pass a law? Why doesn’t Congress pass a law that the president can sign and we can get rid of drinking that way? There were a couple of reasons why the Prohibitionists didn’t want to do that, but the primary reason was that a law can be undone by the next Congress–whereas, up until that point, no one had ever repealed a constitutional amendment. Once in the Constitution, it seemed that it was going to be there forever.

CUNNINGHAM: And so Wheeler and the Anti-Saloon League set their sights on a constitutional amendment; but it didn’t yet seem within reach.

OKRENT: The mass of people who liked to have a drink just never believed it was possible that somebody would take this away. I mean this was a right that had existed since the dawn of mankind, and certainly under the law in the United States. Back to pre-colonial times, people were drinking and it was part of life. You could no sooner expect there to be a constitutional amendment to get rid of alcohol than a constitutional amendment to say that the sun should rise in the West instead of the East.

CUNNINGHAM: But then something pivotal happened in 1913.

OKRENT: One of the things that was necessary to make Prohibition possible was the passage of the 16th Amendment, which authorized a federal income tax in 1913. Until then, it would have been impossible to have an effective Prohibition, because the excise tax on alcohol was the second largest source of revenue to the federal government just after the tariff. So in 1913, when there is suddenly an income tax and the government can function on other sources of income, the people who are pushing for Prohibition–for temperance and then Prohibition–they said: Aha! Now is our chance!

CUNNINGHAM: Wheeler and the Anti-Saloon League joined forces with other groups, in particular the Woman’s Christian Temperance Union. Together they mounted an all-out campaign to secure an amendment. They wanted it to ban the making of, the selling of and the transporting of alcohol anywhere in the United States. They worked on the state level first to get Prohibition laws enacted that would build momentum for it. Then they helped get politicians elected who would support it. They also lobbied on Capitol Hill to get congressmen and senators to draft the legislation.

OKRENT: It was an extraordinary campaign that really begins to be organized with the passage of the income tax amendment and five years later our Constitution has been changed. It was a momentous political accomplishment.

CUNNINGHAM: Under pressure from these interest groups, Congress passed the 18th Amendment, prohibiting alcohol across America. The states ratified the amendment in 1919 and, with that, it officially became part of the Constitution.

Congress then passed a bill called the Volstead Act, which accompanied the amendment and hammered out the details of how Prohibition would be enforced. The bill was named after Congressman Andrew Volstead, but the real architect of it was that Anti-Saloon League powerbroker, Wayne Wheeler.

Both the 18th Amendment and the Volstead Act took full effect as of January 1920–midnight, January 16, 1920.

But if the Anti-Saloon League and the Christian Woman’s Temperance Union had wanted Prohibition to create a more moral and upright society, their victory quickly backfired. And nowhere was the failure more apparent than on Capitol Hill.

Only a handful of months after Prohibition started, many congressmen quickly set up a system for skirting the very same law that they themselves had passed, by turning to the Man in the Green Hat.

MARS [reading from “The Man in the Green Hat”]: October 25, 1930, The Washington Post:

One day a congressman from a Middle West State said to me: “George, did it ever occur to you it would be easier to bring supplies into the building in larger lots and distribute it from a base of operations from the inside?” It was then I began storing and cutting liquor for the use of members of Congress in the House Office Building itself.

One of my good customers gave me a key to a room in the House Office Building, where I could stow a good quantity away out of sight and draw on it as needed. This arrangement worked out well. It saved making so many separate trips into the building and I found I could fill orders much more promptly and conveniently by having my base of operations on the inside.

 The House Office Building got so it seemed like home to me. I knew every nook and corner of it. The fact that the Capitol police and the door guards were appointed by members of Congress seemed to assure me of protection in getting into the building. Once inside I was always sure of a hearty welcome in the offices which I visited in a day’s rounds.

CUNNINGHAM: Elsewhere around the country, Prohibition was starting to show itself in a number of different ways.

OKRENT: It was an extraordinary thing, once Prohibition was underway and established, how much changed and how much stayed the same. The country looked the same. And people who wanted to drink and who had connections were able to continue drinking. But for most people it became impossible to have a legal glass of beer anywhere in the country. This led to an extraordinary changes in the nature of our society–everything from the rise of organized crime to the development of faster speed boat technology, because the Coast Guard and the bootleggers were in a race to see who could build the fastest boats to get the liquor into shore.

CUNNINGHAM: It took a little while, though, for all those counter efforts and illegal workarounds to really take hold. So at first, the amendment did have its intended effect of starting to reduce alcohol consumption.

OKRENT: It became difficult for a while. In the first few years of Prohibition, the best guesses say that drinking dropped by about 40 or 50 percent. The problem is we only have guesses. When liquor is legal we know how much people are drinking, because of the tax stamps. Every keg of beer, every bottle of whiskey is taxed, and we know how much they’re consuming. But when it’s illegal and it’s not going through any tax system, we don’t know. It did go down, but then it began to rise and it rose inexorably and in the later years of Prohibition, from I’d say 1926 to 1933, anyone could drink virtually anywhere.

CUNNINGHAM: Not only had banning alcohol added to its mystique, and driven up an interest in drinking as a form of social rebellion; but the money to be made (illegally) off of alcohol was so great that it led to a major rise in organized crime.

Some people turned parts of their shops or homes into speakeasies, where there was drinking and dancing and music. Others, like the Man in the Green Hat, became bootleggers who supplied larger quantities of alcohol for people to drink on their own or resell. And then there were the really major players, like mob boss Al Capone in Chicago, who ran sprawling crime syndicates.

OKRENT: You know, crime has always been present in America. And in the pre-Prohibition era, nearly every city had organized crime but it was on a local level. They made their deals with the local police and they did what they wished. But Prohibition changed things for them because suddenly it was necessary to move large quantities of physical goods from one place to another. So Chicago, the city that we probably associate most with gangsterism during the 1920s–not near the border, not near the coast.–where are they going to get their liquor from? They got their liquor mostly from Detroit, from liquor that came through the rail tunnel from Canada to Detroit, and then was moved by the Detroit mob to Chicago.

They had to work together and they couldn’t fight each other, because that would destroy everything for both sides. In 1929 there was a meeting in Atlantic City. It was the leaders of the bootlegging and gangstering mobs from six cities, and they divided up the country. They determined that this was my territory. This is your territory. We’re setting prices on this. This is what we’ll charge you for moving liquor through my territory to the next territory. Those men sitting around the table in The Godfather from the different families–they got together because of Prohibition.

The federal government had fewer than 3,000 Prohibition agents to cover the entire nation–to cover how many tens of thousands of miles of borders, of coastline, much less the interior of the country. There was no way they could possibly do it. This was the period of the Harding, Coolidge, Hoover ‘20s, when the conservative Republican governments didn’t believe much in government and didn’t want to spend much money, so they had a small force of badly underpaid men trying to enforce the law. Well what do you do if you’re badly underpaid? You certainly become a target for bribery, and the corruption was absolutely rampant. It was contagious. The idea of an honest Prohibition agent was nearly an oxymoron. So the federal government was not doing a very good job.

CUNNINGHAM: By taking away a legal business model for liquor, the 18th Amendment had inadvertently created an immensely valuable black market. Here again we turn to the Man in the Green Hat.

MARS [reading from “The Man in the Green Hat”]: October 26, 1930, The Washington Post

 The busiest day I ever put in in the House Office Building I made 47 calls on customers. It kept me bustling from the time the offices opened at 3 o’clock in the morning until well along in the evening. On the average I was doing well when I made 20 or 25 calls in a single day.

Early in 1925, however, something happened that forced me to drop a well-established business among members of the House and start all over again in the Senate Office Building.

 In 1925, the “Green Hat” incident occurred. It was a bad break for me.

 I had been working the House Office Building for five years without being molested, although I believe there were very few even among the most straight-laced who did not know me and my business. At about that time, however, the so-called vice committee, consisting of Representatives Blanton of Texas, Upshaw of Georgia, Cooper of Ohio and Crampton of Michigan became active.

 One day J. R. Chorley, a policeman on the Capitol police force who is on the patronage of a Massachusetts representative, stopped me as I entered the building, where I had passed him hundreds of times. He told me that the lieutenant wanted to see me in the guard room. I told him all right, as soon as I had been to a member’s office. He had no evidence whatever that I was carrying liquor. I walked into the representative’s office and put the brief case down by the secretary’s desk.

 When he came back I told Chorley I was ready to go see the lieutenant. He told me to get the brief case. I said it didn’t belong to me, and walked off about my business and left him standing there. Chorley paid no attention to him or the secretary, and took the brief case down to the guard room. There he swore out a warrant.

 I was wearing a light green felt hat at the time. When the newspapermen asked Sergeant at Arms Joe Rodgers about the incident he said that “a man in a green hat” had brought the brief case. And that’s the true story of how I came to get the name which has been so widely advertised.

 After the “green hat” incident a meeting was held in the office of Speaker Longworth and a special rule was adopted barring me from the House Office Building. As a result of that, I made the shift to the Senate Office Building and operated there from 1925 to 1930.

I recall one senator who wouldn’t have the stuff left in his desk. He made it a rule to store it on the top shelf of a bookcase in his private office which was reserved for bound volumes of the Congressional Record. He never mentioned liquor to me, but occasionally he would say he could use some “new reading matter.” I would then come around when he was out and slip a couple of volumes off the shelf, put in the supplies, and put the Congressional Record back in place. This customer always referred to me as his “librarian.”

CUNNINGHAM: The sway that the Man in the Green Hat had on Capitol Hill was representative of what many other illegal liquor suppliers had in other cities around the country. The story of the construction of Rockefeller Center, in New York City, is an incredible example of just how much money and power these bootleggers were gaining by the end of the 1920s.

OKRENT: The Rockefellers were–and still are–one of the wealthiest families in the world, and they decided around that time to create a big plaza and complex of buildings in midtown Manhattan called Rockefeller Center. But to do that they had to buy up the land leases of all the brownstones and town homes on those blocks.

And if you look through the city records, you see well here’s this one they bought for $3,300, this one for $1,1150, this one for $2,400, this one for $1,600. This one for $80,000! And then $1,200, $900, $1,785. $65,000! This is extremely peculiar. What was so valuable about these particular brownstones? Well, those were speakeasies. And that’s the kind of money that was being made in Prohibition. Think of its effect on this city and the entire nation, so radically expressed in some such simple things as land values.

Later in the development of Rockefeller Center, the Rockefellers had intended to build Rockefeller Plaza, which is the small street that runs west of the skating rink, between the skating rink and 30 Rock, and build it straight up to 53rd Street, to the door of the modern art museum. It would be a beautiful sort of a promenade in the center of Manhattan; but they couldn’t do it because in the middle on 52nd Street was the 21 Club.

CUNNINGHAM: A famous speakeasy at the time. It’s still a restaurant there–

OKRENT: And the owners of the 21 Club had more political power than the Rockefeller family, and they were able to keep their saloon in place.

CUNNINGHAM: So by the time Prohibition had been underway for a decade, it was increasingly clear to a lot of people that this amendment had not, in fact, done a whole lot to promote the general welfare. It had led to more unhealthy and illegal behavior overall, rather than less. Even the Anti-Saloon League was losing power and unable to explain away the problems that had accompanied the amendment. But the question was: Now what? The country imprinted Prohibition in the Constitution of the United States, how could that possibly be undone?

Prohibition was growing more and more unpopular around the country, and certainly more and more unpopular on Capitol Hill. And the Man in the Green Hat was hearing all about it.

MARS [reading from “The Man in the Green Hat”]: October 29, 1930, The Washington Post

I have had many a good lawyer in Congress, including men who had served on the bench in their own States or who were later promoted to the federal bench, tell me that the whole Prohibition system was “unconstitutional.” Both the “wets” and the “drys,” however, as I encountered them in Congress, seemed to regard Prohibition as a fixture back in the early days when it first went into effect and I met only a few congressmen who looked for early repeal or modification of the law. Along the 70th Congress there came a marked change. I would say that today in the 71st congress more of the members are looking ahead to the end of Prohibition, in its present form, than ever before in the last 10 years.                        

I remember one congressman who used to vote for all the enforcement legislation on the floor of the House, as regularly as it came up, and who was also one of my good customers. He said to me: “George, I know my district is overwhelmingly dry. The people there believe in Prohibition. They can have my vote for all the Prohibition legislation they want as long as they want it. If the day comes when I get ready to retire from Congress it will be time enough for me to vote the way I drink.” This particular member had no wish to keep liquor away from the other fellow, but he figured it as a practical matter that if he wanted to keep his seat in Congress he would have to vote with the majority of his constituents on this question.

I would say that if the entire membership would vote today as they drink, you could get the required two-thirds majority in the House and Senate right now to submit the 18th Amendment to the States for repeal or modification. But in my opinion, these members won’t act on that question until they are sure they can get by with in in their own districts.

CUNNINGHAM: So how could Congress start the process of undoing Prohibition? Or at least undercutting it? One idea started floating around.

OKRENT: There were people who were wildly against Prohibition, such as the famous lawyer Clarence Darrow, who said: It would be impossible to ever get rid of it. Can we change instead the law that defines what constitutes an intoxicating beverage?

The law, the Volstead Act, that was passed in 1919 said that anything with more than one half of 1 percent alcohol was illegal. Well, one half of 1 percent alcohol would make sauerkraut illegal. So Darrow’s notion, and that of many other people, was: let’s at least change the law to make it possible to have beer and wine. And even that wasn’t going anywhere.

CUNNINGHAM: But a couple things happened at the end of the 1920s that prompted an effort not just to tweak the definitions in the law, but to all out repeal the 18th amendment.

The first was that Herbert Hoover became president. He was vocally in favor of Prohibition; but because so many people found it a failure by this point, Hoover’s ardent support of it had the unintended effect of catalyzing a stronger and more formalized counter movement against the amendment.

OKRENT: One person in particular who is critical to the repeal of Prohibition: Pauline Morton Sabin, who is an extremely wealthy woman. She was an heiress to the Morton Salt Foundation. Her father had been a member of the cabinet of the Roosevelt and Taft administrations. She was the founder of the Women’s National Republican Club and the first, in fact, woman member of the Republican National Committee. She had always supported Prohibition, but when Hoover said that it’s something that was worth continuing, she looked at her sons and she saw that these young men who were college age totally ignored the law and in fact had no respect in her mind for the idea of law itself. So she began an organization called the Women’s Organization for National Prohibition Reform–

CUNNINGHAM: Which became the biggest advocacy group for repealing the 18th Amendment–

OKRENT: And suddenly the same people, at least in appearance, the same people who had brought Prohibition in were the ones who let it out, namely the women of America. When the women turned against it–and women turned against it in large numbers in many cities because of the credibility of leaders like Pauline Morton Sabin–when they turned against it, it was doomed.

Then the other thing that happened that was really the death knell for Prohibition occurred in 1929, when the stock market crashed and the depression soon followed. Suddenly the federal government had shrinking sources of income. Income tax collections plummeted 33 percent in the first four years after the stock market crash. There were no capital gains tax collections at all. Nobody was making any gains–they were losing money in the stock market. The government was running on fumes. It was impossible to function at the barest level, much less do the kind of spending that governments often do during times of economic crisis to try to revive the economy.

So suddenly there was this big movement to bring back alcohol, because you could collect a tax on alcohol. The people who financed that movement were the Du Pont brothers, some of the wealthiest men in America, who really didn’t want to pay so much income tax any longer and they thought: Let’s have the guy who buys a nickel beer, let’s have him pay the tax for us.

From 1930 forward, it looked like something was going to happen.

CUNNINGHAM: Around this time was also when George Cassiday wrote his expose in The Washington Post about bootlegging. Within two more years, the tide had decisively shifted–and the 1932 election ushered in a wave of politicians to Washington who could help bring Prohibition an end.

OKRENT: So the minute that Franklin Roosevelt is inaugurated in March of 1933–and I should say that Franklin Roosevelt publicly though he was always a drinker, he loved his martinis, publicly until 1928, 1929 professed to be for Prohibition. But he switched. And the first thing he was able to do as president was to help get through a law that suddenly redefined the nature of what was an intoxicating beverage. They changed the definition so that beer was legal, and the beer began to flow like crazy.

CUNNINGHAM: But that didn’t solve the problem of how to legalize drinks that had a higher alcohol content. What they really wanted to do was to get rid of the 18th Amendment altogether, but repealing an amendment had never been done before. There was no roadmap. The Constitution provides instructions on how to create an amendment, but not how to undo one.

Congress had an idea, though: What if it just passed another amendment that negated the 18th Amendment’s language? That’s what it ultimately did. Congress passed this new amendment, the 21st Amendment, canceling the ban on alcohol in 1933 and sent that 21st Amendment to the states for ratification. All that was left was for three-quarters of the states to approve it.

OKRENT: At the time there were 48 states. So in addition to getting these huge congressional majorities, they had to get through 36 state legislatures.

CUNNINGHAM: To do that quickly, and with minimal politicking, Congress did another thing it never had before. The framers wrote into the Constitution that states could ratify an amendment one of two ways–either the state legislators could vote on it themselves, or the state legislature could call a separate convention to vote on it. For every other amendment, the state legislators had voted–sometimes slowly and with drawn-out political fights. But this time around, for the very first time, Congress specified that states had to hold conventions. As Congress hoped, this effectively sped up the process.

OKRENT: The first state to ratify was Michigan. And the one that put it over the top–and stop and think about this–the 36th state, the one that brought back liquor, was Utah. It’s probably the most anti-alcohol state in the country, but it was an indication of how doomed Prohibition was and how unpopular it had become.

CUNNINGHAM: It took about 8 months to get the necessary state sign-offs. And then on December 5th, 1933, the 21st Amendment officially became part of the Constitution, rendering the 18th Amendment obsolete.

After the repeal of Prohibition, things didn’t seem to change dramatically overnight, but they did change dramatically over time.

OKRENT: One of the great ironies of Prohibition in fact was it became harder to get a drink after Prohibition was over than during Prohibition, because once Prohibition was over, suddenly there was an entire regulatory apparatus. People who were selling liquor and beer were suddenly worried about losing their licenses. And so we get closing hours and we get age limits and we can’t be near a church, can’t be doing it on Sunday. Each state could pass its own laws, and many states passed some very tough laws some of which are still with us today.

On a larger scale, suddenly a lot of people went back to work. Suddenly you needed tens of thousands of people to operate the breweries, to drive the trucks, to manufacture the trucks, to build the refrigerators, to open the bars, to clean up the bars after the bars closed at night. It was the greatest jobs program that came about in the early years of the depression. It was a fantastic economic boost.

CUNNINGHAM: Fast forward 80-plus years, and many of the side effects of Prohibition still haven’t worn off. Because even though America is again a country where alcohol is legal, it is a different country today for having gone through that constitutional experiment.

OKRENT: There are obviously lasting effects. The National Crime Syndicate is not so much today as it was 30 or 40 years ago, but it’s something that’s still with us and that was created by Prohibition. Vodka–nobody in America drank vodka before Prohibition, but vodka was the easiest kind of liquor to make illegally. Taste didn’t matter. It was always mixed with other drinks. The mixed drink, in fact, is something that comes about because of Prohibition.

Men and women drinking in public together comes about because of Prohibition. Until then, the saloon was an all-male place and the only times that men and women drank in public together would be the wealthy drinking in hotel restaurants. But suddenly during Prohibition, the speakeasy–it’s kind of it’s illegal, let’s have fun, let’s go uptown and be sporting. And then once you have men and women in bars drinking together, well then you’ve got to have entertainment, and jazz spreads around the country. Dance bands. Cabarets. These are all things that derived directly from this bizarre 13-year experiment.

So many things changed when we came out of Prohibition that at the end we had a different nation. And then the single largest, most profound, most enduring effect of Prohibition is that it will never happen again.

Prohibition taught us a really important fundamental fact of civic life, which is that you cannot successfully legislate against human appetites.

If you step back from the Prohibition amendment, the 18th Amendment, and consider it in the context of the rest of the Constitution, both the Constitution as originally drafted and ratified and the Constitution as amended over the 230 roughly years since, there’s a very telling fact: Until the Prohibition amendment, nothing in the Constitution–except one thing–limited the rights of individuals. The Constitution limited the powers of government. It protected the individual from government.

CUNNINGHAM: The only exception, as Daniel alluded to, the lasting one, was slavery, the 13th Amendment. It is so far the only constitutional amendment aside from Prohibition that explicitly banned the ability to do something–though even that one was designed to secure every individual’s personal freedom. So in a way, actually every amendment other than the 18th has been about protecting or empowering an individual’s rights rather than restricting them.

MARS [reading from “The Man in the Green Hat”]: October 29, 1930, The Washington Post

I can see plainly now that if I had gone into a different business and worked as hard as I have on Capitol Hill during the last ten years, I would be a whole lot better off today. So I intend to make a fresh start at some work that is more useful to society and more satisfying to myself.

Many good people may wonder how a man who had volunteered in the World War and served with the A.E.F. in France could come home and operate the kind of a business I handled on Capitol Hill. I am willing to leave that question to the great majority of folks who read my story. This, at least, is plain to everyone, that I never went into the House or Senate Office buildings without finding a welcome there from some member of Congress or his staff who had given me an order to deliver what I brought in. Every member of Congress and every secretary or clerk of a committee is under an oath to uphold and protect the Constitution. He has to take that oath before he gets on the government payroll.

Considering that I took the risk and did the leg work from 1920 to 1930, I am more than willing to let the general public decide how I stack up with the senator or representative who ordered the stuff and consumed it on the premises or transported it to his home.

CUNNINGHAM: Was he in the wrong for supplying liquor? Was Congress in the wrong for legislating against it then buying it on the black market? Were they all in the wrong? Were they all absolved? This was the question in the very last lines of the expose that George Cassiday, the Man in the Green Hat, left to his readers to decide for themselves.

[END]

*Note: Excerpts from “The Man in the Green Hat” have been abridged from the full text.*

https://www.washingtonpost.com/news/on-leadership/wp/2018/01/01/episode-14-of-the-constitutional-podcast-prohibition/

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