Legislating Morality After Prohibition

Last week our nation commemorated the eightieth anniversary of the repeal of Prohibition, the most commonly cited lesson of which is: You cannot legislate morality. Though this has become part of popular history of the era, it’s exactly the wrong lesson to draw from it.

Though largely a movement with progressive roots, the temperance movement cut across the ideological spectrum. Not even the proponents of Prohibition had a singular idea of the morality it was designed to enforce. It drew its support from socialists and businessmen, from New England Social Gospel advocates to Fundamentalist Gospel preachers. Many proponents, like women’s rights activists, advocated it to sincerely address real problems in the family. Many proponents, like the Ku Klux Klan, advocated it for craven political purposes and out of racist and anti-Catholic sentiment. It was enforced by small government conservatives like Calvin Coolidge and vocally opposed by one of it’s leading progressives, Governor Al Smith. Arguably the most organized anti-Prohibition network across the country was the Catholic Church and its communities of immigrants. Additionally, opponents of Prohibition advocated repeal on the grounds of morality: that prohibition was corrupting the morals of the young and, in particular, women.

Anthony Esolen has pointed out the problem was not that Prohibition enforced morality (every law properly understood enforces some form of morality), nor that there were not problems with alcohol consumption to be addressed, but rather that the means employed were too excessive for the evils sought to be remedied:

The avenue chosen was too problematic. It was an attempt to call on the national government, that lumbering giant, as Big Daddy to keep little daddy in his place. It was a national “answer” for a local problem, even a domestic problem, as if one were to ask the United Nations to impose a curfew on one’s teenager. That was a first in American history. Indeed, the people who campaigned for Prohibition knew it was so, else they would not have taken the extraordinary trouble to pass a constitutional amendment . . . And it was a bad law for the most obvious reason of all. It appealed to public welfare to outlaw something that was, in itself, not evil.

Distinguishing the prohibition of alcohol from other societal evils, like pornography, Esolen points out:

Prohibition wasn’t wrong because it simply prohibited. It was wrong because of what it prohibited (something inherently innocent, domestic, and local), who was doing the prohibiting (the national government), and how (via a new constitutional principle, and a national police force).

It is not uncommon to see arguments advanced on a variety of issues today which appeal to this supposed lesson of Prohibition: that you cannot legislate morality. As American society moves in a direction which is ever more libertarian on a variety fronts, from marriage, to gambling, to drug use, we can expect to see more efforts to both enact and remove laws accordingly. We can, in turn, expect that these laws will both reflect and shape that society. It is critical in this context to remember the proper lesson of Prohibition: the paramount importance of prudence in governing. The virtue to discern and choose what is good but also to understand the best methods to achieve that good. St. Thomas Aquinas described prudence as “right reason in action.” Society will legislate morality, that much is unavoidable. Christians, in our roles as citizens and legislators, are called to exercise “our right reason” in the public square. But in exercising our reason we need to look where we are going and think about how we are going to get there. While almost every politician running for any office, no matter how lowly, is quick to cloak themselves in the virtue of courage it is hard to imagine a political ad campaign in which a candidate described him or herself as preferable to their opponent due to prudence. Yet prudence guides our actions even when we have judged correctly and mustered the courage to act. There are times when even our political leaders who reason rightly about issues lack courage, but equally there are times when they lack prudence. They fail to understand the best methods for advancing the good they are pursuing. And in failing to exercise prudence they damage the cause they ostensibly serve.

The Eighteenth Amendment and its subsequent enforcement legislation, the Volstead Act, were serious acts of imprudence. Temperance advocates sought to forbid a natural good by wildly disproportionate means, disrupting the social fabric and traditions of communities and unleashing a torrent of unintended consequences. The celebration of the Twenty-First Amendment ought to be a call to remember the virtue of prudence in governing. Drink and celebrate responsibly and, come to think of it, for our legislators, govern responsibly too.