William & Mary Law Review


Robert Post


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 individual responsibility 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 losing effort to prevent the manufacture and sale of liquor throughout the 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 administrative state, particularly in contexts in which the national government sought to displace local police power. Prohibition represented the greatest expansion of federal regulatory authority since Reconstruction. It caused a major crisis in the theory and practice of American federalism, as the national government, 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-remained adamantly opposed to prohibition.

Holmes's and Brandeis's support of prohibition 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's enforcement. Not only did progressives grow suspicious of federal regulatory efforts to enforce sumptuary legislation, but they began to question the legitimacy of positive 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 reappear until 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 during prohibition in the 1920s.

The opposition to prohibition of McReynolds, Sutherland, and Butler represents the traditional pre-New Deal judicial conservative position that positive law, particularly positive national law, was to be judicially disciplined whenever it departed from customary social values. The vigorous support of prohibition by otherwise conservative Justices like Taft, Van Devanter, and Sanford, by contrast, 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 disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state.

The brief constitutionalization of prohibition, in other words, forced Justices on both the right and the left to stop debating whether there should be an American administrative state, and required them instead to reconstruct their judicial philosophy on the assumption that the administrative state was an unalterable reality. It provoked a brief efflorescence of judicial perspectives that would not come into full flower until late in the twentieth century. Prohibition also forced a rethinking of the appropriate limits of national power, as well as fundamental developments in the meaning of Fourth Amendment limitations on law enforcement.

Publication Information

48 William and Mary Law Review 1-183 (2006)