Prohibition Was a Failed Experiment in Moral Governance

A century ago, Prohibition went into effect around the United States, and the evangelical Protestants who had fought for 80 years to make it a reality celebrated. With the ratification of the Eighteenth Amendment, which proscribed “the manufacture, sale, or transportation of intoxicating liquors” across the United States, they had achieved something unparalleled by any movement before or since: They had introduced a new moral decree into the Constitution. In doing so, they believed that they had enshrined Protestant virtue in American life and saved the country from decay—forever.

But the Eighteenth Amendment holds another distinction: It’s the only amendment that’s ever been repealed. The Prohibition era lasted just 13 years, and is now regarded as a cautionary tale for the regulatory state. The restriction of private behavior has outlived the alcohol ban, persisting in state and local governments and finding new life in modern conservative administrations. But the idea of using a constitutional amendment for that restriction, once held up by temperance advocates as a holy grail, has been tarnished and, mostly, left to the past.

The Eighteenth Amendment “was a failed experiment,” says Samuel Freeman, a professor of philosophy and law at the University of Pennsylvania. “They did make an amendment that had to do with a matter of private morality, and it didn’t work.”

Historically, he explains, such matters—including actions that don’t directly harm others, like consensual sexual activity and obscenity—were the province of colonial and local governments. When the union formed, states retained that authority; the Constitution established no overarching national system of criminal or civil law and laid out no moral prescriptions for citizens to follow. “The powers delegated to the proposed Constitution are few and defined,” James Madison emphasized in The Federalist Papers. “[They] will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce … The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people.” With the introduction of the Bill of Rights, the Framers moved still farther away from moralistic legislation by limiting the areas in which the federal government could restrict the actions of the people it governed.