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Repealing National Prohibition
by David Kyvig
Copyright 1979 by the University of Chicago
Chapter 9 - REPEAL!
It was as if someone were opening a bottle of champagne. At first the cork moved slowly and only under great pressure. But once it reached a certain point, the cork literally exploded out of the neck. More than a dozen years had elapsed before those seeking to overturn national prohibition gained the support of a major political party. Only eighteen months later, they reached their goal. The final stage in the complicated process, state approval of a new amendment, was completed more quickly than in any previous constitutional change in the nation's history. The rapidity of repeal surprised observers far more than the popping of champagne corks in celebration when the United States lifted its liquor ban.
Repeal's speedy progress resulted from popular enthusiasm, Democratic party support, sustained antiprohibitionist pressure, and fortunate timing. The 1932 campaign led politicians to consider the landslide Democratic victory a mandate for repeal. Congress quickly adopted a resolution, approved by the Association Against the Prohibition Amendment and its allies, proposing a new constitutional amendment to abolish the old. Since over forty legislatures were then meeting, and foresighted leaders of the Voluntary Committee of Lawyers had drafted the necessary bills to place in legislators' hands, most states could immediately create ratification machinery. By early December 1933, thirty-seven state conventions had acted, repealing a constitutional amendment for the first time ever.
Once the 1932 national party conventions ended, the various wet organizations faced the question of how to proceed. The Women's Organization for National Prohibition Reform saw no problem. It had already resolved at its spring convention to support the party and presidential candidate that stood unequivocally for repeal.' Five days after the Democrats adjourned in Chicago, eighty members of the WONPR's national executive committee from twenty-five states met on Long Island and agreed unanimously to endorse the Democratic prohibition plank. Nearly two dozen Republican members hesitated to support the Democratic nominee, but the majority insisted that a president's great influence over legislation made a candidate endorsement vital. Mrs. Henry Joy, who presided, declared that the only way to reach the organization's goal was to support candidates who favored repeal, and that, although she had been a Republican all her life, she would vote for Franklin Roosevelt. A few women refused to vote for FDR, and a handful resigned, but most stood firmly behind the organization.' Announcement of the WONPR position earned front-page newspaper coverage and put Pauline Sabin on the cover of Time magazine.' The women's prompt action further cemented the image of partisan differences which emerged from the conventions.
The men's repeal societies hesitated to follow the women's lead. Two days after the WONPR meeting, forty leaders of the Crusaders met in Cleveland. While they commended the Democratic plank, they declined to endorse either candidate.' President Fred Clark in fact complained to Pierre du Pont about the WONPR'S failure to consult other members of the United Repeal Council before proceeding.' The Republican Citizens Committee Against National Prohibition meanwhile beseeched their party's leaders to abandon the platform "straddle" and come out clearly for repeal so as to not force wet organizations and an electorate "overwhelmingly for repeal" to vote against the GOP. The committee's leaders, Raymond Pitcairn and Robert Cassaft, displayed considerable anguish at having to choose between their party and a satisfactory policy on what they considered the dominant issue of the campaign.'
The Association Against the Prohibition Amendment considered its situation in the 1932 campaign quite delicate. The Democrats had overwhelmingly adopted a thoroughly satisfactory platform declaration on repeal, while the Republican convention had equivocated. The association had forged strong ties to the Democrats and clearly needed to cooperate with that party. "This is our great opportunity, " wrote Benedict Crowell. "This is the decisive year. If President Hoover is reelected, it will be a great victory for the drys and will be so proclaimed. Our cause will be set back for years. " On the other hand, he said, "if Governor Roosevelt is elected, it will be a great wet victory and will probably force the Republican party over to our side next year."' At the same time, however, amending the Constitution required tremendous political support, and leading antiprohibitionists felt they could ill afford to alienate those Republicans, among them 40 percent of the delegates to the just-concluded convention, who favored repeal.'
The A,"A's distrust of the Democratic presidential candidate further complicated the situation. Franklin Roosevelt had vacillated on prohibition throughout his career and at the convention had backed the conservative Hull plank until the last moment. The Democratic nominee, AAPA leaders felt, had broken a promise on the choice of permanent convention chairman, .and some felt he might foresake his pledge to support the repeal plank as well.' H. L. Mencken, for instance, wondered whether Roosevelt's denunciation of the saloon during his acceptance speech to the convention was an attempt "to pull some of the teeth of the repeal plank."" Furthermore, John Raskob and Jouett Shouse, the leading wet agitators within the Democratic national committee, were relieved of their party posts with few thanks for their four-year labor. This ingratitude upset Captain Stayton. II
The association sought to resolve its dilemma by emphasizing its preference for the Democratic position while avoiding offense to wet Republicans. In late July executive committee chairman Pierre du Pont announced:
The oft-stated policy of the Association Against the Prohibition Amendment with reference to political affiliations has not changed. In general, our members expect to support candidates for office, regardless of party, who have declared themselves in favor of repeal of the Eighteenth Amendment.
The Democratic platform is clear-cut and supports the aims of the Association Against the Prohibition Amendment. Therefore, we should find in the Democratic Party those candidates who will propose and recommend repeal without qualification.
While the Republican platform does not meet our aims, it must be remembered that 40 percent of the delegates to the Republican convention voted for submission of repeal. Therefore, we should also find in the Republican Party candidates who will likewise propose and recommend repeal without qualification. "
This carefully worded statement refrained altogether from mentioning the presidential contest. Irenee du Pont explained that the executive committee felt that Congress bore responsibility for initiating repeal. The president had no power in the matter except his influence. If elected, Hoover, seeing prohibition's unpopularity, might yet back repeal. A blanket endorsement of the Democratic ticket would serve no good purpose if it produced no advantage and only estranged wet Republicans. II
Regardless of the AAPA'S cautious official position, which the United Repeal Council at Pierre du Pont's request soon adopted as its own, wet organizations displayed many signs that they nevertheless preferred the Democrats. The WONPR endorsement came first. Later in the summer, the AAPA gained nationwide attention when its executive committee replaced Henry Curran as president with Jouett Shouse.11 Few Democrats in the country were better known as critics of Herbert Hoover and his policies than the former Democratic official.
Although early in 1932 the executive committee agreed to extend Henry Curran's contract as AAPA president, due to expire a year later, some grumbling about his leadership could be heard. " Curran seldom left his New York office, which placed the burden of maintaining direct contact with members upon seventy-one-year-old Captain Stayton. "This seems a great pity, " Pierre du Pont confided to Charles Sabin, "but I do not know how the difficulty can be remedied, as the Major [Curran] does not seem to have the knack of visiting and accomplishing by that method whereas the Captain is extremely active...... Curran made too little progress, others felt, and seemed tactless; he found it difficult to get along with Fred Clark of the Crusaders and Matthew Woll of the AFL committee, as well as Stayton, Benedict Crowell, and the AAPA'S chief fund-raiser, William P. Smith. In May the executive committee began seriously discussing a change and even interviewed a possible replacement. " After the Democratic convention, John Raskob suggested the possibility of obtaining Jouett Shouse's services. The executive committee responded enthusiastically and, without Curran's knowledge, approached Shouse in late July. After a brief negotiation, Shouse accepted." Pierre du Pont broke the news to Curran on August ninth. Conditions had changed, du Pont said, likening the situation to Curran's own replacement of Captain Stayton as president four years earlier." James Wadsworth and Charles Sabin urged that Curran be kept on as vice-chairman of the board. But Curran felt bitter at what he considered ungrateful and behind-the-back treatment. He and Shouse found working together difficult. After three months, when Pierre du Pont hinted that it might be appropriate, Curran was ready to sever his connection with the AAPA altogether. 11
Curran later implied that his precipitous ouster had occurred because the du Ponts wanted a job for Shouse. I I This suggests one possible reason for the reorganization, but Curran's personal shortcomings, his Republican background, the changing character of the repeal crusade, the need to work more closely with the Democratic party, and Shouse's demonstrated talents all seem more important factors. In announcing the change on August 17, Pierre du Pont credited Curran's "constant attacks" on national prohibition with "materially hastening" the change in public attitude. However, said du Pont, now that Democrats unconditionally and Republicans with reservations recognized that a cure must be found, different work confronted the association. State organizations must be created and candidates supported to insure an unqualified return to state liquor control. Du Pont ascribed to Shouse the capacity to work with both parties, which would help bring all opponents of the Eighteenth Amendment together. Given Shouse's four years of lambasting the Republican party, this description raised a few eyebrows. But Shouse proved both an effective president and a popular one, except among drys concerned about his political ability. They sarcastically suggested that the new AAPA head drop the "h" from his last name."
In accepting the AAPA office, Shouse acknowledged and endorsed the association's long-standing principles. "The Association was founded on the theory that the police power embodied in the XVIII Amendment never belonged in the Federal Constitution and should be eliminated." They must, he said, guard against further improper attempts at federal control in any proposed substitute for national prohibition. "The American people are desirous of finding a way out of the present difficulties, not of shifting to others that might prove equally annoying." A return to state liquor control, Shouse agreed, offered the only sane solution." From the start, the new president sounded the same themes the association had always stressed.
Shouse turned the focus Of AAPA activity from mobilizing public opinion to a more specific effort to influence political leaders and insure an unqualified repeal of the Eighteenth Amendment. He moved association headquarters from New York to Washington, closed the research office, hired a newspaperman, Robert Barry, to supervise publicity, and concentrated on organizing support for repeal in each state." Most importantly, the new president reinforced impressions of partisan differences on prohibition. In a well-publicized September speech, Shouse condemned the Republicans for hedging on prohibition, proposing a new amendment which would keep the federal government involved in the liquor problem, and allowing party candidates to take whatever position they desired. In contrast, he praised the Democratic plank without reservation. Shouse said the AAPA would not hesitate to support Republican candidates willing to declare for outright repeal, but he made clear the association's general Democratic preference."
Republican leaders began to realize soon after their convention that their political problems on prohibition remained. Within days, Senator William Borah denounced the platform's prohibition plank, saying that it favored repeal rather than just a referendum opportunity and offered insufficient protection for states which wished to remain dry. The White House replied that it had discussed the need for a return to state liquor control with Borah and national chairman Simeon Fess before the convention, and that both senators had approved the proposed plank. 11 The controversy made it appear that platform writers had tried, albeit unsuccessfully, to suit the Senate's most powerful drys. Hoover's summer mail reflected uncertainty as to the president's position, and discontent on the part of wets and drys alike." In his speech formally accepting renomination, Hoover tried to clarify matters. Each state, he said, should have the right to deal with the liquor question as it wished, "subject to absolute guarantees in the Constitution of the United States to protect each state from interference and invasion by its neighbors, and that in no part of the United States shall there be a return of the saloon system with its inevitable political and social corruption and its organized interference with other states."" Hoover sought to attract repeal advocates by proposing that states be able to decide whether to allow liquor sales, and temperance crusaders by retaining federal power to protect dry states and prohibit saloons. He succeeded in pleasing no one. The president failed to convince wets that his position was as attractive as his opponent's, and he angered many drys. He believed he was demonstrating a consistent interest in finding a workable means of promoting temperance, but most observers thought he was shifting ground. Nothing Hoover subsequently said during the campaign improved his image with antiprohibitionists or helped him with drys. 2 9
Franklin Roosevelt, a sensitive observer of public opinion, made his strongest statement yet in favor of repeal during an August 28 speech in Sea Girt, New Jersey. Intemperance in a modern, mechanized society imperiled everyone, he told an audience of one hundred thousand. Rather than combating intemperance, prohibition encouraged its spread. "We have depended too largely upon the power of government action," Roosevelt continued. He reiterated the AAPA'S long-standing complaint: "The experience of nearly one hundred and fifty years under the Constitution has shown us that the proper means of regulation is through the States, with control by the Federal Government limited to that which is necessary to protect the States in the exercise of their legitimate powers." The candidate particularly indicted prohibition on economic grounds. "We threw on the table as spoils to be gambled for by the enemies of society the revenue that our government had theretofore received, and the underworld acquired unparalleled resources thereby.... The only business of the country that was not helping to support the government was in a real sense being supported by the government." Not only did this lead to disrespect for law and corruption of enforcement agencies, Roosevelt went on, "Unquestionably our tax burden would not be so heavy nor the forms that it takes so objectionable if some reasonable proportion of the unaccounted millions now paid to those whose business had been reared upon this stupendous blunder could be made available for the expense of government." No wet ever made a stronger argument for repeal to relieve the depression. Roosevelt finished by saying that Hoover and the Republicans continued to be evasive, ambiguous, and insincere, claiming to support repeal while insisting on federal power to protect dry states and prevent saloons. The Republican position, said FDR, was to "sound dry to the drys and wet to the wets." By contrast, the Democratic plank, which he accepted "one hundred per cent," spoke plainly, clearly, and honestly for repeal. "On this subject the two parties offer the voters a genuine choice this year." Roosevelt never again devoted as much of a campaign speech to prohibition, but after using such unmistakable terms to the huge crowd at Sea Girt, he scarcely needed to.
Wet organizations campaigned actively in the fall of 1932, concentrating on congressional races. Only the WONPR worked specifically for Roosevelt. The AAPA spent more on congressional contests than ever before, over $300,000 between June I and November 1, almost one quarter of what the Democratic national committee spent. While it leaned toward Democrats, the association endorsed candidates from both political parties who advocated unqualified repeal. In the California Senate race, for instance, the AAPA endorsed Republican Tallant Tubbs over Democrat William G. McAdoo. McAdoo and some others regarded this as retribution for McAdoo's contribution to FDR's nomination. The AAPA replied that because of his well-known dry record McAdoo's commitment to repeal was uncertain despite his pledge to support his party's platform. Tubbs on the other hand had belonged to the AAPA for years. While there were a few other Republican endorsements, the AAPA generally backed Democrats for House and Senate seats. "
Antiprohibition arguments in the 1932 campaign differed little from the past. In late September, the AAPA issued its major campaign document, 32 Reasons for RepeaL The forty-page pamphlet first insisted that federal power should be confined to interstate and international affairs while states retained full control of purely local matters. Putting a police regulation in the Constitution had upset this balance and destroyed such Bill of Rights protections as those against double jeopardy and unreasonable search and seizure. If communities could choose their own methods of regulating liquor, they could respond to local conditions and employ one of several more effective foreign systems. 32 Reasons went on to summarize AAPA researchdepartment conclusions about the specific social and economic costs of national prohibition: extensive corruption, widespread crime, enormous enforcement expenses, and the loss of one billion dollars in annual government revenue. The pamphlet concluded by reporting various indications of rising repeal sentiment. At the same time, the Crusaders distributed a book entitled The New Crusade containing a wide variety of arguments against prohibition but stressing the need to restore law and order as well as temperance. The VCL worked at educating lawyers attending the American Bar Association convention; Pauline Sabin generated magazine publicity; and Jouett Shouse delivered major addresses in Baltimore, Detroit, and St. Paul, emphasizing the economic relief obtainable through repeal."
Some wets felt that the other antiprohibition societies should follow the WONPR lead, support Roosevelt outright, and criticize Hoover and the Republican plank more vigorously. Pierre du Pont maintained, however, that the AAPA and the United Repeal Council must not alienate wet Republicans whose support might be needed later. Du Pont, Shouse, and Raskob all made public statements in behalf of Roosevelt before the election, in each instance specifying that they spoke only for themselves. Du Pont and Raskob, furthermore, made large contributions to Roosevelt's campaign. They clearly wished for a Democratic victory, though their doubts about Roosevelt's dedication to repeal persisted." Antiprohibitionist caution in the autumn of 1932, however, in no way diminished the by now deeply implanted impression that a vote for the Democrats was a vote to put an end to the Eighteenth Amendment.
On November 8, Franklin Roosevelt and the Democratic party scored one of the great electoral triumphs of American political history. Roosevelt polled nearly twenty-three million votes to his opponent's less than sixteen million, and carried forty-two states to Hoover's six. In the Congress, which had been evenly divided, Democrats gained a310 tolI7 House majority and a 60 to 35 Senate advantage. Four years earlier, Hoover had received S8.2 percent of the ballots; now he got just 39.6 percent. Undoubtedly the economic depression bore principal responsibility for the rejection of Hoover, but prohibition played a part as well. With both parties offering vague and cautious economic plans, prohibition appeared to be one issue in 1932 on which party positions were clearly distinguishable." Its importance in the election became evident in various ways.
The election increased wet strength in Congress even more dramatically than it shifted party power. Despite the Democratic landslide, a few repeal espousing Republicans, like James Wadsworth of New York and Everett Dirksen of Illinois, won their first election to the House of Representatives. Wadsworth, who defeated both a Democrat and an independent dry candidate, clearly profited from changing attitudes toward prohibition in his conservative, western-New York district since his defeat for the Senate six years earlier in a similar three-sided contest. The New York Times calculated that the Seventy-third Congress would have 343 wet Representatives and 61 wet Senators." Wet support in the House had previously reached a peak of 187 votes on the Beck-Linthicum resolution, and the Senate had always been drier. Of the more than one hundred Congressmen turned out in 1932, some -such as Wesley L. Jones of Washington, Reed Smoot of Utah, and James E. Watson of Indiana-were among the most influential dry Senators. Quite a few surviving incumbents had reversed earlier positions and come out for repeal during the campaign.
Eleven states held referendums on prohibition issues at the November election. The results vividly demonstrated the strength of repeal sentiment. Voters abolished state prohibition laws in Arizona, California, Colorado, Louisiana, Michigan, New Jersey, North Dakota, Oregon, and Washington. In every instance, wets won by a considerable margin, including two-to-one in Michigan and California, and over four-to-one in New Jersey. Furthermore, two out of three Wyoming voters and six out of seven Connecticut voters petitioned Congress for repeal of the Eighteenth Amendment."
Whatever part advocacy of repeal actually contributed to the Democratic landslide, politicians and other contemporary observers gave it major credit for the outcome. They thought the prohibition issue had determined many votes. This belief proved crucial to the process of abolishing the Eighteenth Amendment. The election of 1932 was widely interpreted as a voter directive for repeal. Those involved in antiprohibition agitation quickly labeled it so. Jouett Shouse, for the AAPA, declared the mandate "overwhelming."" The WONPR assessed the returns and proclaimed, "The citizens of the United States through the instrument of the ballot made it quite clear and definite on November 8th that they do not want National Prohibition."" Representative James Beck called the election "a clear mandate to Congress to end, as soon as possible, the tragic folly of Federal prohibition."" Soon signs appeared that many of Beck's colleagues in the House concurred.
Within minutes of the convening of the lame-duck session of the Seventy second Congress on December 5, 1932, House Democratic majority leader Henry T. Rainey introduced a resolution proposing a new constitutional amendment repealing the Eighteenth Amendment. Rainey and Speaker John Nance Garner, the vice-president-elect and author of the resolution, obtained a suspension of House rules to allow its immediate consideration. In the forty minutes allowed for debate, proponents repeatedly stressed that the election had registered an unmistakable mandate for immediate repeal as called for in the Democratic platform. On a roll call, the resolution won the support of 272 members, 85 more than had voted for the Beck-Linthicum resolution only nine months earlier. Clearly the election had caused dozens of representatives who had previously supported national prohibition to reverse their position. The Garner resolution fell six votes short of the two-thirds needed for House passage, but among its 144 opponents were 81 lame ducks (70 Republicans and 11 Democrats) who would soon be unable to block repeal.10
The December 5 House vote dramatically underscored the November election's effect on congressional thinking. Even before newly elected representatives could replace the old, the previously dry, expiring House had nearly mustered a two-thirds repeal plurality. James Beck believed that if Garner had not tried to force the resolution down the members' throats on the first day of the session, the wets would have picked up enough votes to win. At the AAPA board of directors annual meeting the following day, a jubilant mood prevailed. Directors sensed imminent victory, and speaker after speaker insisted that the American people would accept no less than complete, unqualified repeal of the Eighteenth Amendment."
Following the vote, Garner himself expected no further action until the meeting of the new Congress, with its overpowering wet majority. The seventy-third Congress was not scheduled to convene until December 5, 1933, though an earlier special session appeared likely. However, agitation continued for action before the old Congress expired March 3. Representatives of the AAPA and WONPR visited nearly every senator to urge prompt passage of the proper sort of repeal resolution. Over forty state legislatures were then in session and most would not meet again for a year or more. These legislatures would have to either ratify a repeal amendment themselves or establish state ratification conventions. If Congress submitted a repeal resolution by February, before the scheduled adjournment of various state legislatures, Shouse estimated that as much as two years might be saved in the repeal process. 'I
On January 9, 1933, the Senate Judiciary Committee reported out a repeal resolution drafted by Republican Senator John J. Blaine of Wisconsin. Blaine, who had won his Senate seat in 1926 with AAPA support, was about to retire after having lost a 1932 primary. His proposed new constitutional amendment followed the Republican platform in providing an end to national prohibition but obligating the federal government to protect dry states against liquor imports, and in granting Congress concurrent power with the states to regulate or prohibit the sale of intoxicants to be consumed on the premises where sold, in other words, power to forbid saloons. The Blaine resolution also called for ratification of this new amendment by state legislatures. The senator ignored both 1932 platforms as well as personal appeals from the head of the Wisconsin AAIPA and Judge William Clark, author of the original 1930 Sprague decision on convention ratification procedures, that the people be allowed to express their opinions directly by electing convention delegates. Publicly, Blaine explained that state legislatures could act quickly, while the convention method would take four years or more, impose heavy expenses on the states, and, with repeal inevitable, prove unnecessary. Privately, he added that he thought drys would have a better chance to block repeal with convention ratification."
The Association Against the Prohibition Amendment and the Women's Organization for National Prohibition Reform demonstrated in this situation that they were more concerned with ending federal involvement in liquor control once and for all than immediately abolishing national prohibition. Pauline Sabin announced that nothing short of complete repeal would be accepted by her group." One AAIPA director wrote Stayton, calling the Senate resolution "a subterfuge inspired by the Anti-Saloon League, the W. C. T. U., and the religious politicians to preserve prohibition at its worst." He continued graphically, "This counterfeit proposition of the Senate Committee shows that we have only scotched the snake, and not killed it. Let us never sleep until we have smashed its head and laid it dead on the national highway."" Jouett Shouse objected as vehemently if less colorfully to the Blaine resolution, saying it merely modified the Eighteenth Amendment and further extended federal police powers in the attempt to prevent saloons from reappearing. This was not what had been advocated in the Democratic platform and overwhelmingly endorsed at the polls, the AAPA president said. "Unless and until there is offered a clear cut resolution providing for outright repeal of the Eighteenth Amendment and returning unrestricted control over the liquor problem to the different states without an attempt at continued exercise of jurisdiction by the federal government," Shouse declared, "it were infinitely better that the Eighteenth Amendment should stand."" Raymond Pitcairn, as secretary of the United Repeal Council, wrote to Judiciary Committee chairman George Norris that his committee evidently had "no conception of the enormous resentment with which the electorate regard this so-called repeal resolution, which is a fraud [and] an outrage to enlightened public opinion conceded to have become a mandate of the people at the November elections.""
In a speech to the Kentucky WONPR and later in a national radio address, Shouse argued that the proposed amendment would continue asserting federal power and maintain the present system's evils. Authorizing federal protection of dry states was superfluous, he said, given the Constitution's commerce clause and the still-valid 1914 Webb-Kenyon act. However, if it would reassure states desiring to remain dry, he was willing to see the clause included. The section granting federal power to prohibit the saloon, however, Shouse strenuously opposed. "It would mean a continuance of huge general expenditures to maintain an army of snoopers and snipers," he charged. "It would mean a continuance of the reign of racketeering and crime, of bribery and corruption, of federal interference in the lives and habits of the people."" Shouse urged all AAPA members to impress upon their senators the need to amend the Blaine resolution . 49
Some wets agreed with Blaine that ratifying conventions posed more problems than they were worth and that state legislatures could now be depended upon to approve repeal. 'I After their experiences with 11awke v. Smith and U.S. v. Sprague and their strenuous efforts to convince both parties to endorse submission of any new amendment to convention ratification, however, AAPA leaders had no intention of abandoning this goal of constitutional referendum when individual rights were involved. Shouse assailed Blaine's plan to send a repeal amendment to state legislatures. He repeated wet fears that rural dry areas enjoyed disproportionate representation in many legislatures. In such states a few drys could delay or block the popular will; a mere 132 senators properly distributed in thirteen states could defeat ratification altogether. Recalling both parties' endorsements of convention ratification, Shouse insisted that their pledges be kept."
Until mid-February, prospects for early congressional action seemed stalemated. Two-thirds of the Republican-controlled Senate Judiciary Committee continued to support the Blaine resolution, opposed by antiprohibition organizations and the House Democratic leadership. Meanwhile, a Huey Long filibuster tied up the Senate. It appeared that the session might come to its end March 3 before any action could be taken on prohibition. Although wet organizations, fearing a lost opportunity, kept pressing for prompt action, Shouse confessed to being very discouraged at this point."
The congressional situation changed abruptly when Senator Joseph T. Robinson, the Democratic majority leader and Alfred E. Smith's staunchly dry 1928 running mate, decided to push for immediate implementation of the Democratic platform pledge. Robinson began exerting his considerable influence on behalf of submitting unqualified repeal to state ratification conventions. Shouse considered Robinson's decision the deciding factor in the congressional battle." Senator Morris Sheppard of Texas, author of the Eighteenth Amendment, frantically tried to prevent consideration of the repeal resolution. His one-man filibuster soon collapsed as repeal supporters served notice that they intended to keep the Senate in continuous session until the issue came to a vote. On February 16, senators led by Robinson easily amended the Blaine resolution 4S to IS to provide for convention ratification. They then managed to strike out the antisaloon provision by the close vote of 33 to 32. Once amended to suit antiprohibitionists and Democratic leaders, the repeal resolution read:
1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.
3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
No more congressional obstacles confronted the repeal resolution. The Senate quickly adopted it by a vote of 63 to 23. Four days later, the House of Representatives approved it 289 to 121, sending the resolution on to the states." Partisan positions had shifted noticeably since 1917, when Democrats and Republicans had supported the Eighteenth Amendment in virtually identical proportions. By 1933 a majority in each party favored repeal, but Democrats by a much larger margin than Republicans. The Twenty first Amendment won approval from 79 percent of Democrats and 67 percent of Republicans in the Senate, as well as 85 percent of Democrats and 55 percent of Republicans in the House. Of nineteen Senators present for both votes, only one, James Lewis of Illinois twice voted wet. Nine Democrats and four Republicans switched from dry to wet." After two and a half months, the congressional log-jam had suddenly broken, and the first of the two great constitutional hurdles in the amending process had been surmounted.
Passage of the repeal resolution precipitated great confusion. In the nearly 150 years since the Constitution's original ratification, Congress had never submitted an amendment to state conventions. Constitutional scholars disagreed as to whether Congress or the individual states' legislatures possessed the authority to set up these conventions. Neither existing federal nor state law contained any provisions for them. Former Attorney General A. Mitchell Palmer argued that the duty lay with Congress, while James Beck placed the responsibility on the states." The states were uncertain how to proceed. As early as January 1933, the California legislature asked Congress to enact a law covering delegate selection, scheduling, conduct of elections and conventions, and payment of expenses incurred. New Mexico, on the other hand, declared that any attempt by Congress to prescribe the rules governing conventions would be null and void in that state." When Congress failed to reach a consensus after much debate, observers anticipated a long delay %while the Supreme Court resolved the procedural issues."
At this point the Voluntary Committee of Lawyers made its major contribution to repeal. Committee and AAPA leaders had begun discussing drafting convention legislation during the 1932 party conventions in Chicago. Since November, VCL chairman Joseph H. Choate, Jr., had been exploring the question of whether Congress or the states had power to establish conventions with Palmer, Beck, and others. Choate himself agreed with Palmer that Congress possessed such authority, but a January poll of selected VCL members, distinguished members of the bar from across the country, found that 40 percent disagreed." Near the end of January the VCL executive committee decided that to avoid losing vital time in case Congress did not provide for conventions, it would be wise to pursue state action. Congress could later override the states if it chose. They acted as much from fear of the consequences of delay as from certainty of state prerogatives. Urged on by the AAPA, Choate with assistance from Columbia University law professor Noel T. Dowling hastily drafted a model bill for state legislatures to use in establishing ratification conventions. While several members reviewed the draft, supporters in each state were alerted and asked to initiate action on convention legislation since a bill would soon be forthcoming. Jouett Shouse asked state AAPA leaders to support the VCL effort. Members of both the association and the lawyers committee across the country immediately agreed to cooperate." With deadlines for filing bills fast approaching in some states, wets had convention bills introduced by title, the substance to await arrival of the VCL model. Completed only days before congressional passage of the repeal resolution, the model convention bill was quickly brought to every sitting legislature by VCL and AAYA representatives. The VCL executive committee wrote all forty-eight governors, explaining the bill's "exhaustive consideration" by legal experts, stressing its simplicity and slight expense, and recommending its use. Shouse urged legislators to modify the proposal if need be, but to take action on it at once." The provision of a detailed plan for creating ratification conventions, along with well-marshalled arguments on the right of states to proceed rather than await congressional action, reduced state legislative indecision and delay to a minimum.
The VCL had been concerned with insuring that state conventions operate as much as possible like referendums. One attorney involved in the early stages of drafting legislation, Arthur W. Machen, Jr., of Baltimore, wrote to Choate, "The only thing in which I am interested is the underlying idea of making the members of the convention the same sort of figure-heads that presidential electors have become, and of submitting the question of repeal or continuance of the Eighteenth Amendment to a state-wide popular vote."" Choate and his colleagues determined that convention delegates should be elected at large to avoid gerrymandered districts which, like rural dominated state legislatures, might favor drys. One slate of delegates pledged to repeal and one opposed would be selected on the basis of nominating petitions with the greatest number of signatures. Conventions themselves would thereby merely ratify the voters' choice. Some concern about the political reception and constitutionality of this approach led the VCL to include a third unpledged slate and to add an alternative draft, providing for delegates elected from congressional districts, as well as a clause rendering state legislation compatible if Congress chose to pass a convention act."
All but a handful of states quickly and smoothly made the necessary arrangements for conventions, generally along the lines suggested by the Voluntary Committee of Lawyers. Of forty-three states which established conventions (only Georgia, Kansas, Louisiana, Mississippi, and North Dakota failed to do so, confirming wet fears that dry state legislatures represented a possible stumbling block to repeal), eleven acted within a month, thirty-nine within four months, of Congress's action submitting the repeal resolution. The VCL had clearly allayed confusion and speeded the process. Choate remained in frequent contact with VCL representatives in the individual states as their legislatures considered the matter. He answered constitutional and procedural questions, offered encouragement, and suggested ways of dealing with particular state problems. Twelve states followed the model bill almost exactly, at least eight others used it with minor modification, several more adapted portions, and many of the rest incorporated its ideas. Twenty-five states chose their convention delegates at large, fourteen selected them by district, and four combined the methods. In the absence of congressional direction, the VCL measure provided guidelines for the states, although practically every convention had its own peculiar features .61
So that elections would serve as referendums on prohibition, nearly every state provided for separate slates of delegates pledged to favor or oppose the proposed new amendment. Eight states provided for an unpledged slate as well, but only Wyoming made no mention of delegate preferences. Wyoming arranged for delegates to be chosen at precinct and county meetings, leaving the convention free to act as a truly deliberative body. Alabama, Arkansas, and Oregon required delegates to vote in accordance with a referendum on the amendment held at the same time as the delegate election. Arizona offered the surest sign that conventions were expected to reflect the voters' choice. There, if a delegate failed to hold to the position stated on his nominating petition, he would "be guilty of a misdemeanor, his vote not considered, and his office deemed vacant. 1166
With the repeal battle shifting to the states, all of the wet organizations continued their efforts. Despite the momentum generated by the 1932 election, the lame-duck Congress's unexpectedly swift and decisive endorsement of the repeal resolution, and the rapid provision for ratification conventions by most states, antiprohibitionists expected a struggle to carry three-fourths of the states. Drys, on the other hand, seemed to feel the battle was over, since they put up only dispirited and, by their earlier standards, very modest resistance. The Voluntary Committee of Lawyers fended off dry litigation designed to overturn convention laws in seven states. Given the uncertainties regarding the new ratification process, defenders of prohibition hoped to succeed in this desperate counterattack. Joseph Choate provided calm, reassuring counsel to local VCL representatives in Alabama, Maine, Missouri, New York, Pennsylvania, Ohio, and Vermont. Ultimately none of these dry efforts proved very threatening." The Association Against the Prohibition Amendment campaigned for ratification primarily through its state divisions, playing a central role in several states in drawing up slates of prorepeal convention delegates. The association's publicity campaign, though at least equivalent to that of the drys, was not as thorough as it would have liked, for the lack of funds which had plagued it throughout the depression became more acute after the 1932 elections persuaded many that the victory was won. However, large contributions from Pierre and Irenee du Pont, Edward S. Harkness, and John Raskob, as well as many smaller donations (3,488 between $1 and $100 in 1933), enabled the AAPA to pour a quarter of a million dollars into the 1933 repeal campaign. Much of the local campaigning was carried out by the Women's Organization for National Prohibition Reform and, in some states, the Crusaders."
The Delaware WONPR, for instance, brought its full force to bear in the May 1933 election of convention delegates. A typical state division of the organization, the Delaware WONPR grew to nearly 7,300 members in a state with about a quarter million residents. In previous years the women had held public meetings throughout the state, distributed literature, obtained newspaper publicity, and lobbied for repeal with state and federal legislators. Now they helped choose a slate of seventeen repeal delegates (including two of their own members), circulated nominating petitions in every election district, canvassed, and arranged newspaper advertisements and twice-daily radio speeches. Finally, together with the local branch of the Crusaders, they drove sympathetic voters to the polls." Such efforts were rewarded. Delaware voted four to one for repeal, and even the most rural, supposedly the driest, county produced a two to one wet margin.
The AAPA continued to broadcast its arguments against national prohibition during the state campaigns. Jouett Shouse emphasized the economic advantages of repeal. The enactment of prohibition, he said, had eliminated the liquor industry-the country's largest single taxpayer and the employer of hundreds of thousands of citizens. Repeal of the Eighteenth Amendment, Shouse asserted, would easily restore a billion dollars a year in federal revenue, without taking additional money from the American people's pockets, by simply diverting into legitimate channels a gigantic underworld business. James Wadsworth, another frequent AAPA spokesman, indicted prohibition for producing crime, corruption, and violations of the constitutional rights of individuals. He renewed the association's call for a return to local self-government and urged fellow Republicans not to let Democrats receive all the credit for responding to the popular demand for repeal. "This is not a question merely of beverages, beers, wines, spirits," Wadsworth insisted. "It is a question of sound constitutional government, and political decency which goes with it."
The Roosevelt administration, taking office March 4, threw its support behind the repeal drive. On March 13, in one of his first requests to a special session of Congress, the new president asked that the Volstead Act be modified to legalize 3.2 percent beer in the interim before repeal. Roosevelt stressed the need for additional government revenue which a beer tax would bring." Congress eagerly complied, and on April 7 much of the country cheered the arrival of legal, though rather weak beer. State law permitted 3.2 beer in nineteen states as of that day, and several other states moved quickly to make provision for it as soon as possible. A shiny new beer truck bearing a huge sign, "President Roosevelt, the first real beer is yours," delivered two cases to the White House at 12:04 A.M. on the morning of the seventh while a crowd of eight hundred cheered outside the gates. H. L. Mencken and Al Smith, following ceremonial tastings, proclaimed the new beer satisfactory. Baltimore and Milwaukee, St. Louis and St. Paul, Cincinnati and San Francisco celebrated, and in New York, "Everywhere one went, in hotels, restaurants, clubs, homes, and even in some speakeasies, people were drinkine the new beer and smiling."" According to Joseph Dublin, editor of Brewery Age, brewers sold over a million barrels of 3.2 beer in the first twenty-four hours. How rapidly beer drinkers consumed that quantity is anyone's guess. The United States Brewers Association, concerned that too much drinking might hand dry propagandists some new ammunition and damage chances for ratification of repeal, attempted to slow the flow by delaying deliveries. Surprisingly, arrests for drunkenness actually dropped, perhaps an indication of police tolerance of the celebration and, as likely, a measure of the potency of the beverage being so enthusiastically consumed." Although the Eighteenth Amendment remained in force and only the Volstead Act definition of an intoxicant changed, many Americans considered the return of beer on April 7 as ending prohibition and gave Franklin Roosevelt credit for its demise.
The return of beer raised the often-expressed hope that repeal would help solve the depression. An Associated Press survey after a week of 3.2 beer sales found that the federal government had already collected over $4,000,000 from barrel taxes and license fees. States and municipalities also received substantial revenue. Legalization of beer provided quick employment for an estimated twenty thousand brewery workers and created tens of thousands of related jobs, from waiting tables to making barrels and pretzels, it was reported. Roosevelt emphasized repeal's economic value again in May when he proposed new liquor taxes to take effect upon termination of the Eighteenth Amendment. During the summer, the president, aided by Democratic national chairman James A. Farley, continued to boost repeal."
The ratification process went swiftly forward." Michigan on April 3 became the first state to elect convention delegates. Voters favored the repeal slate three to one. A week later the Michigan convention met in the chamber of the House of Representatives in Lansing and by a vote of ninety-nine to one ratified the repeal amendment. In rapid order, Wisconsin, Rhode Island, New Jersey, Wyoming, New York, Delaware, and Illinois delivered even stronger endorsements of repeal, ranging from 78 to 89 percent voter approval, and unanimous convention decisions, except in New Jersey where 2 dry delegates held out against 202 wet ones.
On June 6 Indiana registered the first sizable dry vote, 312,120 out of 869,182 ballots cast and 83 out of 329 delegate seats, but nevertheless a solid 64 percent wet popular majority. By the end of June, sixteen states had expressed a preference for repeal, and none for prohibition. Three states that had scheduled their elections for mid-July were thought to be dry strongholds, so when Alabama and Arkansas each voted 59 percent in favor of repeal, and the following day Tennessee eked out a 51 percent repeal majority, Jouett Shouse exultantly declared the battle won and predicted ratification's completion within the year. Before October drew to a close, fourteen more states fell in line, and only once, in Idaho, did the wet majority slip below 60 percent. Thirty-three states had by then held ratification conventions or arranged to do so during November.
On November 7, 1933, elections in six more states assured that repeal would be ratified by more than the necessary thirty-six states within the year. Maine, Ohio, Pennsylvania, and Utah chose repeal by majorities ranging from 60 percent in Utah to 76 percent in Pennsylvania. Strangely, the only two states to vote against repeal held their elections on this same day. South Carolina rejected repeal by 52 percent, while in the largest dry vote all year, 71 percent in North Carolina chose not to hold a convention. But with four more conventions certain to ratify the new amendment on December 5 or 6, the struggle was virtually over.
Between April and November 1933, thirty-seven states held elections on the question of retention or repeal of national prohibition. Nearly twenty-one million Americans went to the polls to express their preference. No less than fifteen million, 72.9 percent of those voting, favored repeal. Nevada and Wyoming chose delegates in precinct meetings and county conventions, with no tabulation of the popular vote. Both state conventions voted unanimously for repeal. Montana did not elect convention delegates until its 1934 primary; on August 6, 1934, by a vote of forty-five to four, they added their approval of the already ratified Twenty-first Amendment. Nebraska, Oklahoma, and South Dakota declined to hold delegate elections after repeal was certain, while Georgia, Kansas, Louisiana, Mississippi, and North Dakota did not adopt convention legislation.
The lop-sided majority for repeal represented all sections of the country. The delegate elections approximated the February roll calls in Congress which found 70 percent of the House and 73 percent of the Senate favoring repeal. Urban northeast and Great Lakes congressmen voted overwhelmingly wet, while representatives of the more sparsely populated Great Plains and Far West divided more evenly. Southern congressmen, who had voted heavily for prohibition in 1917, for the most part chose repeal in 1933. The popular vote showed a similar pattern, with the West somewhat wetter and the South drier than their congressional delegations, but almost everywhere a clear majority for repeal.
The repeal plurality in Connecticut, Rhode Island, New York, and New Jersey exceeded 85 percent; in Massachusetts and Maryland 80 percent; and in Pennsylvania and Delaware 75 percent. In the Midwest, Illinois, Michigan, Wisconsin, and Missouri all recorded 75 percent or more in the wet column; and Ohio, home of the Anti-Saloon League, registered 71 percent for repeal. Iowa, Minnesota, Colorado, Utah, Oregon, and Washington all posted repeal majorities of between 60 and 68 percent, while in Arizona, New Mexico, and California the antiprohibition vote was 76 or 77 percent. Several southern states did not hold conventions, but with the exceptions of the Carolinas and Tennessee, those states which voted produced wet majorities of 59 percent or more. Sectional distinctions appear, but they pale in light of the dimensions of the wet landslide.
Precise, sophisticated, precinct-by-precinct quantitative analyses of these special elections-the kind which have contributed so much to better understanding of presidential voting patterns-are, unfortunately, not possible because only aggregate returns are available. The AAPA, however, distinguished the returns of each state's principal urban areas from the balance of the state and found surprisingly little difference between them despite the usual assumptions about wet cities and dry countryside. In most states the repeal plurality fell off outside the metropolitan areas, but only Utah, Tennessee, and the Carolinas recorded a dry majority there. In Virginia, outside the state's major urban centers, the vote was 60 percent wet; in West Virginia, Indiana, and Arkansas, 58 percent; in Vermont, 64 percent; in Iowa and Colorado, 60 percent; in Alabama, 52 percent; in Idaho, 57 percent; and in Ohio, 63 percent. In quite a few states, the most sparsely populated counties did return dry majorities, but everywhere the heavy wet vote extended far beyond the city limits.
The brief, formal state ratification conventions merely validated decisions made at the polls. With the exception of South Carolina, where voters chose a full slate of at-large delegates opposed to repeal, and Indiana, where one-fourth of the district delegates were elected on the basis of their opposition to repeal, hardly a delegate objected to ratification in the conventions. In only eight conventions were negative votes cast at all. So perfunctory were the actions of the conventions in carrying out voters' wishes that the question arose as to whether a simple, direct referendum would not have been more sensible and economical.
Still, state convention proceedings provide some insight into delegates' thinking and the influence of the Association Against the Prohibition Amendment, the Women's Organization for National Prohibition Reform, and other antiprohibition organizations. In the first place, many AAPA and WONPR leaders served as delegates and convention officers. His fellow delegates elected Pierre du Pont chairman of the Delaware convention. The Michigan convention chose Mary Alger, head of the state WONPR, as president pro tempore; and in both Kentucky and Missouri, WONPR leaders served as temporary convention chairmen. State AAPA leaders chaired the Colorado, Connecticut, Florida, Kentucky, Minnesota, Texas, and Wisconsin conventions, and in California the head of the association was elected honorary president of the convention. In at least five states, Colorado, Florida, Minnesota, Texas, and Utah, WONPR officials were named convention secretary. In Pennsylvania, where four of the fifteen delegates were AAPA directors, W. W. Montgomery received the honor of presenting the repeal resolution. Delegates to the New York convention included James Wadsworth, Henry Curran, and Grayson Murphy of the AAPA, Pauline Sabin and several others from the WONPR, Joseph H. Choate, Jr., Selden Bacon, and Frederic R. Coudert of the Voluntary Committee of Lawyers, as well as those prominent allies of the wet organizations, Nicholas Murray Butler, Elihu Root, and Al Smith. The New York convention, packed with ex-governors, politicians, and other prominent citizens, chose Smith as president, Root as honorary president, Wadsworth as vice-president, and Pauline Sabin as chairman of the resolutions committee. Throughout the country, the AAPA and WONPR were well represented in the ratifying conventions.
Some of the conventions merely met, chose officers, ratified the proposed amendment, and adjourned. New Hampshire completed its work in a breathtaking seventeen minutes. A number, however, passed resolutions or listened to explanations of the reasons behind the repeal vote. Speakers often mentioned the need to provide new sources of tax revenue and stimulate business activity in the face of the country's desperate economic situation. Most frequently, however, they defined the need for repeal in terms long used by the AAPA: the need to restore local self-government, to protect individual rights, and to put an end to crime, intemperance, and social decay. "This convention, in casting its vote against the Amendment, is declaring the strong opposition of our people to any amendment of our National Constitution that denies to the several states the control of the habits, customs and privileges of its own citizens," announced Illinois Governor Henry Horner." Other speakers in states as diverse as Connecticut, Kentucky, Maryland, Ohio, Utah, and Virginia agreed that the Eighteenth Amendment erred by usurping each state's right to govern its local affairs. At the New York convention, James Wadsworth proclaimed the battle for repeal well worth the effort "because it was waged for a fundamental principle of government. " " One Florida delegate declared, "The tragic error we are engaged in correcting... came from a misconception of the very essence of the federal principle... on which our federal government was founded, as well as the yet more potent promptings of human nature," while another called repeal the most important demonstration of the American people's determination to have a free and democratic government "since our forefathers threw the British tea overboard in Boston Harbor.""
In the course of various conventions, speakers commented on the significance of the ratification process being used. No means now existed of knowing whether the people would have ratified the Eighteenth Amendment, Governor Stanley C. Wilson of Vermont remarked, "but we do know that if this method is adopted of providing for an amendment to the Constitution, there can be no question about how the people feel as to the amendment."" State senate president Emerson L. Richards, presiding at the New Jersey convention, praised "this ancient form of popular expression-the convention" as "the greatest weapon for the correction of the evils of government."" "In this day of Fascism and Sovietism and the subjugation of people to the domination of the State or a man," said Leonard Weinberg, chairman of the Maryland convention's resolutions committee, "this marks a rededication of the people of America to the principles of Democracy.""
Speaker after speaker insisted that individual freedoms could not be altered through constitutional amendment except with the people's direct concurrence-possible only through ratification of amendments by convention. No one referred directly to the 1919 Ohio ratification controversy, the Hawke v. Smith or Sprague decisions, and the interest thus generated in the convention system; but Sidney Stricker, Ohio VCL leader and chairman of the resolutions committee at his state's ratification convention, alluded to t hem. He told the Ohio delegates that "tyranny and intolerance" could not he imposed by a minority and that "a law-abiding people" now enjoyed "a government of free institutions responsive to the will of the people."" To Stricker and many other delegates, the conventions of 1933 represented the discovery of a better, more democratic method of revising the Constitution. To eighty-nine-year-old Ehhu Root, the convention simply provided a pleasant vindication. "Nobody seemed to remember that it was his duty to hate anybody else, and that made the occasion both novel and refreshing.""
On December 5, 1933, state conventions in Pennsylvania, Ohio, and Utah maneuvered to be the thirty-sixth to ratify the new Twenty-first Amendment. Utah won the honor by drawing out its proceedings until three hours after Pennsylvania and then Ohio completed action. A nationwide radio audience could hear the final roll call which ended at 3:32 P.m., mountain time. Only 288 days had passed since Congress had sent the proposed amendment to the states." President Roosevelt proclaimed the Eighteenth Amendment repealed and urged that temperance mark the return of legal liquor sales. The board of directors of the Association Against the Prohibition Amendment, meeting that evening in New York, rejoiced." They had reached their goal. The hitherto impossible had been achieved. For the first time in its history, the republic had rescinded an amendment to the Constitution.
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