Shaping the Eighteenth Amendment

Temperance Reform, Legal Culture, and the Polity, 1880-1920

Richard F. Hamm

• Publisher: The University of North Carolina Press
• Year: 2000
• Print ISBN: 9780807844939, 9780807821817
• eBook ISBN: 9780807861875
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Richard Hamm examines prohibitionists' struggle for reform from the late nineteenth century to their great victory in securing passage of the Eighteenth Amendment. Because the prohibition movement was a quintessential reform effort, Hamm uses it as a case study to advance a general theory about the interaction between reformers and the state during the Gilded Age and Progressive Era. Most scholarship on prohibition focuses on its social context, but Hamm explores how the regulation of commerce and the federal tax structure molded the drys' crusade. Federalism gave the drys a restricted setting — individual states — as a proving ground for their proposals. But federal policies precipitated a series of crises in the states that the drys strove to overcome. According to Hamm, interaction with the federal government system helped to reshape prohibitionists' legal culture — that is, their ideas about what law was and how it could be used.

Originally published in 1995.

A UNC Press Enduring Edition — UNC Press Enduring Editions use the latest in digital technology to make available again books from our distinguished backlist that were previously out of print. These editions are published unaltered from the original, and are presented in affordable paperback formats, bringing readers both historical and cultural value.

PART ONE
RADICALS AND THE POLITY

CHAPTER 1
THE RADICAL PROHIBITION MOVEMENT AND THE LIQUOR INDUSTRY

The American polity in the last quarter of the nineteenth century saw both the rebirth of the prohibition movement and the emergence of the manufacture and sale of liquor as one of the nation’s leading industries. Conflict between the two was inevitable. But the ideas of the prohibition movement, the qualities and actions of the drys’ opponents, and the nature of the polity channeled that conflict into certain courses. A radical temperance ideology with its allied Mosaic legal culture predominated within the temperance crusade in the last two decades of the century. The drys’ ideology and legal notions made it difficult for them to achieve much success in the American polity dominated by formal and informal rules administered by political parties and courts. Yet the popularity of temperance allowed drys to establish beachhead prohibition states. The liquor industry, after failing to block the adoption of prohibition in these states, challenged the policy in the federal courts. These legal confrontations set the parameters for the next three decades of liquor law struggles.

As old as the republic, temperance was a quintessential American reform. At the time of the Revolution, some leading figures, most notably Benjamin Rush, advised Americans to moderate their consumption of liquor. The early agitators focused on the relatively new distilled spirits, advocating that people drink the less powerful fermented and brewed beverages. Their appeals to the citizenry had little effect. By the early nineteenth century per capita consumption of alcohol ran at least two times the modern average. Use of liquor pervaded American life. Most of the population, from youth to old age, consumed it, often at every meal from breakfast through supper. It was common practice to drink at every social event and even at work.¹

But the havoc that liquor worked in American life caused many to advocate temperance. Thus, in the early part of the nineteenth century, liquor lost its legitimate role in many parts of American society. The Second Great Awakening altered many middle-class Americans’ view of alcoholic beverages. Going beyond the ideas of the earlier agitators, the new evangelicals saw liquor not as a necessary and benign part of life, but as an evil influence that threatened to weaken society by destroying individuals. They abstained from spirits themselves and sought to convince others to do so. In the 1840s the Washingtonians—a working-class temperance movement—emerged in the cities and spread across the nation. Members of this organization signed a temperance pledge not to drink any alcoholic liquors. In the next decade the pledge idea spread into the middle class, with the birth of other total-abstinence organizations. One of them, the Order of Good Templars, proclaimed their freedom from spirits by donning white ribbons and thus created the enduring symbol of the temperance movement. But moral suasion did not eliminate alcohol from American society, and this fact drove some temperance reformers to advocate legal means of controlling liquor.²

One legal means, state prohibition of liquor, became the goal of many antialcohol reformers. Between 1851 and 1855 thirteen states adopted prohibition. The drys even proposed writing prohibitory clauses into state constitutions to assure that the policy would prevail. But in many states, court rulings undermined the effective enforcement of these laws; in two states the highest courts declared the measures unconstitutional. Furthermore, the rise of the Republican party, which avoided prohibition while promoting temperance, and the Civil War’s effect of diverting the energies of the “moral reform forces” stopped, and then reversed, prohibition progress. By the end of the war, only five states maintained their prohibition laws; a decade later only Maine, New Hampshire, and Vermont continued as dry states with admittedly lax enforcement. This early antiliquor agitation shared parallels with other reforms.³

The pattern of action shown by the temperance crusade in the early and middle nineteenth century corresponded roughly to the path followed by antigambling advocates. These reformers shared the drys’ motivation, the goal of banning of a common social practice, and a similar decline during the sectional crisis. Before 1800 gambling was endemic in American society; indeed, colonial and early republic governments as well as private companies engaged in public works used lotteries extensively. In the early nineteenth century religious groups began to criticize lotteries, focusing on their abuses and urging people not to gamble. The Second Great Awakening added fuel to this antigambling movement and inspired it to urge the abolition of lotteries. Under this pressure, states began first to refuse licenses to new lotteries and then to ban them. By 1840 twelve states prohibited lotteries, and the movement put them on the defensive. But the war and Reconstruction slowed the campaign against lotteries, as they thrived in states where they were still legal and reappeared in some states where they had been outlawed as a means of raising revenue. The Louisiana State Lottery Company, created in 1868, became a powerhouse in that state’s government and widely engaged in its trade in other states. Thus in the postwar period, reformers resumed their offensive against gambling.⁴

The experience of temperance and antigambling reforms points to the fundamental fact that in this era, when moral reformers wished to accomplish something, they turned first to the state governments. For instance, another reform, the pure food movement, began at the state level. Lawyer George Thorndike Angell led the late-nineteenth-century pure food movement. Angell, who shared the religious values of the prohibitionists, came to the cause through his work against animal cruelty. His goal was to create an abolitionist-style crusade to purify the nation’s food; he began his work at the state level. This common pattern underscores the decentralized nature of the American polity before the war. After the war, these early crusades reverberated in a changed American society.⁵

The first temperance crusade made liquor drinking a public issue and changed Americans’ drinking habits. Liquor lost its predominance as a drink for all occasions; when many had abandoned spirits, it became harder to include it in all activities. Thus, following the war, liquor consumption became centered in saloons. In 1873 about 100,000 of these establishments dotted the landscape. In 1890 cities with over 50,000 in population had a saloon for every 250 inhabitants. Besides their chief purpose of selling liquor, they served many important social functions on the frontiers and in the cities. But in doing so, they violated the most reasonable of restrictions, such as the prohibition on sales to minors, earning unsavory reputations. Nineteenth-century Americans sensitive to the liquor issue saw that drinking exacerbated certain illnesses, diverted income destined for subsistence, and led, in many cases, to violence and misery. They thought that banning liquor would alleviate, if not solve, these many social problems. These facts and arguments struck some Americans harder than others.⁶

In the late nineteenth century, religious affiliation and ethnicity predisposed many to see prohibition as a viable method of controlling the general disorder in society, and others to perceive it as foolish and dangerous governmental meddling in people’s lives. In particular, pietists, members of evangelical sects, including Baptists, Methodists, and Presbyterians, whose religions rested on the bedrock of conversion and good behavior, saw prohibition as a needed corrective to the nation’s moral laxity and resulting social problems. Liturgicals—Catholics, Episcopalians, and German Lutherans, espousing religions that emphasized belief over action—did not find prohibition an appealing method of remedying social ills. Since religion followed ethnic lines, old-stock Americans—of English and Scottish heritage—and some Scandinavian immigrants and their children more often supported prohibition than the Irish, German, Italian, and Polish immigrants, along with their descendants. The settling of immigrants in the cities added urban and rural dimensions to the division between wet and dry. Thus a cluster of factors-religious ideology, ethnic tradition, and place of residence—combined to create two different worldviews, which found alcohol use either acceptable or abhorrent.⁷

In the second half of the nineteenth century, despite the influx of immigrants and the collapse of state prohibition laws, temperance sentiment did not disappear. The temperance organizations, especially the Order of Good Templars and the newly founded National Temperance Society and Publication House (established in 1865), attempted to counteract the erosion of prohibitionist support. Their efforts centered on building favorable public opinion, chiefly through the publication of propaganda. Yet moral suasion did not forestall the repeal of state prohibition laws. So many drys determined to go beyond temperance tracts and speeches. From the rubble of the first, a second crusade emerged, becoming a national force in the 1880s. The revived temperance movement built a new structure on the antebellum reformers’ foundation of moral suasion and legal remedies. New organizations, the National Prohibition party and the Woman’s Christian Temperance Union, proposing programs more sweeping than the earlier reforms, dominated this second wave of temperance activity. Many drys blamed the earlier agitators’ reversals on the political power of the liquor interests and entered politics to combat the influence of what they called the liquor traffic. In the wake of the organization of state prohibition parties in Michigan, Illinois, and Ohio, an 1869 convention called and attended by prominent prohibitionists launched the National Prohibition party. Dry distrust of the major parties, which largely ignored temperance reform, led to their forming a party dedicated to prohibition. They did so on their own terms; radical drys defined a political party idealistically as “an agreement of some number of people upon” public issues.⁸

The formation of a new party underscores the difficulties the drys suffered in attempting to influence the polity to adopt their program. Other reformers of the period who shared similar origins, enunciated similar ideologies, and proposed abolishing other evils did not form political parties. They had no need to because the existing parties met their demands and they faced no organized opposition. For instance, the vice societies that sprang up in American cities in the 1870s—such as the New York Society for the Suppression of Vice and the Boston-based Watch and the Ward Society—remained societies and did not become political parties. Like the drys, members of these organizations, driven by religious and social values, sought to repress what they saw as a social evil. There was a close convergence between dry and vice-society ideas; for example, both movements believed, in the words of Anthony Comstock, that “private interests must be subservient to the general interests of the community” and that action was necessary “to prevent the moral diseases which lead to misery and crime.” But the opponents of vice societies were “religious liberals and advocates of freedom of the press,” which constituted a “small unheeded minority.” Thus the existing parties acceded to the enactment and enforcement of stricter anti-obscenity laws; through reformers’ agitation twenty-two states enacted general obscenity laws and another twenty-four banned birth control and abortion information. But the major parties rejected the prohibitionists, and given the constraints of the polity, they were forced to form their own party.⁹

The Prohibition party emerged as the leading temperance organization in the 1870s and 1880s. Looking to what they perceived as the antislavery success of the 1850s, they believed that their efforts could destroy the current party system and give birth to a new political era dominated by a party favorable to prohibition. It never succeeded in its grandiose plan to reshape the party system. Its members came primarily from the temperance wing of the Republican party. While it failed to become a true national organization, it gained strength in the northeastern and midwestern states, traditional bastions of Republicanism. The party grew sporadically from the 1870s into 1890s, responding to state Republican organizations’ stands on prohibition. Where the Republicans retreated on the issue, the Prohibition party gained votes, reaching its electoral zenith in 1892, when it gleaned over a quarter of a million votes. Its chief accomplishment was proselytizing; through its platforms and candidates the Prohibition party brought the liquor issue into the public eye. The party also took the lead in the articulating and refining of prohibitionist ideas and programs. But the party was never able to defeat the liquor interests in the political arena or curtail the sale of liquor.¹⁰

After the war, the first temperance advocates to confront liquor sellers directly and demand a halt to alcohol sales were middle-class women of over four hundred midwestern villages, towns, and cities. In the winter of 1873–74 groups of women knelt in the snow before saloons and exhorted the proprietors and patrons to abandon “demon rum.” The successes of these “women’s crusades” in closing saloons and in capturing the nation’s attention opened the eyes of many to the possibilities of direct action against the liquor interests. Overnight women organized temperance unions to channel female energy into the struggle. The next winter these local organizations federated into the National Woman’s Christian Temperance Union.¹¹

Paradoxically, building the WCTU organization diverted the women’s energy from frontal assaults on liquor dealers. The women worked industriously, and in the 1880s the WCTU emerged as the nation’s largest women’s group. The WCTU’s founders followed the pattern of trade unions in erecting an elaborate organizational structure. Each participating community had at least one union, formed under the authority of a state union. State organizations, while affiliated closely with the National WCTU, were in theory autonomous. In operation personality overcame these structural bonds.

The dynamic and charismatic Frances Willard, president of the National WCTU from 1879 to her death in 1898, dominated the formal organization and personally influenced the WCTU’s rank and file as well as many other American women. Where Willard led they followed. Willard endorsed a “do everything” program that included women’s suffrage, temperance education in schools, rights for laborers, and from 1884 to 1898 support of the Prohibition party. Since the lack of the franchise limited its political effectiveness, the WCTU’s political program boiled down to lobbying legislators and circulating petitions. Thus, like the Prohibition party, the WCTU centered its efforts on turning public opinion against the liquor traffic.¹²

The efforts of the Prohibition party and the WCTU in organizing and campaigning for prohibitionist candidates, along with their active programs of moral suasion, brought their message to the people. The extent of their activities was startling: John St. John, the 1884 Prohibitionist candidate for president, took to the lecture circuit in the late 1880s and by 1896 had delivered over 3,500 speeches. Frances Willard, Sallie Chapin, and other prominent white ribboners (members of the WCTU took the Templars’ symbol as their own) kept a similar pace. During the late 1880s and early 1890s drys founded no fewer than three major weekly newspapers. By 1890 the party’s papers (the Voice and the Lever) and the official WCTU newspaper (the Union Signal) had a combined subscribership of over 100,000. The success of these efforts in building public sentiment favorable to prohibition can be measured by the revival of agitation for state prohibition laws.¹³

In 1875 just three prohibition states (Maine, New Hampshire, and Vermont) remained from the first temperance wave. By 1890 a second surge doubled the number of dry states, with Kansas, North Dakota, and South Dakota joining the fold. Iowa and Rhode Island also adopted prohibition but quickly repudiated the policy. Moreover, between 1880 and 1890, prohibition became a serious issue before the legislatures of at least fourteen other states. In some states, legislatures referred the issue to the public through referenda, and 46 percent of those voting in all the referenda held in that decade favored prohibition. Yet the widespread popularity of the cause did not transfer to the major temperance organizations. Most American considered the members of the Prohibition party and the WCTU to be extremists, and many denounced them as fanatics; the drys’ ideology contributed to this negative impression of the movement.¹⁴

A radical ideology dominated the national temperance organizations of the 1880s and 1890s. Radicals embraced an absolutist ideology and a crusading style. They followed the “radicalism of principle” and were “as constant in their devotion to the cause as the needle to the pole” because “the magneti...

Table of contents

• Cover Page
• SHAPING THE EIGHTEENTH AMENDMENT
• Copyright Page
• Dedication
• CONTENTS
• ACKNOWLEDGEMENTS
• INTRODUCTION
• PART ONE RADICALS AND THE POLITY
• PART TWO PRAGMATISTS AND THE POLITY
• CONCLUSION
• SOURCES AND TEXTUAL CONVENTIONS
• NOTES
• INDEX