progressivism and two roads to prohibition

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ASHLAND UNIVERSITY

PROGRESSIVISM AND

THE TWO ROADS TO PROHIBITION

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE

REQUIREMENTS FOR THE ASHBROOK SCHOLARS PROGRAM AND

THE DEGREE OF BACHELOR OF ARTS

BY JEREMY HORTON

APRIL 29, 2009

DEPARTMENT OF POLITICAL SCIENCE

AND HISTORY



“The years after the Civil War saw not one but two new beginnings in American

politics. The first was to some extent a working and living out of the principles of the

Founding, a resumption of old ways now elucidated and ennobled by the tragedy of

the War and by the triumph over slavery. But very quickly this perpetuation or rebirth

of the old freedom began to give way before the advance of a New. Hope-filled

experiments in American politics began to be conducted, whose character was not

altogether unlike the epochal experiment dared by her ancestors in the garden, while

God was not looking. The same pretension that found its temptation, and purpose,

and the liberation of the passions reached out for knowledge of a new kind – for the

wisdom of history that was at once to completion and nullification of the knowledge

of good and evil. The results of that original experiment were not as happy as had

been predicted, but whether these latter-day political experiments portend a similar

disappointment – and alike rebuked? – remains to be seen. Already they have

proceeded, with occasional interruptions, for more than a century.”

-Charles R. Kesler



1

INTRODUCTION.................................................................................................................................................2

A CONSTITUTIONAL DISCREPANCY......... ......... .......... ......... .......... .......... ......... .......... ......... .......... .......... ......... .........2

THE VARIOUS ROADS TO REFORM.......... .......... ......... .......... ......... .......... .......... ......... .......... .......... ......... .......... .......10

DRUGS, ALCOHOL, AND THE COMMERCE CLAUSE................................................................13

GONZALES V. RAICH AND THE CONTROLLED SUBSTANCES ACT...............................................................13

19TH CENTURY LIQUOR COMMERCE AND THE WILSON BILL.....................................................................17

“THE OLD ORDER CHANGETH”.........................................................................................................27

TWO CONCEPTS OF CONSTITUTIONALISM...........................................................................................................27

THE PURPOSE OF GOVERNMENT..............................................................................................................................30

THE PRE-PROGRESSIVE TEMPERANCE MOVEMENT..............................................................35

AMERICA’S OLDEST REFORM MOVEMENT...........................................................................................................35

TEMPERANCE, RELIGION, AND LIBERTY...............................................................................................................38

“THE GREAT LEGAL FORTRESS OF INTEMPERANCE”......... .......... ......... .......... .......... ......... .......... ......... .......... .43

THE WCTU’S “FIGHT FOR A CLEAR BRAIN”......................................................................................................48

TEMPERANCE PROBLEMS IN PRE-PROGRESSIVE AMERICA......... .......... .......... ......... .......... ......... .......... .........52

THE TEMPERANCE MOVEMENT’S PROGRESSIVE TRANSFORMATION.......................58

THE PRAGMATISM OF THE ANTI-SALOON LEAGUE.........................................................................................58

WEBB-KENYON AND THE EIGHTEENTH AMENDMENT.......... .......... ......... .......... ......... .......... .......... ......... ......61

PROGRESSIVE IDEAS, THE TEMPERANCE MOVEMENT, AND THE ANTI-NARCOTICS MOVEMENT63

THE ANTI-NARCOTICS MOVEMENT...............................................................................................67

THE SPREAD OF DEMOCRACY......... .......... .......... ......... .......... ......... .......... .......... ......... .......... ......... .......... .......... .......67

THE ONE-MAN REFORM MOVEMENT......... .......... .......... ......... .......... ......... .......... .......... ......... .......... .......... ......... .72

THE OPIUM EATERS.......................................................................................................................................................77

THE BEGINNINGS OF FEDERAL NARCOTICS PROHIBITION............................................................................83

CONCLUSION...............................................................................................................................................87



2

INTRODUCTION

How strangely will the Tools of a Tyrant pervert the plain Meaning of Words!

–Samuel Adams,

Letter to John Pitts, January 21, 1776

A Constitutional Discrepancy

In September of 2002, Robert C. Luisi was convicted in a federal court for

violating the Controlled Substances Act on three separate counts of cocaine possession

and distribution.1 Luisi appealed the initial decision to the U.S. District Court of

Massachusetts where Judge William Young presided. Luisi had admitted to

distributing cocaine, but was basing his appeal on entrapment accusations that he

made against the federal agents who arrested him. Not surprisingly, he was found

guilty once again.2 The Judge stated, “Although Luisi’s entrapment defense at times

lent the proceedings the air of The Godfather , the trial was otherwise unremarkable.”3

Except for one incident that occurred, this description was quite accurate.4 Although

the case was not noteworthy from anyone’s perspective other than Mr. Luisi’s, a

confrontation took place during jury deliberations that raised a significant question.

1 Title 21, section 841 (a) (1) of the U.S. Code states that it is unlawful to “manufacture, distribute, or

dispense, or possess with intent to manufacture, distribute, or dispense, a controlled substance.”

http://www.usdoj.gov/dea/pubs/Controlled Substances Act/841.htm# 2

U.S. Department of Justice, Bureau of Justice Statistics, Sourcebook of Criminal Justice Statistics Online,

http://www.albany.edu/sourcebook/ind/DRUGS.Court_cases,_Federal.Convictions.2.html . From 2001-2004, the

percentage of people convicted of a federal drug offense when they were charged was 90.64%.3

Judge D.J. Young, United States District Court for the District of Massachusetts, United States of America v. Robert C. Luisi Memorandum, July 25, 2008, 1-2; United States v. Luisi, 482 F.3d 43 (1st Cir. 2007), Luisi

was an admitted member of the La Cosa Nostra crime family. One of his superiors was working with the FBI and

instructed Luisi to purchase and sell the cocaine, which was the basis for his entrapment defense. The U.S. Court of

Appeals, First Circuit decided that the original conviction was erroneous because the jury had not been properly

instructed on the entrapment defense, http://bulk.resource.org/courts.gov/c/F3/482/482.F3d.43.03-1470.html .4

According to the Compendium of Federal Justice Statistics, cases involving drugs are extremely prevalent.

From 2002 to 2004, 38% of cases heard were drug-related. This means that of the 277,968 cases brought into federal

court, 106,554 of them were brought on because of drug charges. Immigration cases are the next most common, but

account for only about 24% of the total federal docket, http://www.ojp.usdoj.gov/bjs/pubalp2.htm#cfjs .



3

The law that Luisi was charged with breaking was the Controlled Substances

Act and considering the facts of the case, it should have been fairly easy to get a

conviction. One juror, however, made it unusually difficult. On the first day of

deliberations, an argument broke out between this juror and the judge. According to

Judge Young, the juror “refused to accept the legitimacy of the drug laws at issue.”5

The dispute began when the judge received a note from the jury that read:

One juror is asking: Where—if two-thirds of both houses of congress voted in1919 that it was necessary to amend the constitution to give congress the powerto ban mere possession of a substance (prohibition of alcohol in that case)—isthe constitutional grant of authority to ban mere possession of cocaine today?

The judge answered this by saying the jury was not permitted to determine

constitutional issues about the law. Thomas Eddlem, the juror who posed the

question, found this to be an insufficient response. He continued to protest the

validity of the case and would not allow deliberations to go on, even though the judge

was adamant that, “the laws at issue were constitutional and that those on the jury

were not free to substitute their own views.”6 Eddlem was not swayed and cited “the

highest law of the land” to make his case.

Article I, section 8 of the Constitution gives Congress the power to regulate

commerce “among the several states,” which means that the federal government has

no right to prosecute anyone for commerce that takes place within a state, argued

Eddlem, including the buying and selling of narcotics. Therefore, Congress did not

have constitutional authority to prosecute Mr. Luisi for selling cocaine since he did not

cross any state lines to buy or sell it. He offered as further evidence the passage of the

Eighteenth Amendment in 1919, which granted Congress the power to prohibit the

manufacture and sale of intoxicating beverages within the states. The federal

government did not have this authority until one year after ratification of the

amendment.7 This amendment initiated national prohibition, as Congress quickly

5 Young, 3. The 43-page memorandum was written solely on his handling of this situation.6 Young, 3.7 Young, 4.



4

passed legislation that nearly banned all alcoholic beverages in America.8 Given the

legal steps that had to be taken to enact alcohol prohibition, Eddlem wanted to know

where Congress found constitutional authority to prohibit narcotics.

Since Congress only possesses those powers that are enumerated to it through

the Constitution, Eddlem stated, “it was never made clear to me where banning the

mere possession of drugs is authorized.”9 Judge Young told Eddlem that the Supreme

Court had interpreted the Commerce Clause, “to extend to enacting laws with respect

to contraband, including contraband laws.”10 The Commerce Clause, according to the

court, grants Congress the authorization to enact legislation that regulates narcotics

and/or narcotics possession. Eddlem remained unconvinced. Growing impatient, the

judge decided that Eddlem was challenging the validity of the Controlled Substances

Act for moral reasons and was thus “engaged in juror nullification,” which gave the

Court grounds to dismiss him. Eddlem protested this, saying that he believed the

Controlled Substances Act to be invalid not because of his sense of morality, but

because of the Constitution—despite how the Supreme Court had interpreted it.

The constitution should not be interpreted, Eddlem said, “Interpret is a word I

use with reading a foreign language. The Constitution…is written in English.”11 He

did not object to the claim that Mr. Luisi had dealt drugs, but that the trial was being

held in a federal court. This argument did not convince Judge Young, who removed

the “rogue juror,” and replaced him with an alternate.12 The judge claimed that

Eddlem was removed for disregarding the court’s instructions and attempting to

acquit the defendant because of moral opposition to the law in question, which is

otherwise known as juror nullification. Eddlem fought to stay on the jury, but the

judge believed it was clear that Eddlem, “was unable to set aside his personal beliefs

8 This legislation was the Volstead Act (1919) which defined the “intoxicating liquor” that Congress had

the right to prohibit under the 18th Amendment. While not specifically prohibiting consumption the act outlawed

any means by which to obtain it.9 Young, 4. The precise way that Young quoted Eddlem is that “it was never made clear to me where

[banning mere possession of drugs] is authorized.”10

Gonzales v. Raich, 545 U.S. 1 (2005); Wickard v. Filburn, 317 U.S. 111 (1942); U.S. v. Lopez, 514 U.S. 549

(1995).11 Young, 5.12 Young, 35.



5

and apply the law as instructed,” which was a kind of “juror misconduct that could be

classified as nullification.”13 Although he insisted that he did opposed the doctrine of

jury nullification, Young removed Eddlem for acting as if he did. On the day Eddlem

was dismissed, the jury unanimously decided to convict Luisi.

The main focus of Young’s post-trial memorandum was jury nullification and

the dangers it poses to the “jury system, and with it the rule of law and judicial

independence.”14 Young quotes John Adams in his memorandum, stating that the

“impropriety of nullification emanates from the notion that ours is ‘a government of

laws and not of men.’”15 He contended that people may work to change the laws if

they do not agree with them, but they cannot disregard them.16 Although Young gave

an impressive discourse on the importance of the American jury system, he did not

actually address the question posed by Eddlem.

Eddlem did not give a moral argument against the law that Robert Luisi broke;

he gave a legal argument. He did not say that possessing, distributing, or even being

13Young, 6. Council for the defense, not surprisingly, argued for Eddlem to remain on the jury since he

stated that he did not believe it was at all right to determine guilt based on one’s opinion of the law in question.14 Young, 8. According to the memorandum, Eddlem referred to jury nullification as the philosophy of the

fully informed juror. This is a reference to a non-profit organization called the Fully Informed Jury Association

(FIJA), which holds the belief that “The primary function of the independent juror is not, as many think, to dispense

punishment to fellow citizens accused of breaking various laws, but rather to protect fellow citizens from tyrannical

abuses of power by government.” FIJA believes that it is man’s “unalienable right to veto or nullify bad and

oppressive laws.” They even say that men will be “morally compelled” to acquit defendants who are being tried for

violating these kinds of laws. "Fully Informed Jury Association." Fully Informed Jury Association, American Jury

Institute. http://www.fija.org/ (accessed August 12, 2008).

Judge Young rightly claims that this idea is dangerous, as Eddlem also stated. Acquitting those who have

broken the law if one thinks the law unjust, or even if it is unjust, undermines the purpose of the law itself. In

theory, if this doctrine were universally accepted, no law would be enforceable. Any defendant could make the case

that the law that he is being tried for violating is oppressive or tyrannical, which would mean that they should not be

punished; putting the citizen above the law.15 Young, 30. Judge Young explains that this statement is quoted in many Supreme Court decisions: Zuni

Public Schools Dist. No. 89 v. Department of Education; Grupo Mexicano de Desarrollo S.A. v. Alliance Bond Fund, Inc.; and

Patterson v. Shumate, but that the reason he uses it is because it is “generally attributed to John Adams, the author of the Massachusetts Constitution.16 Young, 32. In arguing against nullification, the judge acknowledged that “there have been isolated

instances of ‘benevolent’ nullification,” such as the cases of people being acquitted of violating fugitive slave laws

before the passage of the 13th Amendment, but that these few examples “from bygone centuries, are exceptions to

an otherwise abhorrent string of lawlessness.” Jury nullification is no longer justifiable in any case for him. His

argument against the practice is convincing, as he clearly makes the case that if it were accepted by the masses as a

sound legal philosophy, jury nullification would completely undermine the rule of law and lead the nation towards

anarchy. He quotes U.S. v Thomas (2nd Circuit, 1997) in his use of “benevolent,” and says that the majority opinion

added “some may regard [this type of nullification] as tolerable.”



6

addicted to cocaine and selling children as slaves to satiate that addiction was morally

defensible. A few months after the incident, he even said, “I would not have hesitated

to have convicted Luisi in a state court of possession charges, nor in federal court of

trafficking charges with sufficient evidence. Even if no drugs had actually been

transported across a state line, but there was evidence of a conspiracy to do so, I

would have voted to convict Luisi.”17 He did not see how the Controlled Substances

Act could be upheld by the clause in the Constitution that reads: “The Congress shall

have power . . . To regulate commerce with foreign nations, and among the several

states.” If Congress’s powers are enumerated by the Constitution, so as to not have

the power to do anything outside of those enumerated powers then how does the

commerce clause permit the federal government to regulate the possession of drugs in

cases such as Luisi’s?

Young argued that if a jury acquitted an accused person due to a personal

problem with the law in question would undermine the rule of law completely.

However, given the text of the Constitution, Eddlem wanted to know how the statute

in question did not undermine the rule of law itself. Why was it necessary to amend

the Constitution so Congress would have the power to prohibit the intrastate

commerce of a particular substance in 1919 and such an amendment has not been

required to for the prohibition of other substances? Why is constitutional

authorization not needed for the government to prohibit the intrastate use of other

narcotics?

Judge Young did not answer these questions other than by saying that the

Supreme Court decided that the Commerce Clause had been interpreted “to permit

Congress to pass laws relating to drugs that did not cross ‘more than two’ state lines,”

and that Eddlem had to judge the case according to that interpretation.18 The judge

felt that this was the only way a jury could simultaneously exercise its power and

preserve the sanctity of the law. According to Eddlem, this had precisely the opposite

17 Thomas Eddlem. "'Rogues' and Humpty Dumpty Judges." LewRockwell.com.

http://www.lewrockwell.com/eddlem/eddlem24.html (accessed September 13, 2008).18 Young, 6.



7

effect, destroying the entire purpose of the law. They both argued that adherence to

the law is required for a free government to sustain itself, but they disagreed on how

the law should be interpreted. Specifically, they disagreed on how a particular law is

determined to be constitutional and what ‘constitutional’ means. Though not a jurist,

Eddlem was technically correct when he said that the Constitution contains nothing

that explicitly grants Congress the power to regulate the manufacture, sale, or use of

drugs that are not a part of interstate commerce. However, looking at the past century

it is clear that this has not caused many judges—especially federal judges—to question

the constitutionality of the federal government’s policy of drug prohibition.19 Judge

Young defended the federal government’s right to regulate narcotics and it is not

surprising that he won that particular battle, but the fundamental question remains

unsettled.

The main issue of the confrontation was constitutional interpretation. Both

argued that the law must have more authority than men, but the inherent difficulty

with this is that manmade law cannot be separated from language and will therefore

always be a matter of interpretation. The judge claimed that the juror was creating his

own law while the juror essentially blamed the judge for doing the same thing. In

describing the quarrel between himself and the judge, Eddlem used a dialogue from

Lewis Carroll’s Through the Looking Glass as an analogy:

"When I use the word," Humpty Dumpty said, in a rather scornful tone, "itmeans just what I chose it to mean – neither more nor less."

"The question is," said Alice," whether you can make words mean so manydifferent things."

"The question is," said Humpty Dumpty, "which is to be the master – that’sall."20

19 Gonzales v. Raich, 545 U.S. 1 (2005) Clarence Thomas, William Rehnquist, and Sandra Day O’Connor

dissented.20 Thomas Eddlem. "'Rogues' and Humpty Dumpty Judges." LewRockwell.com.

http://www.lewrockwell.com/eddlem/eddlem24.html (accessed September 13, 2008).



8

Judge Young instructed Eddlem to judge the defendant’s guilt only according

to his interpretation of the Constitution, citing a Supreme Court ruling to justify his

stance.21 Eddlem, on the other hand, cited the Eighteenth Amendment to validate his

claim, but the judge did not think it necessary to explain why the prohibition of

narcotics was not preceded by a constitutional amendment like the prohibition of

alcohol was. It would perhaps be unreasonable to accuse the judge of not fulfilling his

duties by failing to answer the question posed to him, but the question, nonetheless,

deserves an answer. Why was the Constitution amended to prohibit alcohol but such

action was not necessary to prohibit narcotics?

In describing how Judge Young would only define the Constitution in such a

manner that it supported his own opinion, it is somewhat fitting for Eddlem to have

used a passage from Carroll’s Through the Looking Glass as an analogy.22 Redefining a

word so that it can be reconciled with a particular proposal was a very successful

tactic used by the progressives during the early part of the 20th century, with

Woodrow Wilson arguably being the most prominent to do so as both a progressive

scholar and politician. In his 1913 work, The New Freedom (as opposed to the “old

freedom”), Wilson also used a passage from Lewis Carroll’s book, but in this case to

explain why he was “forced to be a progressive.”23 In the passage, the Queen grabs

Alice’s hand and they begin to run incredibly fast. After doing so for about as long as

they can, they stop abruptly. Alice looks around and says, “Why, we are just where

we were when we started!” The Queen replies to this by saying, “Oh yes, you have to

run twice as fast to get anywhere else.”24

21 Young is a Reagan appointed judge and Eddlem described him as doing a “better than average job” at

explaining the law in the case. According to Eddlem, Young even agreed that courts have gone “too far” instretching the Commerce Clause to apply to things like firearms, citing the U.S. v. Lopez case.

23 Wilson,Woodrow ,”The New Freedom,” The Essential Political Writings. ed. Ronald J. Pestritto [Lanham:

Rowman and Littlefield Publishers, Inc., 2005], 117. Wilson does not quote the book accurately but sufficiently

paraphrases it. Lewis Carroll, Through the Looking-Glass and What Alice Found There, University of Virginia Library,

Electronic Text Center [1993]24 Wilson, “The New Freedom,” The Essential Political Writings, 117.



9

Wilson called this, “the parable of progress,” which expressed his sentiment

that the United States was stuck in the past and did not have the political tools

necessary to improve. The progress that Wilson and other progressives believed in

required an expansion of the government’s powers and the government itself. This

required that a new notion of government’s purpose be adopted. Wilson explains

further:

The laws of this country have not kept up with the change of economiccircumstances in this country; they have not kept up with the change ofpolitical circumstances; and therefore we are not even where we were when westarted…

I am, therefore, forced to be a progressive, if for no other reason, because we

have not kept up with our changes of conditions, either in the economic field orin the political field. We have not kept up as well as other nations have. Wehave not kept our practices adjusted to the facts of the case, and until we do,and unless we do, the facts of the case will always have the better of theargument; because if you do not adjust your laws to the facts, so much theworse for the laws, not for the facts, because law trails along after the facts.Only that law is unsafe which runs ahead of the facts and beckons to it andmakes it follow the will-o'-the-wisps of imaginative projects.

In order for the progressives to adjust the “law to the facts,” the theory of

constitutionalism that the American founders had designed the Constitution

according to would have to be altered. Such a change would remove the obstacle that

the progressives faced in trying to implement their desired reform ideas, but it would

have to come slowly. As Wilson himself asserted, “Wherever regard for public

opinion is a first principle of government, practical reform must be slow and full of

compromises.”25 The progressive movement caused such a gradual transformation to

take place in the theory and practice of American government, which greatly

influenced the development of federal policies regulating alcohol and narcotics in the

early 20th century.

25 Woodrow Wilson, “The Study of Administration,” [November 1, 1886]

http://teachingamericanhistory.org/library/index.asp?document=465 , (accessed April 3, 2009).



10

The Various Roads to Reform

The temperance movement began long before the progressive movement

emerged in the late 19th century. The anti-narcotics movement was much different in

this manner, as it was born in the progressive movement. This was one of the keyreasons that the anti-narcotics movement and the temperance movement had such

different outcomes regarding the two prohibitory policies of both substances. The

temperance movement, which caused the Eighteenth Amendment to be adopted, was

completely separate from the movement that resulted in the first federal legislation

used to prohibit narcotics.26 The different paths taken by the anti-narcotics movement

and the temperance movement, and the reasons why such divergent paths were taken,

explains why alcohol prohibition was enshrined in the Constitution but narcoticsprohibition was not.27

Both of the movements against narcotics and alcohol fell within the broader

progressive movement, which also desired to reform social concerns such as

prostitution, child labor, pure food laws, and others. Each of these movements had

preferred means of addressing their respective issues, which usually fit into one of

three categories: abolition, regulation, or reformation. Movements that wanted to

enact reform on the federal level were limited in their options, as they “hung theirproposals on certain constitutional hooks.”28 The Constitution identifies five federal

powers that could be used by these reformers: territorial, postal, treaty, taxation, and

the commerce power.29

Prostitution-related legislation was first passed in 1910 with the Mann Act.

This prevented the interstate trafficking of women for “immoral purposes,” but after a

series of Supreme Court decisions, it was eventually used to regulate prostitution

26 Deets Pickett; Wilson, Clarence True; Ernest Dailey Smith, Cyclopedia of Temperance, Prohibition, and

Public Moral, [New York, The Methodist Book Concern, 1917 ed.], 150. This is not to say that temperance

supporters were not antinarcotics reform supporters, but that the legal and social paths of the movements were

completely separate, as the Cyclopedia states that “Through the efforts of temperance reformers, Congress was

induced to pass an antinarcotic bill taking effect March I, 1915.”27

Richard F. Hamm, Shaping the 18th Amendment [Chapel Hill: The University of North Carolina Press,

1995], 135.28 Hamm, 9.29 Hamm, 4.



11

almost entirely.30 The movement against child labor worked to achieve statewide bans

due to its failure to enact federal legislation based on the taxing and commerce power.

The Pure Food and Drugs Act was enacted in 1906 as a regulatory measure over

“adulterated or misbranded or poisonous or deleterious foods, drugs, medicines, and

liquors.”31 Each reform movement of the progressive era carved out a “distinctive

niche of interaction within the law as it then existed,” according to Hamm.32 This was

due to the means used to enact the reform legislation. The different ways in which the

antinarcotics and temperance movements interacted with the American regime as it

was being transformed by the progressive movement accounts for why alcohol

prohibition was preceded by a constitutional amendment and narcotics prohibition

was done by statute alone.

The anti-narcotics movement caused the passage of legislation that would

result in narcotics prohibition to be gradually imposed across the United States. This

legislation, the Harrison Anti-Narcotics Act, was passed in 1914.33 It paved the way

for the 1970 enactment of the Controlled Substances Act, which was the law that was

questioned by Mr. Eddlem, and used to frame this study. As will be seen in the first

section of this paper, Congress passed the Controlled Substances Act as an extension

of the prohibitory policy that had been in place since the progressive era as a result of

the Harrison Anti-Narcotics Act. The modern constitutional defense of the Controlled

30 Caminetti v. United States, 242 U.S. 470 (1917). While the Mann Act was aimed to prevent white

slavery, outlawing the transport of women across state lines for prostitution and human trafficking, this decision

now regulated other “immoral” acts such as debauchery, adultery, and polygamy. This broad intrepretation of

statutory power which would further prostitution, in this case, will resemble the understanding of narcotics

legislation discussed later in this study.31 Federal Food and Drug Act of 1906 (The Wiley Act"), 59-384, 34 STAT. 768 (1906), 21 U.S.C. Sec 1-15

(1934).32

Hamm, 3-4; Kurt Hohenstein, “Just What the Doctor Ordered…” 252. This caused early scholars to try classifying them as autonomous entities, which weakened the notion that there was a singular progressive movement

that connected all the reform movements of the era. Theodore Roosevelt termed what all these movements had in

common as the “gospel of morality” and the “gospel of efficiency.”32 What he meant was that all progressive

reformers were trying to improve the nation (gospel of morality) and had to determine the best practical way to do so

in consideration of their particular reform goal (gospel of efficiency). .33

The possible exception to this may have been the Pure Food and Drug Act of 1906, which will be briefly

addressed but it is important to observe that although this legislation was the first major federal law addressing

narcotics in a certain fashion, the primary purpose of it was not to deter the use of illegal drugs. It’s purpose in

regulating drugs was to ensure that the consumer was aware of what was in medicines.



12

Substances Act, which constitutes the federal government’s current narcotics policy,

will exhibit the reasons why the progressive era must be investigated in order to

determine the reasons why narcotics prohibition exists by statute alone and alcohol

prohibition was added into the Constitution.

In 2005, the Supreme Court ruled that the Controlled Substances Act was a

constitutional exercise of government power in the case of Gonzales v. Raich. It stated

in the ruling that the federal government “ushered in a new era of federal regulation

under the commerce power" at the end of the 19th century and that the Constitution

began to be interpreted so that the federal government would have enough power to

deal with the nation’s changing social and economic circumstances.34 The progressive

movement, which helped initiate the “new era,” instigated a political transformation

that has been described as being, “as radical as the American Revolution.”35 It is this

transformation that must be examined to explain why the federal government felt that

a constitutional amendment was necessary to prohibit alcohol, but not narcotics.

By understanding how the fundamental principles of the progressive

movement were slowly implemented into the political culture of the United States;

how these ideas were the same that provided the theoretical foundation for the

movements to prohibit alcohol and narcotics; and that the two movements used

divergent means in pursuit of their ultimate goals, it can be determined why narcotics

prohibition had a different legal outcome than alcohol prohibition. This will thereby

reveal that the political change in America that was caused by the progressive

movement indicates that both the judge and the juror were rationally justified in their

contrasting views of the constitutionality of narcotics prohibition in effect today.36

34 Roger Pilon, “Chapter 3: The Illegitimate War on Drugs,” After Prohibition: An Adult Approach to Drug

Policies in the 21st Century, [The Cato Institute, Washington D.C., 2000], 7. There is an answer that could have been

given to Eddlem, although the judge could not have given it in the situation, which is that the opinion that the

federal government must have specific constitutional authority before doing something is, for the most part, not

taken seriously anymore. As Pilon has noted, “[T]o listen to recent State of the Union Addresses, one imagines no

problem too personal or too trivial not to be a fit subject for federal attention.”35 Thomas West and William Schambra, "The Progressive Movement and the Transformation of American

Politics," First Pinciples Series, no. 12 [July 2007], 1.36 This does not mean, however, that both were right.



13

DRUGS, ALCOHOL, AND THE

COMMERCE CLAUSE Gonzales v. Raich and the Controlled Substances Act

The Harrison Narcotics Act and the Controlled Substances Act were both

enacted so that the federal government could regulate certain substances whether or

not they directly entered the stream of interstate commerce, or at least whether or not

those substances ever crossed a state’s border. The authority to do this is found in the

modern understanding of the Commerce Clause, which has been adopted by Congress

and, with few exceptions, the judiciary.37 It contends that Congress’s regulating power

is not limited to that which takes place “among the several states,”—commerce that

crosses state lines—but extends over all commerce that may directly or indirectly affect

interstate commerce. This was the interpretation used by the Supreme Court in

deciding the 2005 case of Gonzales v. Raich, which was the case referred to by Judge

Young in his explanation to Mr. Eddlem that the federal government has determined

that it possesses the constitutional power to regulate all narcotics activity within the

United States. In the court’s decision, the majority stated that the Court’s

“understanding of the reach of the Commerce Clause, as well as Congress’ assertion of

authority thereunder, has evolved over time.”38 This statement is of vital importance

to this investigation, and the rest of the court’s decision will illustrate why

37

Carter v. Carter Coal Co., 298 U.S. 238 (1936). In one the of few exceptions, this decision limited federalpower over the commerce of the coal mining industry. The court ruled that Congress was attempting to regulate the

production of coal, through a tax measure, and not affect its commerce. The commerce of coal mining only has the

potential to become part of interstate commerce after being mined, but during its production is only subject to local

authority. The regulation of coal was key to Franklin Roosevelt’s New Deal policies and the decision in this case

triggered FDR to attempt raise the number of justices on the court to 15 attempting to gain the power to appoint

one more justice for each one over 70. His proposal was not enacted and the case stood, its main impact being that

the federal government could not regulate local evils (in this case coal mining) but only national evils, as well as

being one of the few limits the court rules on Congress’ commerce power. See also note 49.38

Gonzales v. Raich (2005).



14

progressivism and the progressive era must be focused on to explain why alcohol and

narcotics prohibition have been given different constitutional treatments.

The defendant in Gonzales v. Raich was arrested for violating the Controlled

Substances Act due to possessing medicinal marijuana, which was legal in his home

state of California. He argued that the Controlled Substances Act was

unconstitutional because the narcotic he possessed had not entered the stream of

interstate commerce, as the marijuana had been grown and used within California’s

borders. Actually, his marijuana was never even a part of any commercial activity—it

had not been bought or sold by him. The court, nonetheless, justified its decision

finding the defendant guilty with the commerce clause maintaining that, “Congress

can regulate purely intrastate activity,” if the activity has an “effect on interstate

commerce.” In this decision, the Supreme Court upheld the constitutionality of the

Controlled Substances Act and the federal policy of drug prohibition, and it admitted

to doing this because of how the commerce clause has been interpreted for the past

century. The interpretation of the commerce clause that was used for one hundred

years after the Constitution’s ratification no longer applied, and this began to be

recognized at the end of the 19th century. It was at that time, according to the court,

that “Congress ‘ushered in a new era of federal regulation under the commerce

power,’” laying the groundwork for the modern understanding of constitutional limits

on federal power.39 The statements made in the Raich decision concerning the shift

that took place around the turn of the 20th century are crucial in order in answering the

question posed to Judge Young by Mr. Eddlem.

As the court states in Raich, the way the Constitution is to be interpreted has

“evolved over time,” and the modern interpretation is drastically different than the

one held more than two centuries ago. The court seems to recognize that there have

been two stages in this evolutionary process that stand out in American political

history. Both stages ushered in a new era, and there have only been two stages in this

evolutionary process that stand out in American political history. The first era began

39 United States v. Lopez (93-1260), 514 U.S. 549 (1995). William Rehnquist opinion of majority.

<http://www.law.cornell.edu/supct/html/93-1260.ZO.html>



15

with the Constitution’s ratification and ended around the turn of the 20th century, and

we are living in the era that succeeded it. As the court makes clear, the main concept

separating the eras is the different understandings of the federal government’s

constitutional limits. Of course, both eras had many disputes over the precise nature

of these limits, but in general the federal government’s power during the first century

of the Republic was limited by the text of the Constitution, while this was not the case

in the 20th century. In his dissent of the Raich decision, Clarence Thomas made an

argument concerning marijuana similar to Mr. Eddlem’s argument regarding cocaine,

saying that, “In the early days of the Republic, it would have been unthinkable that

Congress could prohibit the local cultivation, possession, and consumption of

marijuana.” Given the rationalization for its decision, it is clear that the majority

would not have disagreed with this statement although they undoubtedly disagreed

with Thomas’s view that this should be a significant factor in the decision. To

understand the Constitution in this way, wrote Justice Thomas, meant that Congress’s

power would “have no meaningful limits.”40

In upholding the Controlled Substances Act’s constitutionality in Raich, the

court based its decision on case law that had been established during the “new era” of

constitutional interpretation. It claims this “‘new era’, which now spans more than a

century” began as a reaction “to rapid industrial development and an increasingly

interdependent national economy,” that was emerging in the late 19th century.41

Constitutional scholar Christopher Wolfe has dubbed the period lasting from the

1880’s until the 1930s as the “transitional era,” which describes the way in which the

commerce clause was beginning to be interpreted during those years. This affirms the

court’s statement that the manner in which the Constitution was interpreted in the

early Republic changed by the 20th century, however, Wolfe’s use of the term

“transitional” indicates that the break from the old understanding was not as clean as

40 United States v. Lopez (1995). Clarence Thomas, Dissent

<http://www.law.cornell.edu/supct/html/03-1454.ZD1.html>41 The court identified the enactment of the Interstate Commerce Act in 1887 as the exact starting point of

this era.



16

the court suggested. As he put it, “there is no area in which the break with the

constitutional interpretation…of the traditional era is very sharp.”42 This time period,

the progressive era, must be investigated in order to determine why narcotics can be

prohibited by federal statute while alcohol prohibition required the enactment of a

constitutional amendment five years later. This is not only because the constitutional

theory used to justify the federal government’s current narcotics policy emerged

during that era, as the court recognized in Raich, but also because the federal

government first began regulating narcotics during that time.

The Controlled Substances Act constitutes the nation’s current narcotics policy

but as the court recognized, it was not “Congress’ first attempt to regulate the national

market in drugs;” it was simply the “first campaign” of the “war on drugs” declared

by Nixon.43 The court says that the initial efforts at control were labeling regulations

stipulated by the Food and Drug Act of 1906, but:

Aside from these labeling restrictions, most domestic drug regulations prior to1970 generally came in the guise of revenue laws, with the Department of theTreasury serving as the Federal Government’s primary enforcer. For example,the primary drug control law, before being repealed by the passage of the CSA,was the Harrison Narcotics Act of 1914.44

Until being repealed in 1970 due to the Controlled Substances Act’s passage,the Harrison Act had been the “primary drug control law” in the United States, which

makes it the focus of our question investigation.45 “If it was necessary to amend the

constitution to give congress the power to ban mere possession of a substance

(alcohol) in 1919,” Eddlem asked, “where is the constitutional grant of authority to ban

mere possession of substances classified as narcotics today?”46 The Harrison Narcotics

Act provided the framework for the federal government’s drug control policy until the

42 Christopher Wolfe, The Rise of Modern Judicial Review: From Constitutional Interpretation to Judge-Made Law,

Revised Ed., [Rowman and Littlefield, 1994], 164. Wolfe asserts that the “transitional era” began with the passage of

the 14th Amendment in 1868 because “Certain rights previously left to state protection were brought under the

protection of the federal government.” Ibid., 124.43 Gonzales v. Raich (2005). http://www.law.cornell.edu/supct/html/03-1454.ZO.html 44

Ibid. Emphasis added.45 Gonzales v. Raich (2005). It was not as comprehensive or strict as the Controlled Substances Act, but it

was the first time that the federal government attempted to strictly regulate the possession and sale of narcotics.46 Paraphrased from Eddlem’s quote in introduction, see page 1.



17

more comprehensive Controlled Substances Act replaced it over half a century later.47

The specific regulations laid out by the Controlled Substances Act are stricter and

more comprehensive than those found in the Harrison Act, but both the same

progressive principles can be seen in both.

As is evident by the Supreme Court’s decision in Raich, the Commerce Clause is

currently interpreted in such a way that it restricts all commerce related to narcotics,

even when a particular state loosens its own regulations of them.48 The court

interpreted the Constitution in the exact opposite way during the 19th century in

regards to liquor commerce, which essentially nullified any prohibitory laws that were

passed by an individual state. After a series of rulings that invalidated state laws

regulating or prohibiting liquor, the movement came to believe the ultimate success of

the cause depended on ensuring the eventual adoption of nationwide prohibition. By

using the federal commerce power to nullify state prohibition laws before the 20th

century, the court set the temperance movement on a course towards a constitutional

amendment. Once the “new era of federal regulation” had begun; Congress, as well as

the Supreme Court, aided the temperance movement on its course towards its

ultimate goal.

19th Century Liquor Commerce and the Wilson Bill

Since the Commerce Clause’s effect on drug policy framed the central question

of this investigation, it must be determined how the clause was applied to questions of

earlier substance regulation, in this case alcohol regulation leading up to the

Eighteenth Amendment’s passage. As we have seen, the Supreme Court has ruled the

Controlled Substances Act to be within Congress’s power “to regulate

47Gonzales v. Raich (2005). The Controlled Substances Act was enacted “to consolidate various drug laws on

the books into a comprehensive statute, provide meaningful regulation over legitimate sources of drugs to prevent

diversion into illegal channels, and strengthen law enforcement tools against the traffic in illicit drugs.”48 Vince Reighard, “The Necessary and Proper Clause in Gonzales v. Raich,” paper submitted for

Constitutional Powers, Ashland University, Spring 2007. Reighard says of the court’s ruling, “This conclusion

which suggests the states are like children who need the supervision of the National Mother Government is repugnant to

our federal system of government in which states are given the authority and trust to see their own affairs within

their borders.”



18

commerce…among the several states.” Because it defines the regulatory power of the

federal government, this phrase is traditionally referred to as the Commerce Clause.49

However, it is not the only part of the Constitution that mentions the power to

regulate commerce. Rather than restricting the federal government’s power as the

traditional Commerce Clause does; Article I, section 10 restricts the regulating power

possessed by the states, reading: “No State shall, without the Consent of the Congress,

lay any Imposts or Duties on Imports or Exports, except what may be absolutely

necessary for executing it's inspection Laws.”50 This passage played a major role in the

temperance movement during the 19th century. It was applied in such a way that it

harmed the temperance movement; at least, in the short term. This was a key factor in

making alcohol prohibition a national issue.

Before the Civil War, many state laws restricting the use and/or trade of

alcohol were challenged on constitutional grounds as violating the federal

government’s power to regulate interstate commerce. During this era, however, the

state laws were held up by the U.S. Supreme Court and Chief Justice Taney, who said

that there was “nothing in the constitution of the United States to prevent [a state]

from regulating and restraining the traffic, or prohibiting” alcohol within the borders

of that state.51 After the war, the Supreme Court began to interpret the Constitution in

favor of the liquor trade and against states trying to restrict it. In the same way that

the Commerce Clause is today used to nullify the narcotics policies of individual states

which are more lenient than prescribed by the Controlled Substances Act, in the late

19th century; Article I, section 10 was used to essentially nullify any efforts made by

individual states to prohibit alcohol.

From the point of view of many 19th century temperance reformers, the federal

government’s policy on liquor commerce asserted that an individual’s right to drink

took precedent over a state’s right to regulate its own commerce. Although this

49Article 1, section 8.

50 U.S. Constitution art. I, sec. 10.51 License Cases, 1847. There were six separate opinions upholding the state prohibition laws in

Massachusetts, New Hampshire, and Rhode Island; Cyclopedia of Temperance, Prohibition, and Public Morals, 158.



19

seemingly should have outraged all temperance reformers, and it did for many, many

in the movement used it as an opportunity. To the radical prohibitionists, drinking

was unquestionably evil and therefore completely unacceptable anywhere in the

United States. Allowing it in some states but not others blurred the line between good

and evil—national prohibition was the only acceptable policy.52

In addition to their disdain for states having the power to choose between right

and wrong, reformers were also not too keen on the varying degrees of regulation that

states implemented reform, as not all chose total prohibition, nor were they completely

supportive of local option laws, which were state laws that gave towns the power to

determine alcohol regulations. The nullification of these laws was a victory for the

liquor industry in a sense, but it also caused the temperance movement to raise its

sights. In 1890, immediately after the Supreme Court handed down the ruling in Leisy

v. Hardin, which was the last to nullify a state’s alcohol prohibition, one of the leaders of

the United States Brewers’ Association told leading temperance publication, The Voice,

“it’s a blessing to you in disguise.”53 The journal’s writers and other radical

prohibitionists understood what he meant by this. This ruling helped to fuel a crisis

over the Constitution that had long been brewing over the federal government’s

proper role in controlling the liquor commerce among the states.

The precedent that the Court had used to shape liquor laws throughout most of

the 20th century was found in John Marshall’s ruling of Brown v. Maryland in 1827. The

case concerned a tax that the state of Maryland was levying on importers and

wholesalers of foreign goods. The court unanimously ruled that Maryland was

violating the constitution by doing this, saying that as long as the item remained in its

“original form or package in which it was imported,” it was still federally protected

commerce and beyond the regulating powers of the state, until it had been sold once

inside the state’s borders. This became known as the original package doctrine and it

helped to shape the federal government’s stand on alcohol regulations almost until the

52 Hamm, 36-38.53 Hamm, 69. August Thomann, Director of Publication for USBA, in an interview with the Voice, a New

York based temperance publication.



20

20th century. Another precedent set forth by the Supreme Court known as the

freedom of commerce doctrine was established nearly fifty years after Brown v.

Maryland and was equally important in shaping federal alcohol policy in the midst of

the temperance movement.

The freedom of commerce doctrine was articulated in the 1876 case Welton v.

Missouri, and declared that a state could not impede commerce by imposing taxes or

regulations without having express permission from Congress to do so. The specific

restriction found unconstitutional in Welton was a Missouri law that taxed merchants

who sold goods produced outside of the state. The court cited Brown v. Maryland in its

decision, saying that both of the cases contained a “similar difficulty… in drawing the

line of distinction between the restriction upon the power of the States to lay a duty on

imports, and their acknowledged power to tax persons and property.”54 Also like the

Brown decision, the court took the position in Welton that “it would be premature to

state any rule which would be universal in its application to determine when the

commercial power of the Federal Government over a commodity has ceased.”55

Though being largely based on the original package doctrine established by Marshall

in Brown, the Welton decision rejected the Marshall court’s opinion of the dormant

commerce clause. Congress had not said anything about the Missouri tax being

questioned in Welton, voicing neither disapproval nor support of it. This was a major

departure from Marshall’s decision in Wilson v. Black Bird Creek Marsh Company, which

argued that Congress in deed possessed the power to regulate interstate commerce

and that any state regulation conflicting with this federal power was void, but also

that if there was no federal act that the state was in conflict with, then Congress’s

power to regulate was in its “dormant state,” and any state regulations not affecting

interstate commerce were legitimate.56 Missouri had interpreted Congress’s silence as

54 Welton v. Missouri (1876). Majority opinion delivered by Justice Field.

55 Welton v. Missouri (1876). In the Brown decision, John Marshall used fairly vague language, stating that it

would be “premature” to make a “rule…universal in its apllication.”56 Willson v. Black Bird Creek Marsh Co., 27 U.S. 2 Pet. 245 245 (1829). The Black Bird Creek Marsh

Company was incorporated by an act of the Delaware General Assembly and built a dam across a creek adjacent to

their land. The commerce conducted by way of the dam was in question but the dam was ruled as not affecting



21

approval for the enforcement of their tax. The court stated that Missouri would have

lost this case anyways due to the original package doctrine, but it went a step further

by completely nullifying the tax and declaring it to be unconstitutional.

This introduced America to the freedom of commerce doctrine. If Congress did

not take any action regarding a regulation that a state imposed on imported goods, it

was “equivalent to a declaration that inter-State commerce shall be free and

untrammeled.” The power to regulate interstate commerce was vested in solely the

federal government and if it did not regulate commerce in a particular instance, then

that commerce was to be free from any interference.57 If Congress did not approve of

a specific tax levied by a state on particular imported goods then the Court determined

the state to be infringing on the federal government’s commerce power. This

interpretation of state regulatory power raised questions of how the courts would treat

state prohibition laws, and whether or not they would be a viable option for the

temperance reformers to pursue.

The precedent set by the court in the Welton decision nullified taxes that states

imposed on imported alcohol, which did not necessarily mean that state prohibitory

laws would also be found unconstitutional.58 The freedom of commerce and original

package doctrines applied to the specific situation in the Welton case , but did not

establish a hard and fast rule that clearly distinguished between federal and state

commerce. The court had stated in both the Brown and Welton decisions that they did

not want to establish a “universal rule” that would be applied in all cases. This gave

the liquor industry and law enforcement officials some gray area in which to operate

until the court ruled on how these doctrines would apply to state prohibitory laws.

interstate commerce and the court ruled that the incorporation of the company by Delaware was not “repugnant” to

Congress’ Constitutional authority to regulate commerce between the states because the creek did not flow into orover anything under federal statute. It was therefore a state issue of Delaware and did not fall under federal power

to regulate interstate commerce.57 91 United States Reports (1876) 275. As quoted in Hamm, 61.58

Hamm, 61. Until the Welton ruling nullified it, Michigan had a law “that taxed liquor sellers who

imported their liquor from outside the state and had no place of business in the state.” The courts during the

Reconstruction saw that a Congress that was dormant in commerce did not permit the state to levy taxes on out-of-

state trade, this regulation was still reserved to the federal government. These were viewed as barriers to free

commerce and infringements on the federal commerce power. This raised into question the viability of state

prohibition laws and how they would be interpreted by the court.



22

Until the court addressed this in 1888, liquor traders largely ignored prohibition laws,

using the freedom of commerce and original package doctrines to justify importing

their product into the dry states. The merchants used the railroads to ship liquor into

the dry portions of the United States and they did it successfully.59 Some law

enforcement officials, like the mayor of Atlanta, understood the federal power to

regulate interstate commerce as restricting their ability to enforce certain alcohol

regulations. Other officials did their best to enforce their state’s liquor laws. These

men did not believe that any doctrine superseding a state’s police powers was

legitimate even if the nation’s highest court opined that it was. Up until 1888, these

vigilante-like officials were engaged in a fierce contest with the liquor merchants. The

Supreme Court’s decision in the case Bowman v. Chicago and the Northwestern Rail Road

was handed down in 1888, siding with the liquor men. Although seemingly helping

the alcohol business, it also created a new problem for it by.

“The Supreme Court makes prohibition a national question,” The Voice declared

after the 1888 ruling in Bowman v. Chicago and Northwestern Rail Road. The Bowman

brothers were brewers based in Iowa, which had laws prohibiting anyone from

shipping liquor into the state or within its borders if they did not have the specific

authorization to do so.60 These brothers challenged the constitutionality of this

regulation on the grounds that it violated their ability to participate in “free and

unrestricted” commerce, and the Supreme Court supported their argument. The court

ruled the law unconstitutional despite the fact that they agreed with a major aspect of

Iowa’s argument, opining that the law functioned as an element of a “general design

of protecting the health and morals of its people, and the peace and good order of the

state, against the physical and moral evils resulting from the unrestricted manufacture

and sale…of intoxicating liquors.” However, they ruled that the Iowa law affected

commerce of other states and was a barricade to trade that Commerce did not desire.

59 Ibid., 61. In 1886, the Atlanta Constitution estimated that 20,000 gallons of liquor were imported into

the dry counties of Georgia in one month. Atlanta Constitution October 19, 188660 Jerry Harrington, “Bottled Conflict, Keokuk and the Prohibition Question, 1888-1889,” Annals of Iowa

46 (Spring 1983): 596-600. As quoted in Hamm, 63. Professional druggists were the only ones who whe were

granted authorization.



23

The attorney for the Bowman brothers stated that the effect of this ruling was “to

render nugatory prohibitory law.” Those within the temperance movement agreed

with his assessment and intensified their calls for national action.

The prohibitionists believed that “national prohibition [was] the most direct

road to state prohibition” since the Supreme Court had invalidated state prohibitory

efforts. The federal government’s power to nullify state regulatory laws of alcohol was

reinforced in the aforementioned ruling in the case Leisy v. Hardin, which “flooded the

dry states with liquor.”61 The Bowman decision ensured that a state could not restrict

the importation of liquor across its borders from another state, but it left open the

question concerning a state’s ability to regulate liquor once it had crossed its borders

and had been sold, which definitively made it the state’s commerce.62 The Leisy

decision made it so that state laws prohibiting the sale of alcoholic beverages within its

own borders were invalid if the alcohol had not yet become a part of the state’s

commerce. These laws had been used in efforts to sidestep the court’s ruling in

Bowman by making it illegal to sell any liquor that had been legally imported, but

these laws were now nearly obsolete. The states could now only regulate liquor that

had already been sold within its borders, meaning that it could virtually regulate

nothing at all, because it would have most likely been consumed after the first sale.

The opinion put forth by the majority in Leisy was initially seen as a serious

blow to the temperance cause, but it also provoked it. The court had based its decision

on the original package doctrine, saying that the states could not regulate the sale of

liquor that had not entered the stream of intrastate commerce “without congressional

permission.” This gave them a plan of action. The use of the phrase, “without

congressional permission,” instilled within the temperance movement a belief that

Congress could grant this power to the states and that the court must uphold such

authorization.63 In response to the Leisy decision , Congress enacted the Wilson Act,

61Hamm, 70.

62 Ernst Freund, The Police Power, Public Policy, and Constitutional Rights, [University of Chicago Press, 1904],

http://books.google.com/books?id=6AMKAAAAIAAJ , 217. 63 Hamm, 70.



24

which was the first major piece of federal legislation to somewhat restrict the liquor

traffic in the history of the United States.

The Wilson Act gave states the power to regulate all liquor commerce that took

place within their own borders; whether or not the liquor had been imported, become

part of the state’s commerce, or remained in its original package. Though a victory for

the temperance groups such as the Women’s Christian Temperance Organization and

the Prohibition Party, neither of these organizations made an effort to get this law

passed because it had been authored by James Wilson, a Republican described as “no

temperance fanatic,” who wrote the bill in the attempt to remove 64 Wilson and the

Republican Party proposed this legislation because it feared the possible consequences

of the Leisy ruling, which had been compared to the Dred Scot case by the Union Signal

and evoked similar rhetoric by the Washington Post, which stated that if the ruling

was not reversed by the Court or nullified by an act of Congress, “the battle of states’

rights will have to be fought over again.”65 Most prohibitionists and temperance

organizations did not take any significant action to ensure passage of this bill, nor did

they rejoice when it was ratified into law.

While ensuring that states had the power to regulate liquor, the law also

seemed to lessen the need for federal prohibitory legislation in the view of the

temperance movement. This was exactly the goal of the Republicans who wanted to

confine the prohibition issue to the states and keep it away from the national stage.

While the bill was seemingly written to preserve states’ rights, there were many who

saw it as doing the opposite. The legislation caused questions to be raised about the

extent of federal power as well as the future of traditional state regulatory power. The

progressive movement was in its earliest stages and the federal government’s power

and scope was just beginning to evolve.

Not surprisingly, it was Southerners who protested the loudest over the

Wilson Bill, saying that it only appeared to be a measure in favor of states’ rights but

actually granted the federal government additional power. One congressman stated

64 Hamm, 79.65 Washington Post, June 26, 1890; Union Signal, July 31, 1890. Quoted in Hamm, 73.



25

that, if passed, the Wilson Bill would infer that Congress had the ability to both limit

and expand the powers reserved to the states. Echoing Alexander Hamilton’s

argument of Federalist #84, Texas Democrat David Culberson declared that the

Wilson Bill indicated that Congress “assumes to become a grantor of power,” rather

than a protector of rights.66 Culberson and those like him presented substitute ideas

for restoring the state’s police power to regulate liquor commerce. Those who

supported the bill criticized these alternative proposals as well as “those excellent

gentlemen,” who they claimed, “always find a ‘constitutional’ objection in the way of

right action.”67 Defeating their critics, the Republicans passed the Wilson Act on

August 8th, 1890.

Thirty years before the Eighteenth Amendment’s ratification to prohibit liquor-

related commerce within states, the Supreme Court had interpreted the Constitution

in such a way that it nullified any laws passed by individual states that prohibited or

heavily taxed alcohol imported across their borders. While these rulings initially

appeared to be a major setback for the temperance movement, they also helped ensure

passage of the Wilson Act, which was enacted so that state prohibitory laws could be

enforced. This law set the course for the temperance movement for the next thirty

years, as it was the first time that the federal government had acted to support the

prohibitory policies of the states.68

66 Hamilton, Federalist 84, as quoted in Hamm, 84. "For why declare that things shall not be done which

there is no power to do? Why for instance, should it be said, that the liberty of the press shall not be restrained,

when no power is given by which restrictions may be imposed? I will not contend that such a provision would confer

a regulating power; but it is evident that it would furnish, to men disposed to usurp, a plausible pretence for

claiming that power. They might urge with a semblance of reason, that the constitution ought not to be charged with

the absurdity of providing against the abuse of an authority, which was not given, and that the provision against

restraining the liberty of the press afforded a clear implication, that a power to prescribe proper regulationsconcerning it, was intended to be vested in the national government. This may serve as a specimen of the numerous

handles which would be given to the doctrine of constructive powers, by the indulgence of an injudicious zeal for

bills of rights.”67

Hamm, 85.68 Hamm, 90-91; The text of the Wilson Act reads: Be it enacted by the Senate and House of Representatives of

the United States of America in Congress assembled, that all fermented, distilled, or other intoxicating liquors or liquids

transported into any State, or territory or remaining therein for use, consumption, sale or storage therein, shall upon

arrival in such State or territory be subject to the operation and effect of the laws of such State or territory enacted

and in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors



26

The Wilson Act was enacted during the first few years of the progressive

movement.69 The enactment of the Wilson Act, as well as the Supreme Court’s

unanimous decision upholding it upon a constitutional challenge, indicated that the

progressive movement was beginning to have some effect in America. Congress began

to somewhat involve itself in the regulation of commerce by using its powers to aid

the states in enforcing their laws. The Wilson Act laid the groundwork for the Webb-

Kenyon Act’s passage in 1913, which was followed in 1919 by the enactment of the

Eighteenth Amendment. In between the ratification of those two laws, the

government had passed the Harrison Narcotics Act and was gradually implementing

a policy of narcotics prohibition. All three reflected the principles of progressivism

and were a result of the progressive movement’s success in the early 20th century.70 .

had been produced in such State or territory, and shall not be exempt therefrom by reason of being introduced

therein in original, packages or otherwise.69 The Wilson Act was challenged in the case In Re Rahrer on account of the court’s rulings in Leisy and

Bowman that the state prohibitory laws were unconstitutional, which meant that there were no state laws prohibiting

the sale of alcohol. Rahrer, the defense claimed, had therefore been arrested “under a state law enacted by a

national Congress.” The court dismissed this argument, saying that they had merely ruled that state laws prohibiting

alcohol could only be enforced against “property strictly within the jurisdiction of the state.”70 James H. Timberlake, Prohibition and the Progressive Movement : 1900-1920 [Cambridge, Massachusetts:

Harvard University Press, 1963, 148; Hamm, 122, 263.



27

“THE OLD ORDER CHANGETH”

Progress! Did you ever reflect that that word is almost a new one? No word comes more often or

more naturally to the lips of modern man, as if the thing it stands for were almost synonymous

with life itself, and yet men through many thousand years never talked or thought of progress.

They thought in the other direction. Their stories of heroisms and glory were tales of the past.

The ancestor wore the heavier armor and carried the larger spear. "There were giants in those

days." Now all that has altered. We think of the future, not the past, as the more glorious time

in comparison with which the present is nothing. Progress, development, those are modern

words. The modern idea is to leave the past and press onward to something new.

--Woodrow Wilson

It is often asserted that the world has made a great deal of progress since 1776, that we have had

new thoughts and new experiences which have given us a great advance over the people of that

day, and that we may therefore very well discard their conclusions for something more

modern…If all men are created equal, that is final. If they are endowed with inalienable rights,

that is final. If governments derive their just powers from the consent of the governed, that is

final. No advance, no progress can be made beyond these propositions. If anyone wishes to deny

their truth or their soundness, the only direction in which he can proceed historically is not

forward, but backward toward the time when there was no equality, no rights of the individual,

no rule of the people.

--Calvin Coolidge

Two Concepts of Constitutionalism

In the case earlier discussed, U.S. v. Luisi, the argument between the juror and

the judge signifies more than contrasting opinions concerning whether or not the

federal government has the constitutional authority to prohibit narcotics. They

represent two understandings of the American system of government that are

fundamentally opposed to one another, but somehow manage to coexist. The theory

espoused by Eddlem was akin to the older understanding of American



28

constitutionalism and closely parallels that which was prevalent in the first hundred

years of the American republic. Judge Young’s interpretation of the Constitution was

representative of the modern notion of constitutionalism, which emerged as a result of

the progressive movement in the early 20th century and forever altered the theory and

practice of American government. The progressive understanding of the Constitution

holds that it is a living document and its meaning is not fixed but evolves with the

times. According to Woodrow Wilson, this progressive understanding of

constitutionalism juxtaposes the founder’s understanding, which held that the

Constitution had a fixed meaning and was comparable to a machine, not a living

organism.71 The dissonance between these two constitutional conceptions is ultimately

irreconcilable as both are based on deep-seated premises that go beyond the text of the

Constitution.

Since the Constitution does not specifically enumerate to Congress the power to

prohibit narcotics, and by the fact that alcohol prohibition was preceded by a

constitutional amendment, scholars such as Roger Pilon have called narcotics

prohibition “constitutionally illegitimate”. 72 Nothing could convince men like Eddlem

or Pilon that narcotics prohibition is a legitimate, constitutional exercise of federal

power. The understanding that they have of the Constitution prevents them from

accepting federal narcotics prohibition as a constitutionally justifiable policy. Coming

to any other conclusion would require them to alter the premise of their argument.

The premise of Eddlem’s argument permitted two responses that the judge could have

given: dismiss the case or uphold an unconstitutional law.73 “I suspect [Judge Young]

didn’t make the legal argument,” he later said, “because there was no legal argument

to be made.” His argument was based on the notion that the Constitution imposes

71 Wilson, “The New Freedom,” The Essential Political Writings, 121.72 Pilon, “The Illegitimate War on Drugs,” 23.73

Eddlem indicated that he would have only accepted this sort of answer by writing a response to a

statement that Judge Young made in his memorandum, which read: “The Court spent several minutes attempting to

explain how Congress had the authority to ban drug possession but continued to receive evasive responses.”

Eddlem, of course, fervently disagreed with Young’s recollection of the dispute since he did not feel that he was

given any argument for the law’s legitimacy. http://dangeroustalkblog.blogspot.com/2008/08/judge-for-yourself-

judge-william-g.html



29

strict limits on the federal government’s power. If one accepts this as true, then it is

nearly impossible to dispute Eddlem’s conclusion that federal narcotics prohibition is

unconstitutional.

However, Judge Young’s argument is similar to Eddlem’s in this way; if one

accepts his premise to be true, then his conclusion almost certainly follows and the

federal government can constitutionally prohibit narcotics. The judge’s argument was

based on the notion that the Constitution does not impose strict limits on the federal

government’s power, but rather that the Constitution can be broadly interpreted. In

their quarrel over the Constitution, these two men illustrated the two concepts of

constitutionalism that have shaped, and continue to shape, the theory and practice of

American constitutional government. These two opposing concepts are engaged in a

“battle for America's soul,” which was “initiated over a century ago, [and] is still

raging.”74

The founders wrote the Constitution to establish a government that would

operate in a mechanized manner and according to the self-evident, immutable truths

found in the Declaration of Independence. Wilson said that they, “constructed a

government as they would have constructed an orrery,—to display the laws of nature.

Politics in their thought was a variety of mechanics.” He dismissed this and criticized

it by saying, “The trouble with the theory is that government is not a machine, but a

living thing.” It had to adapt and evolve with the circumstances of modern society.

The Constitution was written on the theory of natural rights, which was why Wilson

and the other progressives found it to be problematic. The idea of “eternal and

immutable rights,” according to Frank Johnson Goodnow, a contemporary of Wilson’s,

“did not permit of their amendment in view of a change in conditions.” The

progressives rejected the founder’s idea of constitutionalism, but did not want to

completely rewrite the Constitution. However, they wanted it to be acknowledged

that, as Wilson said, “Society is a living organism and must obey the laws of life, not of

mechanics; it must develop.” Furthermore, he said:

74 Thomas G. West, and Schambra, William, “The Progressive Movement and the Transformation of

American Politics,” http://www.heritage.org/Research/Thought/fp12.cfm .



30

All that progressives ask or desire is permission—in an era when"development," "evolution," is the scientific word—to interpret the Constitutionaccording to the Darwinian principle; all they ask is recognition of the fact thata nation is a living thing and not a machine.75

The progressives wanted to abandon the fundamental principles that theConstitution was founded on, but this would have to be done gradually. As Wilson

recognized, “you cannot tear up ancient roots and safely plant the tree of liberty in soil

which is not native to it. I believe that the ancient traditions of a people are its ballast;

you cannot make a tabula rasa upon which to write a political program.” The

progressive movement, therefore, had to respect the institutions set up by the

Constitution and go “very slowly and very carefully about the very dangerous task of

altering them.”76 Redefining the notion of government’s purpose that had beenpostulated by the American founders was necessary before they could efficiently

implement the types of reforms that they felt the circumstances required. According

to Frank Johnson Goodnow:

The tremendous changes in political and social conditions due to the adoptionof improved means of transportation and to the establishment of the factorysystem have brought with them problems whose solution seems to beimpossible under the principles of law which were regarded as both axiomatic

and permanently enduring at the end of the eighteenth century. That law waspermeated by the theories of social compact and natural right, which in theirturn were based upon the conception that society was static rather thandynamic or progressive in character.77

The Purpose of Government

The founders believed that the purpose of government was to secure men’s

natural rights of life, liberty, and property. The progressives completely rejected such

a notion of rights. John Dewey mocked the idea, saying, “Natural rights and natural

75 Woodrow Wilson, The New Freedom [New York: New York and Garden City Doubleday, Page & Co.,

1913], 32.76 Wilson, The New Freedom, 30. 77 Frank Johnson Goodnow, Social Reform and the Constitution, [Mcmillan Company, 1911],

http://books.google.com/books?id=zgxJAAAAIAAJ&output=text , 1.



31

liberties exist only in the kingdom of mythological social zoology.”78 Government’s

purpose for the progressives was therefore extraordinarily different from the notion

held by the American founders. As Pestritto has written, “the founders had posited

what they held to be a permanent understanding of just government,” and “the

progressives countered that the ends and scope of government were to be defined

anew in each historical epoch.”79 In regards to the relatively static idea of

constitutional government designed for the purpose of protecting people’s natural

rights, Wilson said:

That was the idea that obtained in Jefferson's time. But we are coming now torealize that life is so complicated that we are not dealing with the oldconditions, and that the law has to step in and create new conditions under

which we may live, the conditions which will make it tolerable for us to live.80

The government that was set up in “Jefferson’s time” had its powers carefully

hemmed in due to the fact that the founders had just thrown off tyranny, Wilson

argued, and the government that they set up following the Revolution and the failure

of the Articles of Confederation only properly fit those circumstances. The founders

“did not attempt to dictate the aims or objects of any generation but their own,” he

said. He implored Americans of the 20th century to disregard the doctrines and

principles of their nation’s founding documents: “we have come to a new age and a

new attitude towards questions of government…new definitions of constitutional

power, new conceptions of legislative object, new schemes of individual and corporate

regulation.”81

The progressive movement caused a gradual transformation not only in what

the purpose of government was understood to be, but also in the function of American

institutions, such as: federalism, checks and balances, and enumerated constitutional

78 John Dewey, Liberalism and Social Action, [Southern Illinois University, 1991], 17.

80 Wilson, The New Freedom, Ch. 181 Wilson, “The Author and Signers of the Declaration of Independence,” Woodrow Wilson: The Essential

Political Writings,109-111.



32

powers. Redefining government’s purpose was only the first step in achieving actual

policy-related reforms. It took time for the progressive theory of government to alter

the structure and practice of constitutional government in America, as Hofstadter

noted; “the reforms of the Progressive Era established a basis and a precedent for

further reforms to be passed when the need for them was felt.”82 What did the

progressives believe government’s purpose was in this new age?

According to Theodore Roosevelt, “The object of government is the welfare of

the people.” In order to ensure the welfare of the people in a representative

government, according to Roosevelt, the nation must instill the “right kind of

character” and the “right type of good citizenship” into the people. The development

of the individual was crucial for society’s development, which is why the progressives

thought that government needed to play a bigger role in the citizen’s life. It must also

have “the kind of law and the kind of administration of the law which will give to

those qualities in the private citizen the best possible chance for development.”83

Although Roosevelt’s political rival, Wilson would have agreed with his opinion here,

“[T]he individual must be assured the best means, the best and fullest opportunities,

for complete self-development: in no other way can society itself gain variety and

strength.”84 For both Wilson and Roosevelt, society was an organization of

individuals who had to cultivate one another, which meant that the citizen’s would

have to direct their actions for the sake of society; not personal desires.85

Richard Hofstadter describes the progressives in this same manner, saying that

they “believed that the people of the country should be stimulated to bring about

social progress.”86 The institutions created by the Constitution were a major obstacle

to the progressives; for they did not provide the means necessary to ensure that every

82 Hofstadter, The Progressive Movement 1900-1915, 14-15.83 Theodore Roosevelt, “The New Nationalism,” American Progressivism: a reader, 222-223.84 Woodrow Wilson, “The State,” 1273, in Woodrow Wilson: The Essential Political Writings, ed. Ronald J.

Pestritto [Lanham, MD: Lexington Books, 2005], 65.85 Ibid., 63-67.86

Hofstadter, The Progressive Movement: 1900-1915, [He also says that the progressive movement was, “an

attempt to develop the moral will, the intellectual insight, and the political and administrative agencies to remedy

the accumulated evils and negligences of a period of industrial growth,” and “an attempt to work out strategy for

orderly social change.”



33

citizen attained “social and industrial justice.”87 Government had to be made more

democratic so that the federal government would be given a public mandate to take

action in pursuit of universal social justice. They declared that the people had to be

given more direct control over the government, and believed that the threats of faction

and majority tyranny were threats no longer. Separating politics and administration

would make such things idle threats.

The state would determine the way in which to stimulate the people to ensure

that “society’s general will” was always being adhered to. This idea—the “doctrine of

directed progress”—was universal throughout the various sects of the progressive

movement.88 According to progressives like Wilson, Goodnow, and Herbert Croly; the

doctrine of directed progress required the adoption of a paradoxical policy. The

government had to be controlled by both the people and bureaucratic experts. For

Wilson, as well as all who characterize themselves as progressives, this created a

fundamental problem that had to be reconciled: What role would public opinion have

in the government? Wilson placed a great deal of importance in public opinion, as we

have seen, and answered this question by saying it would play the role of

“authoritative critic” by expressing the state’s general will. Goodnow explained the

dichotomy like this:

[T]he study of administration is not taken up exclusively with a considerationof the rules of administrative action; but a large part of the time devoted to thisstudy must be given to the subject of administrativeorganization…Administration is the function of execution and administrativeauthorities.89

87Roosevelt, “Who is a Progressive?” American Progressivism: A Reader, 40.

88

Dennis J. Mahoney, Politics and Progress [Lanham: Lexington Books, 2004], 55. Within the progressivemovement were many disagreements over some of the most important political questions of the era. This should

not be misconstrued to mean that there was not a common ideology shared by all progressives. Specific policy

proposals offered by progressives may have differed, as they often did, but they were all designed for achieving the

same end. Ronald Pestritto and William Atto say that the disputes were “differences over particular means, not over

fundamental ideas of what government is or ought to be, and certainly not over the need with which all progressives

identified to revolutionize both the theory and practice of American government.” Ronald Pestritto and William

Atto, American Progressivism: a reader [Lanham, Lexington Books, 2008], 2.89 Goodnow, Politics and Administration: A Study in Government, [New York, Russell & Russell, 1967], 18.

Quoted in Mahoney, 139.



34

These progressive political ideas are manifest in the administrative state of

America today. According to Thomas West, the attempt to separate politics and

administration that has occurred in America over the last century “renders it

impossible for the government to act consistently with the rule of law, as opposed to

ad hoc rule making,” which is the way that government agencies operate. The

progressives saw the rule of law as outdated, Goodnow said, “The force of the

principal active rule of law is also being weakened. With the development of the more

complex conditions characteristic of modern life, it has been felt imperitive [sic] to

depart at any rate from the strict application of the principle.”90

Accountable only to Congress’s budgetary powers, administrative agencies

carry out a wide number of tasks that the federal government only began taking

responsibility for in the last century. Pestritto notes that, “while the actual growth of

the administrative state can be traced, for the most part, to the New Deal (and

subsequent outgrowths of the New Deal like the Great Society), the New Deal merely

served as the occasion for implementing the ideas of America's Progressives.”91 There

were, however, agencies that were established prior to the New Deal as a result of the

government’s early attempts to prohibit narcotics and alcohol. “Prohibition was in

many ways the apotheosis of the administrative state,” claims Robert Post, “for it

deployed a vast governmental apparatus to control intimate details of personal

consumption.”92 The ideas that progressives like Goodnow and Wilson succeeded in

implementing in the United States are still being practiced through these agencies.

How and why were these ideas put into practice? An examination of the temperance

movement will reveal the answer to this question.

90 Ibid, quoted in Mahoney, Politics and Progress, 94.91

Pestritto, The Birth of the Administrative State: Where it Came From and What it Means for Limited

Government http://www.heritage.org/Research/Thought/fp16.cfm92 Robert Post, “Federalism, Positivism, and the Emergence of the American Administrative State:

Prohibition in the Taft Court Era,” William and Mary Law Review, [Vol. 48, No. 1, 2006], 18.



35

THE PRE-PROGRESSIVE TEMPERANCE

MOVEMENT

A person does not drink to get drunk. A person drinks to have fun.

–Richard Nixon

America’s Oldest Reform Movement

Although sometimes thought of as a conservative initiative, prohibition was

written into the Constitution as a part of the progressive reform agenda.93 The

progressive movement did not begin in America until the late 19th century but was the

most important factor in the Eighteenth Amendment’s passage. However, as David

Kyvig has noted, if the temperance movement had not been successful before the

progressive movement “it is hard to imagine” that national prohibition would have

ever been adopted as a federal policy.94 “The Eighteenth Amendment,” he contends

“was the product of a century-long temperance crusade, the early-twentieth-century

progressive environment, and a temporary spirit of wartime sacrifice.”95 Investigating

the entire history of temperance in America is not necessary for our purposes, but the

history of the movement during the 19th century is vital, as it was during this time that

it became socially and politically relevant.

It can be argued that there were three distinct phases of the temperance

movement in America through the progressive era.98 There had been an organized

movement for temperance reform in the since the early 19th century but nationwide

93 Ibid, 2. William Anderson notes that “most modern Progressives are not particularly proud of this

‘achievement.’” Taken from "The Progressive Era, Part 1: The Myth and the Reality," The Future of Freedom

Foundation, June 9, 2006, www.fff.org/freedom/Fd0602.asp (accessed August 24, 2008).94

David Kyvig, Repealing National Prohibition [University of Chicago Press, 1979], Ch. 1.95 Ibid. He adds that “Various historians of the reform have tended to emphasize one or another of these

factors. However, it is hard to imagine national prohibition being adopted without all three interacting.”98 Sinclair,



36

prohibition was not realized until it became a part of the broader political agenda of

the progressive movement in the early 20th century. The movement needed time to

gain some political momentum and patience for the proper circumstances to arise to

be successful. It was able to take advantage of the social and political circumstances in

the first twenty-years of the 20th century because of the momentum it been

accumulating since the nation’s founding.

The American Temperance Society was founded in Boston in 1826 and it had

2,200 chapters within five years across the nation.99 Alexis de Tocqueville wrote that

such organizations had more than 270,000 members when he visited the United States,

and that they were responsible for decreasing the amount of liquor consumed in

Pennsylvania alone by 500,000 gallons.100 Many similar organizations soon followed

During the 1850’s, thirteen states or territories had enacted laws prohibiting the

manufacture or sale of alcohol.101 The first call by one of these organizations to write

prohibition into the Constitution came in 1856 by the Sons of Temperance. A

resolution to adopt alcohol prohibition as a national policy was presented in the U.S.

House of Representatives in 1876 for the first time.102

Alcoholic has been a part of America since the Europeans discovered it, and the

idea of temperance has been around just as long. Liquor was generally considered to

be nutritious in the era following the American Revolution, and it definitely was not

considered to be a social ill then like it was a century and a quarter later.103 However,

99 The Oxford Guide to United States History, Paul S. Boyer, ed., [Cambridge,Oxford University Press, 2001],

772.100

Alexis de Tocqueville, Democracy in America, translator and ed. Harvey Mansfield [Chicago, University of

Chicago Press, 2000], 232 fn 1.101

Whitebread, 991; Cherrington, 135. These were the Oregon Territory, Maine, Delaware, New

Hampshire, Michigan, Indiana, Massachusetts, Illinois, New York, Vermont, and Ohio. Many of the statutes were vetoed, repealed, or found to be unconstitutional by the supreme courts of the states soon after passage.102 Ernest H. Cherrington, The Evolution of Prohibition in the United States: A Chronological History of the

Liquor Problem and the Temperance Reform in the United States from the Earliest Settlements to the Consumation of National

Prohibition [Montclair, Patterson Smith, 1969], 317. The Representative who did this was Henry William Blair of

New Hampshire, who introduced another prohibition bill as a Senator in 1885. The 1876 bill only would have

applied to distilled liquors and would not have taken effect until 1900; Asbury, 90.103 David Musto, Drugs in America: A Documentary History [New York: NYU Press, 2002], 3; W.J. Rorabaugh,

The Alcoholic Republic, [ ], 25. Rorabaugh says, “At the beginning of the eighteenth century, tradition taught, and

Americans, like Englishman and Europeans, universally believed, that rum, gin, and brandy were nutritous and



37

there were some who foreshadowed the temperance movement, including Benjamin

Rush, a signer of the Declaration of Independence. One of the first prominent political

figures to argue for laws regulating alcohol, he argued for “general and state

governments” to enact legislation limiting the number of taverns permitted to operate,

imposing heavy duties on “ardent spirits”, and inflicting “a mark of disgrace, or

temporary abridgment of some civil right, upon every man convicted of drunkenness.”

He also said that when taken moderately, liquor was “generally innocent, and often

[had] a friendly influence upon health and life,” but if not done in moderation,

drinking caused “poverty and misery, crimes and infamy, diseases and death.”104

According to him, these were the societal effects of an individual’s excessive

indulgence. He based his argument primarily on scientific evidence, telling of the

dangers alcohol posed to the human body and as a result, society. Rush and his

appeal to science were not the causes of the American temperance movement’s rise in

19th century.105

As will be seen, many factors influenced the movement, but religion brought it

to the forefront of American politics at the turn of the century. The temperance

reformers founded their own political party in 1869, although they did not consider it

to be a traditional political party since it was only concerned with one issue.

Temperance advocate and historian of the movement, Ernest Cherrington said of it, “It

was not a party; it was a crusade.”106 The Prohibition Party’s establishment was the

first major step taken by the temperance movement on its way to becoming a political

force in the 20th century.

healthful. Distilled spirits were viewed as foods that supplemented limited and monotonous diets, as medications

that could cure colds, fevers, snakebites, frosted toes, and broken legs.”104

Benjamin Rush, “An Inquiry into the Effects of Ardent Spirits upon the Human Body and Mind,”1785. Musto, 27-31. Ardent spirits are meant to include distilled liquor only. He argued that beer and wine were

acceptable to imbibe.105 Timberlake, 39. Timberlake opines that science would eventually have a bigger role than religion in the

temperance movement with the onset of the 20th century.106 Cherrington, 165. State Prohibition parties were first organized in 1837 in Michigan and Illionois,

respectively, but neither of them nominated a ticket. 1869 saw the first state Prohibition party to nominate a ticket

when the party had its convention in Mansfield, Ohio during July. The national party was also formed in 1869 and

the first year it nominated a national ticket was in 1872 when John Black ran as the first presidential candidate for

the Prohibition party.



38

Temperance, Religion, and Liberty

Many denominations of the Protestant Church had already spent decades

fighting for temperance reform by the time the progressive movement had emerged in

America in the last two decades of the 20th

century. The Methodist, the Presbyterian,and the Baptist churches were the major religious sects that supported prohibition

efforts. The Protestant, Episcopal, and Lutheran churches are examples of Protestant

denominations that did not aid the temperance campaign. The movement did not

receive support from the Roman Catholic Church either.107 Many of these evangelicals

believed that intemperance degraded men’s souls so greatly that it was nearly

impossible for the intemperate to achieve salvation. As the Reverend Lyman Beecher

declared, “For drunkards no more than murderers shall enter the kingdom of God.”108

Beecher made this statement during a religious revival in the early nineteenth century

known as the Second Great Awakening, which occurred in the midst of the country’s

expansion into the West, and the industrialization of the East.

The temperance and religious movements of the early nineteenth century

coincided with the larger nationwide reform movements resulting from America’s

industrialization and expansion. The rapid growth of the nation was essential to the

strength of first temperance movement. Beecher and other preachers gave sermonswarning of the dangerous consequences widespread intemperance would have an

ever-expanding nation. If those who succumbed to the temptation of liquor were not

saved, the nation would suffer as a result.109 “Intemperance is a national sin,”

admonished Beecher, “carrying destruction from the centre to every extremity of the

empire, and calling upon the nation to array itself, en masse, against it.”110 The

107

Timberlake, 5. Sinclair, 64. Timberlake claims that these denominations of Christianity did not join inthe temperance cause because of “their greater emphasis on liturgy, confession, creed, and sacraments, rather than

traumatic conversion, as the means of grace and salvation.” They therefore, “tended to frown upon revivalism and

were far more lenient in matters of private morality, such as drinking.” Sinclair states that other religious groups

that supported prohibition were the Disciples of Christ, Christian Scientists, and the Mormons.108 Lyman Beecher, Six Sermons on the Nature, Occasions, Signs, Evils, and Remedy of Intemperance, [Boston: T.R.

Marvin, 1827), 36. Taken from http://books.google.com/books?id=H0FoK5dw-

hoC&printsec=frontcover&dq=lyman+beecher+six+sermons&lr=#PPA1,M1 109 Timberlake, 13-15.110 Beecher, 61.



39

temperance movement of the pre-Civil War generation began to lose its momentum

when the South began to secede, as this event was apparently seen as posing a bigger

risk to the Union than drunkenness. Thus ended the first wave of the American

temperance movement

Sobriety enabled men to accept the Gospel and strengthened their private moral

character, but the religious argument was about much more than just the individual’s

use of alcohol. Such was the case during the temperance movement stifled by the

Civil War, and it was the same during Reconstruction when the movement began

regaining its momentum. Protestantism tried to initiate a religious revival resembling

the one in the early nineteenth century with their renewed temperance efforts in post-

war America. They believed that temperance was a prerequisite for such a revival to

succeed, and although the results of their religious efforts did not cause a broad

revival across the country as it did during the Great Awakening, the church’s spirit of

social reform began to spread throughout the different sects of Christianity.111 Many

religious leaders saw intemperance as the cause of poverty, which in turn caused

crime and suffering. Some argued the reverse, blaming poverty for intemperance.112

Whether it was intemperance that caused poverty or the opposite is of little

consequence here. The two were linked in the minds of the religious reformers who

placed the ultimate blame for both on American capitalism. This caused them to

preach a new gospel, the “Social Gospel,” which stressed social improvement

alongside of individual salvation since the two went hand in hand. This became a

major facet of the Progressive movement in the early 20th century, but before the

progressives absorbed the temperance movement, it had to learn how to exercise the

political power it possessed.

Walter Rauschenbusch was the most influential preacher of social Christianity,

which called for American capitalism to be brought in line with the ethical teachings

111 Timberlake, 18. Sinclair, 64. Sinclair says that the main churches who supported prohibition were the

“Methodist, the Baptist, the Presbytarian, and the Congregational churches, aided by the smaller disciples of Christ,

Christian Science, and the Mormon religious groups.”112 Timberlake, 16, 24, 199 (particularly in the south regarding blacks). They especially placed blame on the

liquor industry.



40

of Jesus, and he used the liquor trade to illustrate America’s need for widespread

reform.113 “Alcohol is a spirit born of hell,” he said, “but he is merely a satellite and

tool of a far greater devil, and that is Mammon.”114 The liquor industry was too

greedy and not concerned with the wellbeing of the consumer. As long as alcohol was

generating profits then it would be sold to anyone who wanted to buy it, even those

who should not have bought it. Businesses cared about their profits more than they

cared about the overall health of the society. The more people that fell into the pit of

alcoholism, the better off the liquor business was. For the temperance reformer in

America, wealth was achieved through “the poisoning of the poor; but it must be done

on large scale or it doesn’t pay.” This was typical business practice in early-20th

century America according to Rauschenbusch, which demonstrated that businesses

should not be conducted for the sake of profit but should instead be concerned with

the welfare of mankind.115

Many people at the time, including those who referred to themselves as

Socialists, equated socialism with atheism, but he argues that social Christianity is

merely socialism that is found through the teachings of Christ, “which makes the

Reign of God on earth its object.”116 By itself, achieving socialism in America would

require a multitude of governmental reforms, but to put socialism in place to achieve

such a lofty goal would require a complete political overhaul. This desire to so greatly

improve society that suffering and poverty were eliminated was the inspiration for

both the prohibitionists and for progressivism. The emerging idea of social

Christianity, that America’s “moral and legal theories about the rights of the

individual in using the resources of nature and in operating his tools to get wealth, are

based on the assumption of a sparse population and of simple methods of production

113Walter Rauschenbusch, Christianizing the Social Order, [New York, The Macmillan Company, 1914] 209,

http://books.google.com/books?id=4nAuAAAAYAAJ ; Other preachers of social Christianity and temperance were

Josiah Strong, W.D.P. Bliss, and Charles Stelzle; Timberlake, 26-29.114 Rauschenbusch, 209. In the Bible, Mammon is wealth or greed, and often personified as a deity.115 Rauschenbusch, 209.116 Rauschenbusch, 109, 117.



41

which we have largely outgrown.”117 As one advocate of the social gospel wrote upon

ratification of the Eighteenth Amendment:

“Personal Liberty” is at last an uncrowned, dethroned king, with no one to do

him reverence. The social consciousness is so far developed, and is becomingso autocratic, that institutions and governments must give heed to its mandateand shape their life accordingly. We are no longer frightened by that ancientbogy—“paternalism in government.” We affirm boldly, it is the business ofgovernment to be just that—paternal.118

In the minds of the prohibitionists, the right to liberty did not include the right

to drink and be a detriment to societal progress.119 This concept of freedom, that one

was only free to do whatever was best for society as a whole, was the same as the

progressive concept, which Wilson aptly named “The New Freedom.” In many ways,

the progressive concept of liberty was predated by the prohibitionist concept. For the

prohibitionists of the 19th century and the progressives of the 20th, the old

understanding of liberty that deemed a citizen could basically do anything he wanted

so long as he was not depriving any others of their liberty, life, or property was too

extreme, permitting too many to suffer. The American founders understanding of

liberty was too broad and needed to be restricted if society was to improve. The

government needed to be expanded and empowered to ensure this. The early

temperance reformers did not necessarily have the same view of government’s

purpose as the progressive’s, but they shared the fundamental idea of how the

government should restrict liberty so that progress was not impeded. This “new

freedom” justified many progressive actions, including granting the federal

government power to regulate substances formerly considered to be matters of the

individual states, which resulted in the prohibition of both alcohol and narcotics.

In 1842, Abraham Lincoln gave a speech to the Springfield Washington

Temperance Society, in which he called the “temperance revolution” a “noble ally…to

the cause of political freedom.” The speech was given at a time when religion,

117 Rauschenbusch, 421.118 Gospel of the Kingdom, I:106, quoted in Timberlake, 27.119 Hamm, 37.



42

particularly Protestantism, was driving the temperance movement. It was only in the

previous decade that the movement had become politically important on the state and

local level, and while the bulk of his speech was devoted to the political methods used

by the Washingtonians and like reformers, he concluded by making a comparison that

would be reused by reformers for generations.120 He linked the abuse of alcohol with

slavery and called for the eradication of both, saying:

And when the victory shall be complete—when there shall be neither a slavenor a drunkard on the earth—how proud the title of that Land, which may trulyclaim to be the birthplace and the cradle of both these revolutions, that shallhave ended in victory. How nobly distinguished that People, who shall haveplanted, and nurtured to maturity, both the political and moral freedom of theirspecies.121

The comparison that Lincoln used in this speech became a crucial part of the

temperance argument following the Civil War, and continued to be into the 20th

century.122 This link between alcoholism and slavery was picked up by the

progressive movement thirty-years later and helped them redefine the traditional idea

of liberty in America. For obvious reasons, Lincoln did not see what the temperance

movement became after the war ended, but he was very familiar with the people who

would lead it.

The strongest proponents of the temperance cause post-Civil War were the

abolitionists who ferociously fought against the enslavement of African Americans

prior to the passage of the Thirteenth Amendment in 1865. After the Thirteenth

Amendment was ratified, Gerritt Smith, who twice ran for President on the

Abolitionist ticket and was friends with John Brown, stated:

Our involuntary slaves are set free, but our millions of voluntary slaves stillclang their chains. The lot of a literal slave, of him whom others have enslaved,

120 Lucas E. Morel, “Lincoln Among the Reformers: Tempering the Temperance Movement, Journal of the

Abraham Lincoln Association Vol. 20, Issue 1, 3-4.121 Abraham Lincoln, “Temperance Address Delivered Before The Springfield Washington Temperance

Society,” February 22, 1842; Abraham Lincoln: His Speeches and Writings, 140.122 Morel, “Lincoln Among the Reformers: Tempering the Temperance Movement,” 32-34.



43

is indeed a hard one; nevertheless it is a paradise with the lot of him who hasenslaved himself—especially of him who has enslaved himself to alcohol.123

The temperance cause provided the abolitionists an opportunity to continue

fighting against slavery since many of these reformers viewed alcohol as being a

different means to the same ends. Although no war broke out over the alcohol issue,

these temperance advocates fought with fervor similar to that of their fight against

slavery. As they did in the abolitionist movement, women played a major role in the

struggle for temperance reform.

“The Great Legal Fortress of Intemperance”

In 1888, at its national convention, the Women’s Christian Temperance

Union ⎯ founded in 1873 in Evanston, Illinois ⎯ adopted a resolution to support a

federal prohibition law. To this organization, it was “evident that all ultimately

effective action for suppression of the liquor traffic must come through national

legislation.”124 The Prohibition Party’s nomination for president in 1888, Clinton B.

Fisk, expressed the same feeling in saying that prohibition “can never be made of local

and state limitations again.”

Congressman Henry W. Blair of New Hampshire had promoted this opinion in

the political arena soon after the Civil War ended a decade before. The opinion Blair

had of liquor was akin to the opinion that abolitionists like William Garrison had of

slavery before the Civil War. Garrison and his followers held that the Constitution

was "a Covenant with Death, an Agreement with Hell" because it permitted slavery to

exist.125 Though not being so extreme, Blair argued that since the Constitution did not

give Congress the ability to outlaw all liquor traffic in the United States, it was a

corrupt document because states that had passed prohibitory laws would always be

contaminated by the states that had not. In order to prevent such contamination from

happening, the Constitution had to be amended to grant the federal government the

123Quoted in Sinclair, 86.

124 Hamm, 65.125 William Lloyd Garrison, “A Covenant with Death, and the Agreement with Hell,” The Liberator,

October 23, 1857.



44

power to enact prohibition throughout the nation. As it prevented Congress from

having such an extensive power, Blair said the Constitution was “the great legal

fortress of intemperance in this country.”126

It was the particular conception of law, what historian Richard Hamm describes

as “the mosaic ideal,” that helped to revive the temperance movement in America

after the Civil War. Their understanding of the law stemmed directly from their

religious values, which meant that the law should be used in such a way that it

promoted morality and criminalized evil. They believed that this idea of law was

rooted in nature and refined by God’s commandments so that it could be emulated in

human law.127 Those who favored prohibition for religious reasons believed that the

law should be a statement of moral truth, but this is not what made their views

extreme. It was the specifics of their moral truth, which conflicted with the American

doctrine of individual rights, that some viewed as being too radical. As Hamm says,

the “prohibitionists saw law as a means to extend morality, by which they meant their

morality as they saw it.”128 In order to foster the society desired by the prohibitionists,

government power would have to be utilized. If this were to happen and

government’s purpose became the advancement of society’s morality and general

welfare, then individual liberties would have to be of secondary concern, or not of

concern at all.

In 1892 at the WCTU’s annual convention, Frances Willard publicly stated the

prohibitionist’s rejection of individual rights. The concept of rights that America had

had been founded on, “life, liberty and the pursuit of happiness,” Willard claimed,

“were set up in the camp of the savage.” Understanding rights in this way was merely

the first stage in the evolutionary process of rights.” There were two more stages that

needed to be gone through for society to reach its moral apex. The second stage was

when government would legislate on all moral issues by declaring, “thou and thou

126Henry William Blair, The Temperance Movement, Or, The Conflict Between Man and Alcohol, [W.E. Smythe,

1888], 388.127 Richard Hamm, 34.128 Richard Hamm, 36.



45

shalt not” over ever matter.129 The third stage was one in which “government by law

is exchanged for the mightiest of all government—public sentiment. The moral tone of

society declared by resistless common consent what the law” had previously

prohibited and punished.130

When the constitution of the Women’s Christian Temperance Union was

written, it was thought of as “a new Declaration of Independence—creating a higher

level of thought for American manhood.”131 “We believe in the coming of His

Kingdom whose service is perfect freedom,” declared one reformer, “because His laws,

written in our members as well as in nature and in grace, are perfect, converting the

soul.”132 To counter those who asserted the individual’s right to drink, the temperance

reformers began to publicly target those who sold alcohol and not those who drank it,

but the idea that liberty meant society should be free of those who were enslaved by

alcohol—an underlying theme of the entire temperance movement. As one leader of

the WCTU declared:

The slavery of alcohol and other narcotics is the worst of human bondagesbecause it tends to become a willing bondage that enslaves the soul as well asthe body of its victim, while it mortgages his children to the enslaver. It mustbe overthrown if our race is to move on, through generation after generation,up the heights of its utmost possibilities. The popular use of alcohol, usually

begun in ignorance of its seductive power, is a menace to that capacity of self-government without which a republic must ultimately perish.133

The temperance movement had some successes from 1869 to 1893, but

significant legislative action was not achieved until after this period. The Prohibition

Party was established in 1869 and, as Cherrington has noted, not a political party in

the common understanding of the term. Unlike most political parties that “champion

many causes, selected with a view to those most likely to attract the largest number of

129 Hamm, 43.130

Quoted in Hamm, 43. Woodrow Wilson had a view of the state and the state’s power that was

comparable to Willard’s; Pestritto, Woodrow Wilson and the Roots of Modern Liberalism, 78-79, 83.131

Elizabeth Putnam Gordon, Women Torch-Bearers: The Story of the Women’s Christian Temperance Movement

[Evanston: National Women’s Christian Temperance Movement Union Publishing House, 1924], 15.132 Gordon, Women Torch-Bearers: The Story of the Women’s Christian Temperance Movement , 16.133 Gordon, Speech given by Mary Hanchett Hunt, 43.



46

voters,” the Prohibition Party was established to advocate a single issue without

considering the political consequences that could result.134 However, this dedication

that defined the party did not revolutionize the political ability of the temperance

cause. It was not political enough to produce serious change, as Cherrington says, “Its

leaders never knew the meaning of policy, prudence, or diplomacy.”135 Nevertheless,

the party did help the temperance movement forge a path for later political activity

carried out by the Anti-Saloon League, which was established in 1895. Until then, the

Prohibition Party would be assisted by a number of organizations, but there was only

one that arguably matched the party’s contribution to the temperance cause. The

Women’s Christian Temperance Union would pave the way for the movement’s

political triumphs in the 20th century and strengthen the temperance movement’s link

with the progressive movement.

Sinclair argues that there were three distinct reform movements at the

beginning of the twentieth century, rather than just the progressive movement and its

subordinates. The three were progressivism, temperance, and women’s suffrage.”136

Each of them had similar roots and initially shared the same goals, but eventually

dissolved their union and deserted each other. He calls them the “Trinity of Reform,”

and says that although they ultimately separated from one another, none of them

would have accomplished much without the success of the others. Whether or not

these three movements ever completely “abandoned each other,” as Sinclair asserts,

his judgment that each movement’s success depended on the success of the others is

indisputable. This was especially true from the last half of the nineteenth century until

1920 and is exemplified perfectly by the Woman’s Christian Temperance Union, which

fought for all the reforms sought by the “Trinity.”

The WCTU was founded in 1874, four years after the Prohibition Party, and

likewise established in Ohio.137 The contributions of the WCTU to the overall

134 Cherrington, 169.135

Ibid.136 Sinclair, 91.137 Elizabeth Putnam Gordon, Women Torch-Bearers: The Story of the Women’s Christian Temperance Movement ,

[National Women’s Christian Temperance Movement Union Publishing House, Evanston, Illinois, 1924], 15.



47

temperance cause cannot be overstated. It focused on temperance reform efforts, but

also played a crucial role in the fight for women’s voting rights. The WCTU pioneered

the movement for equal suffrage that would come to be vitally important in local and

state prohibition campaigns, and ultimately in the national campaign. It also ensured

the passage of many local laws banning saloon operations, which meant that the

women had to fight not only the saloons, but also the “corrupt politicians.”138

In Women Torch-Bearers, the self-published history of the WCTU, a story is

told about such a fight over a local option law.139 After a local prohibitory resolution

was presented in a town meeting, a man rose to speak against it and allegedly ended

the meeting by shouting, “We shall win! We have the drinking men on our side, we

have the saloons on our side, and we have the money on our side—and money is a

power and don’t you forget it.” Another meeting was held on the next night and the

President of the WCTU replied to that statement by declaring, “We shall win! We have

the women on our side, we have the churches on our side, and we have God on our

side—and God is a power and don’t you forget it!”140 The Christian women of the

WCTU stood on moral ground not only to fight against the saloons, but also against

“impurity and corruption in politics by bringing to bear an organized public sentiment

that compelled action.”141 The accomplishments in the late-19th century of this

women’s organization laid the foundation for the temperance movement’s success in

the early-20th century, but they did not come in the form of legal restrictions on liquor.

Cherrington, 170-171. Eliza Thompson, “Hillsboro Crusade Sketches,” in Drugs in America, 87-94. The

organization’s establishment in 1874 was the culmination of, what is widely referred to as, the Woman’s Crusade

that began in 1873. The Woman’s Crusade, Cherrington says, is “generally recognized” as also beginning in Ohio.

A lecture given by Dr. Dioclesian Lewis in Hillsboro, Ohio on December 24, 1873 is what began the campaign, but

Cherrington notes that Dr. Lewis made a similar speech in Fredonia, New York on December 14th that prompted

hundreds of women to begin a “praying crusade” outside of the town’s saloons. A similar one occurred in

Jamestown, New York on December 17

th

, but what differentiated the Hillsboro “crusades” from the two in New York was that it had remarkable success.138 Politicians were viewed as being in the pockets of the liquor industry throughout the Temperence

Movement.139

Timberlake, 145-146. According to Timberlake, “There were two main kinds of local option law: special

statutes applying to certain designated localities only, and general statutes applicable to all units within a state.”140

Elizabeth Putnam Gordon, Women Torch-Bearers: The Story of the Women’s Christian Temperance

Movement, [National Women’s Christian Temperance Movement Union Publishing House, Evanston, Illinois,

1924], 114. Frances Willard was WCTU president from 1879 until her death in 1898.141 Cherrington, 175.



48

The problem created by the “great legal fortress of intemperance,” Congressman Blair

said, could not be amended “unless public opinion is pronounced against it.” “Law,”

he said, “ is the inevitable effect of moral suasion whenever moral suasion is

effective.”142

The WCTU’s “Fight for a Clear Brain”

Although founded on religion and Puritan notions of morality, the WCTU’s

most important contribution to the temperance movement was done through

“scientific” education. Appointed to lead the Committee of Scientific Temperance

Instruction in 1879, Mary Hanchett Hunt led the campaign to reform the curriculum of

American public schools. In 1882, the WCTU helped ensure that Vermont was the first

state to enact legislation requiring public schools to instruct students about the

“physiological effects of alcohol.” By 1888, the WCTU had pushed legislation through

twenty-eight state legislatures that required scientific temperance to be taught in all

state-run schools, and by the turn of the century every state had similar legislation.143

In 1886, the federal government also began requiring scientific temperance education

in federally controlled schools such as those in Washington D.C., military academies

like West Point and Annapolis, and schools for blacks and Native Americans.144 The

women needed the voting majority to win their fight but since they did not have it yet,

they had to teach the voting majority of the next generation.

The WCTU believed that educating future generations to the truth about

alcohol’s danger was the key for eventually implementing widespread prohibition.

People began using alcohol without possessing the knowledge of its addictive nature.

If children learned about the dangers it posed to the individual, and in turn to society,

then they would be able to evade it and remain sober. As Mary Hunt said:

142 Blair, 377.143

“Scientific Temperance Instruction in Public Schools,” Letter by Frances E. Willard, in Musto, Drugs in

America, 104-107; Cherrington, 175; Elizabeth Putnam Gordon, 42-43, 294.144 Elizabeth Putnam Gordon, 42-43; “Scientific Temperance Instruction in Public Schools,” Letter by

Frances E. Willard, in Musto, Drugs in America, 104-107; Cherrington, 175.



49

If we want the saloon closed, we must teach the majority, the law-makingpower, that alcohol is by nature and outlaw that should be banished fromhuman habits and traffic. Compulsory scientific temperance instruction in thepublic schools is one method that reaches the coming majorities. All history isthe aggressive advance of the future upon the past, the field of collision beingthe present. Coming generations with clear brains and untainted blood areaggressively advancing on the alcoholic past of our inheritance.145

Spreading the truth to the masses through the use of modern science would finally

destroy the old beliefs about alcohol and show it for the evil it really was. According

to the WCTU, this was irrefutably proven by modern science, and any old beliefs

about it would succumb because “history has shown that in the ultimate contest truth

is the strongest of all forces.”146 While they may have lacked truth in its purest form,

the force that they exerted was very strong.The textbooks placed in schools by the WCTU were not completely devoid of

truth, but neither were they jam-packed with unquestionable scientific evidence. In

fact, much of their scientific evidence would be refuted within two decades, and

disproven by those who even supported the temperance and temperance education.147

One of the textbooks supported by the WCTU included warnings that drinking

alcohol “makes more people poor and unhappy and wicked than any other cause.”

The same book asserted that insanity, family discord, murders, pauperism, and misery

are some of the “results of the action of alcohol on the nervous system.” Neither of

these statements could have been definitively proven false, and the book accurately

stated that alcohol often caused liver diseases, but at the same time it claimed that

alcohol was a “fiery stimulant,” when it had already been determined to be a

depressant.148

145 Gordon, speech given by Mary Hanchett Hunt, 43.146 Gordon, Speech given by Mary Hanchett Hunt, 44.147

Timberlake, 48-51. The Committee of Fifty was the organization who “objected to [the WCTU’s]

methods, not its purpose.”148

William Thayer Smith, Primer of Physiology and Hygiene: A Text-book for Primary Classes : with

Special Reference to the Effects of Stimulants and Narcotics on the Human System, [Ivison, Blakeman, Taylor &

Company, New York, 1885], 73, 90-91; Timberlake, 41. Timberlake states that Professor Emil Kraepelin of the

Universities of Heidelberg and Munich had published his discovery that alcohol was a depressant in 1892.



50

The WCTU did not limit itself to school textbooks either, utilizing many

vehicles to infuse their arguments into the public. According to Elizabeth Putnam

Gordon, “the scientific data and appeals that through WCTU publicity molded [sic]

public thought,” included teachings that “the sale of drink is the sale of

disease…poverty…insanity…crime…and death.”149 Another piece of evidence that

she cited was a phrase of William Gladstone’s: “Drink causes more injury to humanity

than war, pestilence, and famine combined.” The WCTU and other reformers alleged

that these educational efforts were the critical factor in securing the passage of the

Eighteenth Amendment in 1919.150 Cherrington notes that instituting these

educational requirements “resulted in bringing up a generation of men as well as

women in the knowledge of the evil effects of alcohol on the human body and

mind.”151 After the Eighteenth Amendment was ratified in 1919, Anna Gordon,

Frances Willard’s successor, expressed her opinion of the educational campaign’s

importance by proclaiming:

“‘Tremble, King Alcohol, we shall grow up,’ shouted the children, and inspirited fashion they sang, ‘We’ll purify the ballot box, we’ll consecrate theballot box, we’ll elevate the ballot box when we are twenty-one’…The cry of thechildren has been heeded by this great nation. Educated by the facts of science,by the precepts of the Bible, and the joy of temperance service, the children

have grown to manhood and womanhood and have helped vote out ofexistence the traffic in alcoholic beverages.”152

The educational campaign was a “fight for a clear brain,” and according to

Frances Willard, “The fight for a clear brain is a fight for Christianity.”153 The inclusion

of “scientific evidence” into the temperance argument greatly helped the movement,

but only because the WCTU’s political ability ensured that the argument became

widespread. For many reasons, the WCTU was essential in the temperance cause as

America moved closer to the 20th century and the Progressive Era. The organizationwas based on a religious opposition to intemperance, but the main reason for its

149 Gordon, 53. Gordon attributed this saying to Sir Benjamin Ward Richardson in 1892.150

Gordon, 43.151 Cherrington, 175.152 Sinclair, 109; Speech, Anna Gordon, President of WCTU after Frances Willard’s death.153 Gordon, 36.



51

success was the utilization of science in the fight against alcohol use. Religion had

always been an important factor in this fight but science was used to expand the

movement’s public support.

Many temperance reformers had used scientific arguments before, but until the

WCTU, religious appeals had always been more successful in securing support. Their

success was found in using political means to spread the message of temperance. The

WCTU’s influence, though great, was delayed for the most part. The organization was

spreading its message to children who had no real voice until years after they had

been in school and received the scientific temperance instruction of the WCTU.154 The

WCTU knew that the success of their cause depended on the children and accepted

that their success, though belated, would take years to achieve. They had to depend

on the voting majority and since most voters did not yet favor prohibition, they had to

depend on the future majority. Education was a major part of ensuring that they

would get this, and it was essential if they were going to keep it once achieving their

goal. They were limited in their ability to ensure the immediate passage of any

prohibitory legislation unless they could do it in their local towns, and while they had

some success doing this in certain areas, it was not nearly enough for them to be

satisfied.

By 1893, to the movement’s dismay, temperance laws had largely disappeared

in the states and there was still no substantial, organized movement for national

prohibition. From the 1880’s to the 1890’s, the temperance reformers had achieved a

great deal of success with four states enacting prohibitory laws, joining the previous

prohibition states of Maine, Vermont, and New Hampshire. Kansas became dry in

1880, Iowa in 1884, and North and South Dakota in 1889. However, only six states had

prohibitory laws in 1893. This was due to state laws either being repealed or being

found unconstitutional. The six states remaining either had laws that were written

weakly or they did not enforce them well.155 After the Dakota laws were enacted, no

154 Cherrington, 175; Gordon, 43; Sinclair, 43.155 Cherrington, 249. The states were Maine, North Dakota, South Dakota, Nebraska, Kansas, and

Vermont.



52

other state would pass prohibitory laws until the 20th century, when the reform spirit

of the progressive era spread across the nation. Until then, the prohibitionists had to

learn pragmatism and enhance their political savvy.

Temperance Problems in Pre-Progressive America

The movement put most of the blame for its stagnation during the 1890’s on the

liquor industry and the political influence it had. Add this to the more obvious reason

for their disdain of liquor dealers and it is not surprising that the temperance

advocates possessed a strong hatred for the industry. If the prohibitionists were going

to effectively counter the liquor lobby, they would have to develop their own political

machine. Cherrington, who was one of the Anti-Saloon League’s founding members,

wrote that:

[T]he liquor interests had perfected one of the strongest political machines thatthe country had ever known and had injected its dominating influence into thepolitics of almost every state and city of the nation, controlling conventions andelections and dictating the acts of legislatures.156

The liquor industry was viewed as evil for the obvious reason; that it profited on the

suffering it created through the distribution of alcohol. It “stood out as one of the most

corrupt and predatory of all economic interests, a major obstacle to political reform,

and a prime factor in the breakdown of honest government in the cities.” The

prohibitionists especially hated the liquor industry the trafficking of “demon rum,” as

in their eyes, these businesses constituted major corporations that were corrupting the

government, and were doing so with the money that they made exploiting the poor. 157

The earlier temperance movement did not have to compete with such a strong

liquor industry to enact legislative reform; however, the political strength of the

industry forced them to transform their tactics as the 20th century approached. Until

this time, the temperance movement had been divided over a number of ideological

156 Cherrington, 250.157 Timberlake, 16.



53

issues, which had seriously weakened its ability to force any action.158 Add that to the

fact that the movement still lacked the organizational structure or ability to do

anything on a national level. These problems had to be fixed before they could make a

sincere drive at amending the Constitution.

The most important temperance organizations from 1869 to 1893 were the

Prohibition Party and the Woman’s Christian Temperance Union, and although they

were assisted by a multitude of less powerful groups, the temperance movement was

not organized or politically powerful enough to ensure passage of any substantial

legislation on the state level after what had already been achieved. They definitely did

not have the ability to reform alcohol policy on a federal level.159 While being the

biggest components of the dry crusade before the Anti-Saloon League was established,

these two organizations also illustrate the dissonance that existed within the

movement until the start of the 20th century. As the outbreak of the Civil War caused

the end of the first temperance wave in America, dissonance within the movement

helped to end the second wave in the early 1890s. The end was marked by the

authorization of prohibition in the Dakotas in 1889. No other state would pass a

similar amendment for eighteen years.160

Cherrington noted that some temperance organizations in the 1880s, “to all

appearances, possessed a hatred of other similar organizations stronger by far than

their hatred of the saloon.”161 The main split in the movement was due to the

Prohibition Party, and whether or not it should be supported. Could a third party

take on the Democrats and Republicans and achieve the desired goals? The

Republicans had the majority of temperance support in comparison to the Democrats

and greatly resented the Prohibition Party. Republican loyalists believed that non-

158 K. Austin Kerr, Organizing for Reform: The Anti-Saloon League and Innovation in Politics, 40. Kerr states,

“Some advocated total prohibition of the manufacture, sale, and use of all alcoholic beverages, while others sought

merely to persuade their fellow citizens to be moderate in their drinking habits. Some wanted to use the power of

government to defeat the demon rum, while others engaged in private programs of moral suasion—so-called ‘gospel

temperance’—leaving the matter outside of politics.”159 Cherrington, 182. Kerr, 42.160 Hamm, 124.161 Cherrington, History of the Anti-Saloon League, 8.



54

partisan action would be much more effective in achieving temperance goals.

Temperance sentiment would extend itself beyond political affiliations if non-partisan

measures were pursued, the dry Republicans argued. This would make it more likely

that legislative majorities would arise in support of reform, and it would ensure that

other political issues would not divert them from their main goal.162 Those who

supported partisan efforts did not believe that any significant reform was possible

without something like the Prohibition Party. The flaw in this mode of thinking

would become clear when the Eighteenth Amendment was ratified and the

Prohibition Party was still insignificant.

The Republicans, in wanting support from those on all sides of the temperance

issue, did not appear to be the best hope for the reformers though. Many of the radical

prohibitionists left the GOP in the 1880’s since Republican candidates would not take a

hard-line position on temperance. The Republicans did not want to lose votes on

either side of the issue by stating any strong opinions about temperance.163 Also, in

the states that had enacted prohibition or in the towns that had adopted the local

option, nothing was being enforced. The Prohibition Party pointed to this as a reason

for temperance supporters to join them because the political parties that were in power

did not enforce the few laws that were in effect.164 If elected, the members of the

Prohibition Party vowed that they would do the job that the major parties were

neglecting so as to not lose votes.165 This caused the Prohibition Party to grow at the

expense of the Republicans. The Democrats received the benefit. “The controversy

surrounding the Prohibition Party,” historian Austin Kerr states, “was the most bitter

162 The Prohibition Party had adopted a very progressive political platform making it hard for them to

compete with the Republicans and Democrats. In 1888, they advocated things such as; granting the right of suffrage

to all citizens, paying men and women equal wages for equal work, labor reforms, as well as prohibition.163

Woodrow Wilson and Theodore Roosevelt would employ similar strategies in the election of 1912

against one another.164

Hamm, 125. He cites a March, 1891 report by a committee in the Kansas legislature that every city in

the state that had prohibition laws ignored them, and that many cities even taxed the illegal saloons.165 Hamm, 125. This theme of “nonenforcement” became central to the Prohibition Party through the

next three decades and national prohibition.



55

division within the temperance movement in the late nineteenth century,” but it

definitely was not the only one.166

Even the WCTU had conflicts between its members over their organization’s

partisanship status. It was founded as non-partisan and did not have affiliations with

any political party until 1884 when it began to officially support the Prohibition Party.

This switch occurred due to the party’s official position supporting women’s

suffrage.167 This rejection of a non-partisan method caused some members to

immediately question their leader, Frances Willard, and caused a major philosophical

split within the organization. This eventually caused an actual split when the

dissenters left the organization in 1889, walking out of the annual WCTU national

convention. Led by the president of the WCTU chapter in Iowa, these women

founded the Non-Partisan Women’s Christian Temperance Union.168 This split in the

WCTU reflected the one that existed within the entire movement over the issue of

partisanship. They were merely disagreements about proper organizational methods

for the movement. Ideological questions worsened the problem of disunity. They did

this when temperance was becoming more accepted across the nation, but more

importantly they did this when it was becoming accepted across party lines. 169

Their names indicated that their first priority was temperance reform, but

from their beginnings both the Prohibition Party and the WCTU fought for a number

of other social justice issues. This caused divisions to form within both organizations

about issues not related to temperance or partisanship. Considering the splits that

were caused by disagreements over the best methods of achieving temperance reform,

ideological disagreements within two of the movement’s most powerful organizations

166Kerr, 42.

167

Cherrington, 167. The other parties ignored invitations that the women had given for the parties toattend statewide conventions to discuss prohibition before the nominating conventions. The Prohibition Party

agreed to this so the WCTU vociferously supported it until 1901 when it reaffirmed the non-partisan status it had

when it was founded.168

Hamm, 127.169 Cherrington, 174-175. This became evident to the WCTU when the Republican Party adopted a

temperance resolution proposed to it by J. Ellen Foster in 1888. In the same year, Foster introduced a resolution to

the WCTU reestablishing its nonpartisanship which failed. Foster and her supporters left the WCTU immediately

and formed the Non-Partisan Woman’s Christian Temperance Organization. This group rejoined the WCTU after

it again adopted nonpartisanship and Foster died.



56

just promulgated the movement’s disunity and futility.170 Other political and

economic issues were beginning to overshadow temperance question in the 1890s.

Economic issues were forced to the forefront of political debate during the depression

of 1893, which led to the rise of a new political party in America. Voters were more

concerned with restructuring the nation’s economy, authorizing the government to

control corporations, and changing the monetary system.171

The Populist Party emerged to lead the way on these reforms, actually adopting

many of the economic ideas in the Prohibitionist platform, but it was much more

successful at doing so. In the election of 1892, they received nearly four times the

votes as the Prohibitionists.172 The comparative success of the Populists deepened the

preexisting division within the Prohibitionist Party, which was between those who

wanted the platform to support many reforms and those who wanted to abandon

support for everything other than temperance reform. In 1896, the party adopted a

single-issue platform, which caused the “broad-gauge faction” to desert and form a

new party. Thus, partisanship proved to be a major problem for the temperance

movement, as is evident by the problems experienced by the political party who was

supposed to champion the cause:

If they refused to commit themselves on any issue other thanprohibition, they found it impossible to persuade any considerable

number of voters to disregard their opinions on all other political

issues for the sake of united action against the liquor traffic. But if

they took a clean stand on contentious party issues, as they did in

1884 and 1888 on the tariff, they repelled possible converts from the

ranks of the Democrats and low-tariff Republicans without securing

the support of the high-tariff temperance men who believed the tariff

to be a matter of great importance. Or they split their party as they

170 See note 158.171 Hamm, 126.172 Hamm, 126. The Populist Party got over one-million votes and the Prohibitionists got 264,133.



57

did in 1896, when both silver and gold Prohibitionists put

independent presidential candidates in the field.173

The Prohibition Party was never politically effective because of its disunity and

the entire movement was seemingly losing its effectiveness for the same reasons. The

movement’s hope for success depended on the eradication of inner discord, though

this did not even guarantee success. In 1893, one editorial writer in New York

described the situation like this: “The condition of the temperance cause has been

anything but encouraging the past three or four years, and the outlook is certainly not

bright.”174 These organizational and ideological disagreements defined the movement

at the end of the 1880s. If the movement was going to succeed in the 20th century, it

needed an organization that focused solely on temperance as a political issue, and that

properly cultivated the pre-existing temperance sentiment. The Anti-Saloon League

was founded to do this in 1893; adopting a new approach to temperance reform

consisting of organizational restructuring, political pragmatism, and taking advantage

of the evolving progressive movement.175 These tactics quickly reaped tremendous

rewards for the movement. “Big business began the practice of lobbying in America,”

says Sinclair, “but the Anti-Saloon League perfected the techniques.”176 It was only

able to take advantage of those techniques, however, due to the rise of the progressive

movement and the changes taking place in American politics.

[I]t was only when special conditions existed to give the liquor problemunusual urgency that the temperance movement became an object of concern tothe public at large. Such conditions arose with particular force during the earlyyears of the nineteenth century and again during the early years of thetwentieth century. And in each case the temperance revival coincided with anation-wide reform movement.177

173 A.N. Holcombe, The Political Parties of Today [ New York, 1924], 322. Quoted in Peter H. Odegard,

Pressure Politics: The Story of the Anti-Saloon League, [Octagon Books, New York, 1966], 79.174 Quoted in Kerr, 39.175

Hamm, 124.176 Sinclair, 107.177 Timberlake, 13. He claims that the rapid extension of voting rights to the urban laboring classes and

western frontiersman coincided with the nineteenth century temperance movement, which was fairly brief.



58

THE TEMPERANCE MOVEMENT’S

PROGRESSIVE TRANSFORMATION

One thought, sentiment, and purpose animated those saintly praying hands,

whose names will never die out from human history: ‘Brothers, we beg of you

not to drink and not to sell’—this was the single wailing note of these moral

Paganinis, playing on one string. It caught the universal ear and set the key

of that mighty orchestra, organized with so much toil and hardship, in which

mingle the tender and exalted strain of the clanging cornets of science, the

deep trombones of legislation, and the thunderous drums of politics and

parties.178

—Frances Willard

The Pragmatism of the Anti-Saloon League

The American Anti-Saloon League was founded in 1895 in Oberlin, Ohio. The

first political lobby of its kind, the League changed the nature of political action in

America and played a critical role in the passage of the Eighteenth Amendment.179

Until this organization’s founding, the WCTU had publicly led the temperance

movement and the Prohibition Party, which were both headed by people who did not

want to compromise on the issue of national prohibition. Their inability to achieve

this was not due to people being completely unsympathetic to their cause. In fact, a

majority of Americans in the late 18th century supported temperance to some degree,

which is to say that most thought that it was not good for people to be constantly

drunk at a saloon. Most thought temperance was a good thing but not all were ready

178 Gordon, 36. Frances Willard.179 K. Austin Kerr, Organizing for Reform: The Anti-Saloon League and Innovation in Politics, 1.



59

to adopt the proposals offered by radical prohibitionists who wanted to use the

government’s power to ban the immoderate use of alcohol. The most radical members

of the temperance movement of the 19th century were ahead of their time in calling for

such a broad extension of the government’s authority. In fact, the members of the

Prohibition Party referred to themselves as the “first progressives.”180 Though they

were ahead of the times in their reform proposals, they were behind the times in their

methods.

The third temperance wave in America, driven by the Anti-Saloon League, was

perfectly in step with the rise of progressivism. It did not get too far ahead of majority

opinion like the radical prohibitionists had done, but it also did not abandon the

fundamental beliefs of the movement. The Anti-Saloon League was effective because

of its pragmatism, political skill, and more importantly, its ability to keep pace with

public opinion. “The Anti-Saloon League shared the radical prohibitionist’s

aspirations,” states Hamm, “but went beyond their dogmatic methods.”181

The hierarchical design that Howard Hyde Russell, the man who founded the

league, came up with was crucial to its success. The WCTU and the Prohibition Party

had been designed in a democratic fashion, but the League was designed to be a

bureaucracy.182 Russell looked to emulate the structure of the modern business firm.

It admired the organizational schemes used in industries that had become

astonishingly powerful in the prior decades, and only the organizational schemes.

Giant corporations were envied by all for their power and success, but blamed by the

progressives causing society to suffer. Russell wanted to use their methods against

them. “As corporations, trusts and combinations have succeeded by a union of forces

in the commercial world,” Russell stated,” so, it was urged, the powers of

righteousness should be mobilized and federated for greater moral victories.”183 The

national league was at the top, which had power over the state leagues, then the

180That is, before the election of Theodore Roosevelt.

181 Hamm, 159.182 Kerr, 48.183 Ibid, 47.



60

county leagues, and finally local groups and churches. Within this hierarchy, various

departments were established to divide up primary duties: agitation, legislation, and

law enforcement.184

Although the organization was divided up into separate regions and divisions,

every part was towards the same objective: national prohibition. Unlike the

misnomers of the WCTU and Prohibition Party, the Anti-Saloon League’s name

described its one and only objective. It wanted to shut down the saloon and did not

publicly fight for any other issue. Everybody within the movement could agree on

this objective, which is why the League chose it. It united the temperance forces that

had previously been divided over partisanship and ideological differences.185 It did

not demand widespread prohibitory legislation, but won widespread support by

simply declaring, “The Saloon Must Go!”186 Focusing on the saloon made temperance

a commerce issue, not an issue of individual liberty. Although this altered the

temperance movement’s focus regarding the types of legislation to work with, the

moral foundation remained the same.

It could not be publicly stated because it would undermine the league’s efforts

but national prohibition was clearly its ultimate goal.187 It was not until April of 1917

when they openly called for imposing abstinence on the entire nation.188 Until then,

the league relied upon the enactment of new local option laws and the enforcement of

existing laws, which were not being enforced, to spread temperance in the United

States.189 Success in both of these legal endeavors depended on the sentiment of the

184Hamm, 132. Kerr, 47. There was a fourth department; finance, but

185 Hamm, 134. Some radicals initially rejected the League and its ideas, but they came around as soon as

they accepted that it was the movement’s best chance for success. For example, the WCTU refused to send any

representatives to the Anti-Saloon League’s organizing convention in 1895, and the Prohibition Party publishedarticles renouncing the league as an “omni-partisan failure.”186 Timberlake, 127. This was the motto that they adopted for their first convention in 1895.187 Odegard, 79. Timberlake, 147. Hamm, 136.188

Timberlake, 148. Until 1913, the league did not try to push through national legislation that prohibited

the personal use of intoxicating liquor for legal reasons, but even after this they continued to solely concentrate on

the saloon.189 As was mentioned earlier, the prohibition laws during the mid-1890s largely went unenforced, or

enforcement was sporadic at best. Because of this, the league put a great amount of effort into ensuring that the any

laws on the books would be enforced. If they knew of officials that were not enforcing the local laws or the state



61

public, which they had to arouse. Education, therefore, was “the bedrock of

temperance reform.”190

Like the WCTU, the Anti-Saloon League believed that education would

determine the possibility of achieving prohibition in America. Unlike the WCTU

though, the league did not focus its efforts on children. As is perhaps indicated by the

name of the department responsible for this aspect of the cause—the Agitation

Division—they used education as a political weapon. They distributed pamphlets,

journals, leaflets, and many other forms of literature to spread propaganda about the

evils of the saloon. The American Issue was the first journal that the league distributed

on a national level. It covered all topics related to temperance—politics, religion,

science, and economics. It was first printed in 1907 in Westerville, Ohio, which was

where the league soon established its own publishing house, The American Issue

Publishing Company. This plant it was putting out more than 40 tons of literature

each month by 1912. By 1919, the American Issue had a circulation of about 16

million.191 This massive distribution of literature constituted nearly the entire budget

of the league, but it also created the temperance sentiment necessary to be effective in

their law enforcement and legislative efforts.192

Webb-Kenyon and the Eighteenth Amendment

Local option laws were the preferred tactic of the Anti-Saloon League for three

reasons: it ensured that the public was being educated on the evils of the saloon, it

prepared the organization (specifically its lawyers) for more substantial undertakings

and success on the local level increased the possibility of enacting national

prohibition.193 If there were a few towns within a county that voted against the saloon,

laws then they would bring them to court, usually in the name of the government, not the League. “The law

enforcement agenda paralleled the league’s preferred political tactic of omni-partisan pressure.” Seeon page 56.190 Hamm, 132. He attributes this quote to the league’s founder, Russell.191

Timberlake, 139. Odegard, 75. Ernest Cherrington, author of The Evolution of the Temperance Movement

in America, was the man who ran this plant.192 Timberlake, 137. 9/10ths of their budget.193 Ibid.



62

then a law would be fairly easy to pass that prohibited alcohol within that county. If

there were a number of dry counties within a state, then the state would likely become

dry, which would eventually make national prohibition a consideration. By 1913, local

option laws had spread across the nation, with thirty-one states having them in

effect.194 The League’s patience and pragmatism began to payoff.

This “upsurge of dry sentiment” due to the Anti-Saloon League’s success put

the temperance movement in a position to achieve its ultimate goal. Before taking the

last step of calling for national prohibition they had to try to build off of the Wilson

Act, which was passed in 1890 and the first step that the government took to

acknowledge that it might take action against liquor. The movement had been trying

to get an interstate commerce law enacted to strengthen the federal government’s

ability to regulate liquor traffic that it had due to the Wilson Act. However, the

temperance movement had been trying to do this since 1898 when the Supreme Court

ruled in Rhodes v. Iowa that the Wilson Act enabled a state to prohibit the importation

of liquor from another state if it was being imported for purpose of sale, but it could

not prevent the importation of such liquor for one’s own private possession and use.195

Since the Anti-Saloon League focused its attacks on the liquor traffic in an attempt to

sidestep their opponents who claimed that the league opposed personal liberty, they

had a hard time drawing up stronger interstate commerce legislation that could not be

attacked in such a way to.196 Finally, in 1913 with temperance sentiment spreading

across the country, the Webb-Kenyon bill was enacted to prohibit the importation of

all intoxicating liquor “intended to be received, possessed, or used in violation of the

laws that state.” The arguments put forth in Congress to ratify this bill convey the

progressive ideas behind it:

Each of us is under an imperative duty to enlist in the great work of lifting upthe human race to a higher and better life, and nothing, in my judgment, will so

194 Hamm, 133. Hamm states that the league was actually not the main reason for most of these laws being

passed but nonetheless took credit for their passage, which thereby increased their standing in eyes of the public and

overall temperance movement.195 Rhodes v. Iowa, 1898.196 Timberlake, 147.



63

promote this work as will the giving of relief from the evils that flow from thewhiskey traffic. A republic… can be no better than the average of the men andwomen who give a concrete existence; therefore it is right and proper that we,as legislators… should remove as far as we can everything that that basis,demoralizes, and depraves our citizenship.197

President William Howard Taft vetoed the bill on constitutional grounds. The

bill’s critics said that it delegated the power to regulate interstate commerce to each

individual state, which they could not alone exercise. Nonetheless, its passage provided

the temperance movement with the opportunity to go forward with a constitutional

prohibition amendment. Once the United States entered World War I, success of the

amendment’s passage was virtually guaranteed.

Andrew Sinclair, British historian of alcohol prohibition in America, opined:

The success of the prohibitionists is, in fact, easier to understand than theirdefeat would have been. For they had controlled the best part of thecommunications of the time. They had organization, money, and a purpose.The leaders of opinion were often on their side. They’d been indoctrinating theyoung for 30 years in the public schools and through their mothers. History,optimism, and improvement were their supporters. With open sincerity, theprohibitionists looked forward to a world free from alcohol and, by that magicpanacea, free also from want and crime and sin, a sort of millennial Kansas tofloat on the nirvana of pure water.198

Progressive Ideas, the Temperance Movement, and the Anti-Narcotics Movement

Temperance reformers first tried to eliminate the abuse of alcohol by moral

suasion. After realizing that this would only achieve so much, they turned to the

power of the state in the hopes that it would take some action to help ensure social

justice.199 This idea became prevalent in America with progressivism by bringing all

the reformers under one political banner. Timberlake asserts that the man most

responsible for bringing the temperance movement into the progressive movement

197 Congressional Record, 62 Cong., 3rd Session, 4443. Quoted in Timberlake, 160.198 Sinclair, 4.199 Hamm, 36.



64

was preacher of the social gospel and superintendent of the California Anti-Saloon

League, Reverend David M. Gandier, who expressed his progressive sentiment in

statements such as this:

The fight is just begun. The selfish forces of the land—Big Businessand its ally, commercialized vice—are preparing for the death

struggle. I believe the spirit of our age is against them. Everything

which lives by injuring society, or which enriches the few at the

expense of the many, is doomed to go. The spirit of brotherhood,

which means a square deal for all and that those of superior cunning

shall not be allowed to rob their less cunning fellows any more than

the physically strong shall rob the weak, is abroad and is going to

triumph.200

Woodrow Wilson believed that the founder’s understanding of liberty as an

individual’s right against the state was “impeding the prospects for the progressive

agenda,” and he believed liberty to be a collective right of the majority to use

governmental power in promotion of their interests.201 The crusade against alcohol

stemmed from the progressive idea that the main purpose of the national government

was to use its power to shape the individual’s moral development in the interest of

society’s progress.202 The vast expansion of the federal government’s power was one

result of this, and both policies of prohibition were an important part of this

expansion.203

200

Gilman Marston Ostrander, The Prohibition Movement in California, 1848-1933 [University of CaliforniaPress, Berkeley, 1957], 104. Quoted in Timberlake, 167.201 Ronald Pestritto, Woodrow Wilson and the Roots of Modern Liberalism [Lanham: Rowman and Littlefield

Publishers, Inc., 2005], 55202

Timberlake, 2. William Anderson notes that “most modern Progressives are not particularly proud of

this ‘achievement.’” Taken from "The Progressive Era, Part 1: The Myth and the Reality," The Future of Freedom

Foundation, June 9, 2006, www.fff.org/freedom/Fd0602.asp (accessed August 24, 2008).203 Robert Post, "Federalism, Positivism, and the Emergence of the American Administrative State:

Prohibition in the Taft Court Era." William and Mary Law Review 48, no. 1 (2006): Yale Law School Public Working

Paper No. 118.



65

In 1927, Irving Fisher, a member of the Alcohol Information Committee stated

that, “The organization of society is now so complex that in many lines of endeavor

we carry each other’s safety in our hands, and none of us is free if another takes the

liberty to dull his wits with drink.” It seems that the individual’s freedom is inferior to

the liberty of other’s according to this statement, but he also said that alcohol causes

one to lose “the very essence of personal liberty” because it limits his ability to reason,

and that personal liberty is greatest when one maintains a “harmonious relation to the

social group in which he lives.”204 The idea of progress and human nature’s

malleability initiated the concept of using law to shape men for society’s benefit.

These new ideas of the nature of freedom and equality that came about during the

progressive movement are essential to understanding the root causes of both the

temperance and antinarcotics movements.

The temperance movement shared its fundamental ideas with progressivism

and eventually adopted progressive methods, which was to bring about gradual

change in the law. Before the onset of progressivism in the late 19th century, the

temperance movement had already established itself as a significant political and

social movement in America. In this way, the temperance movement and the anti-

narcotics movement were extraordinarily different.

Unlike alcohol prohibition, narcotics prohibition was not caused by any

widespread public pressure or political campaign. Rather, it was the work of

government insiders, led by progressive-era professional groups and anti-opium

missionaries, with crucial support from President Theodore Roosevelt. The push for

national drug legislation was consistent with the broader progressive agenda, which

favored strong federal action for society’s moral development.

Examples of legal action being taken against narcotics can be found in pre-

progressive America but anything that can be considered significant did not occur

until the 20th century. The anti-narcotics movement was a direct result of progressive

204 Irving Fisher, Prohibition at its Worst [New York: The McMillan Company, 1927], 172.



66

ideas and the “transformation of American politics” that those ideas triggered.205 As it

shared the same fundamental ideas and utilized progressive methods, the anti-

narcotics movement was, in essence, merely a derivative of the progressive movement.

For this reason, the anti-narcotics policies established during this era should be

considered a more successful progressive reform of the era than alcohol prohibition

was.

205 West and Schambra,”Progressivism and the Transformation of American Politics,” 3.



67

THE ANTI-NARCOTICS MOVEMENT

The Spread of DemocracyBetween Theodore Roosevelt’s term in the White House began in 1901 and

Woodrow Wilson’s ended in 1919, America had engaged in, what Timberlake calls,

“two great crusades: one to preserve democracy at home and the other to make the

world safe for democracy.”206 This time period saw the federal government’s most

significant actions against both alcohol and narcotics in the nation’s history. These

actions were a direct result of the transformation in the fundamental theory of

American constitutional government that had been caused by progressivism. This in

turn altered what the federal government was responsible for and how it exercised its

power in regards to those responsibilities. The progressive movement had changed

the nature of the American polity drastically by asserting that government’s purpose

consisted of more than what the founder’s postulated; the securing of rights every

human being had by nature, which did not allow for many broad interpretations

justifying the expansion of its power. Instead, the progressives theorized, “the

government must have the power to determine the Law instead of being

circumscribed by the Law;” and accept “complete responsibility for the public

welfare.”207 This could only be done by instituting a system of government that

maintained “sensitive touch with public opinion,” and an efficient way to respond to

that opinion as “an instrument of important social purposes.”208 However, this had to

occur gradually.

Alcohol prohibition was achieved by amending the Constitution, which the

temperance movement had been pursuing for nearly fifty years. The movement

against narcotics began during the progressive era and the action that the federal

government took against narcotics coincided more with progressive political ideas

206 Timberlake, 1.207 Croly, Progressive Democracy, Ch. 8; taken from Pestritto, American Progressivism: A Reader , 247.208 Ibid. 244.



68

than the constitutional action against alcohol did. There were many similarities

between the anti-narcotics movement and the temperance movement, but there were

also striking differences. Both must be understood in order to understand why—from

a constitutional standpoint—the federal government has treated alcohol differently

than drugs.

The first narcotic that the federal government became involved with was opium.

This was due to the U.S. takeover of the Philippines after the Spanish-American War

came to an end in 1898, resulting in the Treaty of Paris of 1898. The concessions of this

treaty included the responsibility of the United States over a new territory: the

Philippines. While in control for the fifty-years prior, the Spanish had a monopoly

over the sale of opium and had only allowed for merchants to sell the drug to the

Chinese. The merchants were contracted by the Spanish government and paid taxes

on their profits. When the Spanish lost control to the United States, opium imports

drastically increased since the merchants no longer had to acquire licenses, pay taxes,

or restrict sale to the Chinese. This increased the number of opium users in the

Philippines and presented the American government with a situation it had never

dealt with before in its history. The Philippine Commission under the authority of the

U.S. Department of War had the main responsibility for dealing with this issue. As

President Theodore Roosevelt appointed him civil governor of the Philippines,

William Howard Taft headed this group and approved the first plan of action

presented to him. Roosevelt, however, vetoed this plan in favor of another.

The Supreme Court had ruled in 1901 that the doctrine of state’s rights did not

apply to territorial possessions, such as the Philippines, which meant that the

Philippine Commission could choose nearly any method when dealing with the

opium situation there. The first plan considered was very pragmatic: it was to enact a

policy nearly identical to that of the Spanish government. This was nearly put into

action until being “electrocuted by Presidential lightning,” which was the result of

Roosevelt listening to the advice of those who opposed such a plan on moral grounds.

The lead protestors were the Reverend Wilbur Crafts, who was the leader of the

United State’s International Reform Bureau, and the Bishop Charles Henry Brent, who



69

was the first Episcopal bishop in the Philippines.209 Brent was a member of the

Philippine Commission and provided it with a “moral conscience.”210 These two men

of the cloth did not want the United States to approve a measure that permitted the

use of opium, even if it would be restricted to the Chinese, like the Spanish had done.

They did not support immediate prohibition of the narcotic either, as they viewed that

as also being an unwise policy. Therefore, Bishop Brent formed another committee to

examine the problem and other possible solutions.

In June of 1904, nearly a year after the committee was formed; Brent’s

committee submitted a fairly simple proposal based on their findings. The United

States would reinstitute a government monopoly, only allowing men above the age of

21 to smoke opium. The amount an individual could purchase would gradually be

reduced over the next three years and use would then be completely banned, other

than for medicinal reasons. Schools would be required to educate Filipino students

about the evils of opium during those three years and after.211 As is indicated by the

plan, Brent and his committee did not believe that immediately enacting total

prohibition would be prudent, but it should nonetheless be the ultimate goal. Like

Roosevelt did, Congress rejected this plan and opted for a quicker route to achieve this

goal.

In March of the following year, Congress ordered that opium was prohibited

for all Filipinos other than for medical reasons. This policy would then extend to all

non-Filipinos in three years. The group that this would affect most was the Chinese

who were living in the Philippines; this meant that the ethnic distinction made by the

Spanish would be reinstituted by the United States. Brent and his committee made no

such distinction in their plan, disagreeing with it in the “interests of equity and

209David Courtwright, Dark Paradise [Boston: Harvard University Press, 2001], 79.

210 Musto, The American Disease, 26.211

Albert, Dr. Jose, Rev. Charles H Brent, and Major E. C. Carter. Report of the Committee Appointed by the

Philippine Commission to Investigate The Use of Opium and the Traffic Therein and the Rules, Ordinances and Laws

Regulating such use in Japan, Formosa, Shanghai, Hong Kong, Saigon, Singapore, Burma, Java and the Philippines.

[Washington D.C.: Government Printing Office, 1906], 51-53.



70

justice.”212 This congressional action marked the first time that the United States

directly dealt with narcotics on an international level, but it did not have the effect on

U.S. domestic policy like the following episode would.

China had been dealing with regulative opium issues since the early 18th

century and America became involved as her presence in the Far East increased. 213

Angry at the treatment they received from Americans; Chinese merchants organized a

voluntary embargo on American goods in 1905.214 This aggravated American traders,

as well as Teddy Roosevelt, who did not appreciate the Chinese trying to push him

around. Nevertheless, he knew that military action would not mend trade relations

212 Report of the Committee Appointed by the Philippine Commission, 53. The Philippine Commission was

permitted to institute other provisions that would apply to the Chinese until total prohibition was enacted, so they

decided on making the licenses opium dealers had to purchase expensive and forcing the males to register as

habitual users. They also gradually decreased the amount allotted to those users until 1908 when the prohibition

took effect.213 In 1729, when the foreign import was 200 chests, the Emperor Yung Ching issued the first anti-opium

edict, enacting severe penalties on the sale of opium and the opening of opium-smoking divans.

<www.druglibrary.org/schaffer/history/om/om15.htm>V The anger of China toward America and other western countries was rooted in the concessions it was

forced to make in the treaties after the Opium Wars, which lasted from a round 1839-1860, the anger stems more

specifically from the treaty after the First Opium War that ended in 1842. The concessions made after the First

Opium War included the opening of certain ports to Great Britain, America, and France, the payment of three

million ounces of silver to Great Britain and two million ounces to France, as well as allowing Americans to learn

Chinese. The Chinese government was angry at the concessions as well as the West’s treatment of China. The

British government was engaged in the trade of opium to China, before the First Opium War, using opium as

capital to slow the outflow of silver into China in the early 18th century. Because of mass addiction, the Chinese

governor of the major port of Canton, Lin Zexu, confiscated and destroyed a cargo load of opium in an attempt to

stop the opium trade. The destroying of the 20,000 chests (each weighed roughly 120 pounds) caused tension

between the two nations; the vandalizing of a Chinese ship and killing of a man, by drunken British sailors, then

escalated this tension. Britain refused to allow China, who wished to put them on trial in China, access to the

sailors. Britain felt that the Chinese government was barbaric and did not give up the sailors, though the Chinese

felt that those who broke Chinese law were to be tried and punished by China. Lin wrote a letter asking Britain to

stop the trade of opium, but Britain refused and war broke out between them in November of 1839. The war ended

in 1842, Britain overpowering the technologically inadequate Chinese forces. In the treaty negotiations China wasforced to open five ports to Britain, allow Britain completely free trade with China, and had to grant Britain the

same privileges that any other country may have access to. Within two years China would be forced to sign very

similar treaties with France and the United States. In the 1850’s China would become angry again, this time at the

exploitation of Chinese labor in the Western Hemisphere, and would again lose the confrontation with the United

States. In the Treaty of Tianjin China is forced to pay France and Great Britain the concessions mentioned above,

ten Chinese port cities are created, and Christian missionaries are given complete freedom to travel China and

spread their religion. Richard Hooker, "The Opium Wars". Washington State University.

<http://wsu.edu/~dee/CHING/OPIUM.HTM>. 214 Musto, The American Disease, 38-39.



71

between the nations and that he needed to adopt a more diplomatic approach.215 The

opportunity to do this presented itself in 1906, when Bishop Brent requested that the

President join in an international meeting about the opium problem in China. Brent

believed that unified international action was the only thing that could stop the opium

traffic going into China and make the upcoming opium prohibition in the Philippines

effective.

Two and a half weeks before this meeting was to take place, the United States

Congress passed legislation that showed support and sympathy for opium issues in

China. On February 9, 1909, the Opium Exclusion Act was passed. This legislation

prohibited the importation of Chinese smoking opium only, leaving the medicinal

opium that was used in many American households entirely untouched.216 This

legislation passed hastily through congress, based on the timing and the fact that

opium use had been steadily decreasing since the turn of the century, it was enacted

purely as a means to open trade relations with China at the forthcoming international

meeting.217 The consequences of this legislation, on the domestic soil of the United

States, would be felt soon after the commission in Shanghai, and is the passing of this

legislation was beginning of what will eventually become modern narcotics reform.

Roosevelt knew that offering such assistance to China would help the United States’

trade relationship with it, and so an American delegation was sent to Shanghai to meet

with twelve other countries during late February of 1909 at the International Opium

Commission.218

215 Patricia Ebrey, Modern East Asia: A Cultural, Social, and Political History [Florence: Wadsworth, 2006]. In 1905, the

Shanghai Chamber of Commerce organized a private boycott against the United States, the result of the Chinese

citizens being unhappy with the American-Chinese relationship. This was partly because of the United States

restrictions on Chinese immigration, the quick use of violence by American gunboats that patrolled Chinese waters,

and their feelings on the treatment of their people during the mid to late 19

th

century when constructing therailroads. This boycott developed into an entire Chinese embarg severely hurting the American economy. In

response to this Theodore Roosevelt sent an American naval fleet to China and warned their government that they

would be personally responsible for any harm to American business done by the embargo.216

United States Department of the State, Papers Relating to Foreign Relations of the United States

[Washington: Government Printing Office, 1919].217

Dale Gieringer, “The Opium Exclusion Act of 1909,” CounterPunch [February 2009]. This was the first

federal measure to actually restrict the importation of opium, before this act opium had been taxed, since 1883, at a

price from $6 to $300 a pound.218 Musto, The American Disease, 30.



72

This commission adopted resolutions pertaining to the problems facing China,

but they did not amount to anything binding. Though the American delegation

originally sought for the meeting to have the designation of a convention (rather than

commission), which would allow it to adopt binding resolutions with the attending

nations, they were unsuccessful and the commission met without obligatory pledges.

This means they did not constitute an international treaty and therefore America was

not required to adopt any of the recommended policies. Brent was the chairman of the

entire meeting and knew that it was only considered to be a “fact-finding body” that

could only make policy suggestions. Though there was no legal obligation for

America or any of the other nations to abide by these proposals, and Brent along with

the other two American delegates believed that America had a “moral commitment”

to act in accordance with the resolutions that the commission agreed to. This helped

inaugurate an American tradition in narcotics control—enactment of strict domestic

legislation in the United States as an example to other nations.219 The man who

drafted the legislation that would bring America in line with the Shanghai

recommendations if Congress ratified it was one of Brent’s co-delegates.220 A scientist

in the State Department, Hamilton Wright soon became the most important person in

the history of American narcotics policy.

The One-Man Reform Movement

The movement against narcotics use did not have strong public opinion on its

side like the temperance movement had with organizations such as the WCTU and the

Anti-Saloon League, although many of these organizations did speak against

substances like opium. What it had was Hamilton Wright, who was the equivalent of

219 Courtwright, 81 The author claims that the United States could not go to Shanghai, urging twelve of the

most powerful countries in the world to regulate and put restrictions on opium, when it had no legislation acting on

their argument in place. The U.S. could not assume the leadership role against the east’s opium until it took the lead

against its opium issues. The U.S. was gathering large revenues off the taxing of opium, if it were to urge the other

countries to disavow revenue off of opium she must first legislate on the moral grounds they were attempting to

argue. Wright would have liked to see a much stronger regulation than the one set out in the Opium Exclusion Act,

but due to the short amount of time before the International Opium Commission was to meet.220 The third delegate was Charles C. Tenney.



73

the Anti-Saloon League in the campaign to eradicate non-medicinal drug use in

America. Public opinion had a part in shaping the government’s narcotics policy, but

in a much different way than it did in shaping alcohol policies. The public was not

aware of it due to the simple fact that drug use was not nearly as prevalent as drinking

was in early-20th century America. Wright felt that drugs could become a serious

problem and therefore needed to be handled sooner rather than later.

As soon as he learned of his appointment to the international delegation,

Wright sent a memorandum giving his opinion of the opium problem to President

Roosevelt. Wright wanted the United States to set an example for the international

community before the Shanghai meeting by passing a strict federal law against opium.

David Musto says that this action “reflected Wright’s view of his role in the

government.” He did not have a significant amount of real political power in his State

Department position, but was “a distinguished scientist trying to accomplish quickly

and efficiently an important political assignment.”221 This reflected more than just

Wright’s opinion of his role in government; it reflected his view of the federal

government’s role in America. It also reflected the progressive’s view of the

separation of politics and administration. In 1886, Wilson wrote, “The idea of the state

and the consequent ideal of its duty are undergoing noteworthy change; and ‘the idea

of the state is the conscience of administration.’ Seeing every day new things which

the state ought to do, the next thing is to see clearly how it ought to do them.”222

If America was to lead the international effort against narcotics then Wright

believed it had to enact a national policy that regulated the importation, use, sale, and

manufacture of opium, opiates, coca leaves, and other similar substances. He

understood that such an extensive law would only be enforceable by a national police

force, which was impossible under the Constitution, but he also did not feel that the

other nations would understand the complexities of American federalism and

221 Musto, The American Disease, 32.222

Wilson, “The Study of Administration.” He also said that as the people got more control over

government, “Those views are steadily widening to new conceptions of state duty; so that, at the same time that the

functions of government are everyday becoming more complex and difficult, they are also vastly multiplying in

number. Administration is everywhere putting its hands to new undertakings.”



74

therefore not understand why such a law had not been passed by the nation who was

supposed to lead and set an example for the commission.

Part of his desire was filled with the passing of the Opium Exclusion Act, but

this only regulated the importation of smoking opium from China: it was intended to

enhance foreign relations with China more than to be the icon of the beginnings of

strict international limits on opium. While thirteen nations were present at the

discussions “[T]he Commission was far from ‘international.’ The focus was on China’s

opium problems-five of the nine resolutions mentioned China by name and the United

States and Britain dominated the discussions.”223 Wright and the rest of the American

delegation wanted to add a resolution requiring all nations at the International Opium

Commission to take action ensuring that no opium was shipped from any port of a

signatory nation. The delegation got the other eleven nations to agree to this, and

Wright later explained how they did so:

This resolution we had a great deal of difficulty in getting through, but westrongly urged upon the commission the fact that we had in our national purefood laws the same penalties on the shipment of deleterious articles to foreigncountries as on the shipment of the same articles in our interstate commerce. Istated that we had done this not as result of pressure from foreign ports, but asa matter of international courtesy, and that the American delegation felt that it

was time that the principle of “do unto others as you would be done by” wasrecognized in regards to such matters and especially in regard to the opiumtraffic.224

Wright used the policy of America’s pure food laws to get the delegation that if

they were going to enact these resolutions domestically, they should follow American

example, and they should adhere to them internationally as well. The pure food and

drug laws in the United States were enacted in 1906, and though they primarily dealt

proper labeling, it marked the beginning of federal regulation of goods and substances.

This act required that goods be clearly marked with their ingredients, eventually

requiring the amounts of each ingredient, and began a movement to disband

223 Ch. 19- The International Legal Environment “The 1909 Shanghai Conference” <www.druglibrary.org>224 Proceedings of the American Society of International Law at its Third Annual Meeting…April 23 rd and

24th, 1909.



75

ineffective so-called “patent” medicines. This act is important to the history of

narcotics legislation because it also required substances that contained opiates to state

so on the label, this does not yet restrict their use, but is the beginning of federal opiate

regulation. In the same year as the Pure Food and Drug Act, Congress passes the

APHA Pharmacy Bill. The American Pharmaceutical Association, in 1903, proposed a

bill that restricted cocaine, opiates, and chloral hydrate to be distributed only by

prescription to addicts. In 1906, this bill was adopted by the United States Congress as

the policy of Washington D.C., continuing the tradition of federal regulation of

narcotics in a territory, also seen in the Philippines. Soon after this becomes the policy

of Washington D.C., other states in the union subscribed to this procedure. California

was one of these states and had a long history of regulating narcotics that stretched

back since before the beginning of the progressive era.225

225 Yun Quong, a Chinese immigrant, who asserted that this legislation was a violation of his

individual, natural rights to liberty and property, challenged this law. The decision that the

California Supreme Court handed down upheld the constitutionality of the opium ban, claiming

that it fell under the policing power of the state legislature. Declaring “[I]t is the functionality of

positive law to see that this constitutional guaranty is so applied.” This guaranty was, the court

states, that these rights be applied to individuals in light of their relationship to others, and not

as rights that an individual would possess were he a law unto himself. While, perhaps, this

legislation was under the scope of the policing power of a state legislature, the theory put forth by

the court demonstrates, on a state level that predates most federal decisions based on a similar

creed, the shift in ideology during the early years of the progressive era. This theory, seen in later

federal narcotics legislation, was that positive law, where the originator of rights is the

government, is seen in this decision as beginning to overtake natural law in the dawn of the

progressive era. This new theory of law, seen in the judgment of Quong’s case that was ruled in

1911, differs greatly with the pre-progressive era’s understanding of law, an older interpretation it

adheres closely to the founders understanding of natural law. It is seen in the California Supreme

Court, in 1887, the court ruled on an opium case that asked a basic question similar to Quong’s.

The judge ruled “[T]o prohibit vice is not ordinarily considered within the police power of the



76

California had been the first state in the nation where an anti-drug law was

passed when, in November of 1875, San Francisco passed a statute closing public

opium dens. Following the enactment of this law many other cities in California, most

with high Chinese populations, passed similar legislation to prohibit the public use of

Chinese smoking opium. In the spirit of the Pure Food and Drug Act, in 1907,

California’s state legislature voted to amend the California Pharmacy and Poison Act

to state that it was illegal to sell opiates without a prescription. The Poison Act was

made trivial in 1909, when California passed a law that banned the mere possession of

opium, and soon after passed a ban on opium paraphernalia of any kind. According to

drug policy historian Dale Gieringer, this created a new class of criminal that had not

previously existed: the illegal drug consumer.226 Throughout the early progressive era

California would stay ahead of the regulatory curve, banning all narcotics with the

passage of the Poison Act of 1913.

So, while regulative narcotics legislation in California was successful during the

early 20th century, it was not always as effective in creating less as it supporters hoped

or thought that it would be. California proved to be a test case, only in the amount of

majority support the country showed, the issue with which Wright struggled, was that

he must garner support from Congress fervently enough that they felt compelled to

vote in a way that expanded their power further than it had ever reached before in the

state, the object of police power is to protect rights from the assaults of others, not to banish sin

from the world or make men moral.” This is an example of natural law, where men are born

with certain rights, no matter where they are born, or in instance of the ruling court, even if they

are born alone.

Throughout California, agents raided densely packed Chinese communities and burned private opium

dens, incinerating the illegal opium and paraphernalia. This was seen as devastating policy toward Chinese

immigrants because, as the LA Times reported on August 17 of 1909, "dozens of them are dying monthly because

forced to abstain from the 'dream pipe'." While the delegates to the California legislature felt they were ridding their

state of the evils of opium, they were causing the opium-addicted Chinese inhabitants to involuntarily quit using the

drug cold turkey. Due to the circumstances that surrounded the suffering Chinese, as well as a general demand for

the previously legal substance, it was apparent that the drug was not less commonly used but merely an object now

made available for its patrons on the black market of California.226 Gieringer, “The Opium Exclusion Act of 1909.”



77

history of the United States, a power some were not sure the federal government even

possessed.

The Opium Eaters

In order to get Congress to agree to the legislation that Wright desired, he

needed to accentuate just how dangerous opium was, and so he embarked on a

nationwide study of the use of opium in America to convince it.227 In an interview

with the New York Times in 1911, Wright publicized some of his findings, saying:

Opium, the most pernicious drug known to humanity, is surrounded, in thiscountry, with far fewer safeguards than any other nation in Europe fences itwith. China now guards it with much greater care than we do; Japan preserves

her people from it far more intelligently than we do ours, who can buy it, inalmost any form, in every tenth one of our drug stores. Our physicians use itrecklessly in remedies and thus become responsible for making numberless'dope fiends,' and in uncounted nostrums offered everywhere for sale it figures,in habit-forming quantities without restriction…The contrast betweenEuropean and American professional ethics in this matter is deplorable, and thedark side of the picture is America's. A proportion of our doctors and a muchlarger ratio of our druggists regard their liberty to prescribe and sell as a licenseto advise and furnish to its victims the narcotic curse on demand.228

Wright went on, describing the effects that those addicts have had on the nation, “Our

prisons and our hospitals are full of victims of it, it has robbed ten thousand business men

of moral sense.” This statement reflected the progressive sentiment regarding business

at the time; it had gone “unguarded and uncontrolled by the Nation,” the Progressive

Party inserted into its platform one year after Wright’s interview. Wright went on to

say that opium, just like unregulated business, made people into “beasts who prey

upon their fellows.”229 “Our people through these facts, and carelessness, ignorance,

and want of foresight by the Federal Government,” he affirmed. “We (citizens of the

227 Musto, 127.228

Edward Marshall, “Uncle Sam is the Worlds Worse Opium Fiend,” New York Times, March 12, 1911,

http://www.druglibrary.org/schaffer/History/e1910/worstfiend.htm229 Ibid., He also said that “unidentified it has become one of the most fertile causes of unhappiness and sin

in the United States, if not the cause which can be charged with more of both than any other.”



78

United States) are literally the world's opium eaters,” he said, encouraging the United

States to take the lead in the world on the narcotics issue, which it soon would.

Much like the radical prohibitionists of the temperance movement in the 19th

century, Wright did not want to accept the passage of any type of law that seemed to

compromise with the problem of opium or that made the United States seem deceitful

or weak, as America had signed and ratified an international treaty in 1913 promising

that federal legislation would be passed to regulate opium. This treaty came out of

this first International Opium Convention, which took place at The Hague in the

Netherlands in 1911-12. Brent and Wright were once again appointed as the American

delegates, and this time they were joined by the engineer of the California anti-

narcotic movement. Henry Finger was a member of the California Board of Pharmacy,

and the most influential person in that state associated with narcotics reform: it is his

voice at the Hague Convention that first proposed the regulation of cannabis, a reform

that had not been brought up in any previous international discussions.

California was subject to a “large influx of Hindoos” that, as Finger believed,

initiated “whites into the habit.”230 The representatives of the United States, including

230

David Musto. "The History of the Marihuana Tax Act of 1937". Arch. Gen. Psychiat. February,1972. The rise of industrialization in America at the turn of the century caused two trends that would

have a major impact on America in the 20th century: immigration and urbanization. All three were

crucial in creating an opportunity for progressivism’s entrance into American politics and in

formulating certain arguments for the reformation of substance legislation, alcohol and other narcotics.

Individuals who succumbed to the temptation of alcohol were seen as destroying not only themselves

but were also contributing to society’s ruin. As America’s economy became more industrialized, there

was a massive influx of immigrants into the port cities searching for the newly created jobs. Many of

the reformers believed that these immigrants worsened the alcohol problem in America, further

impairing society’s potential progress. Although mainly used in the south, race had always been

somewhat a part of the temperance argument, but the increasing immigrant population in the north

amplified the rhetoric of reform and was came to be utilized by the entire movement. Narcotics were

used by a much smaller percentage of the population in the early 20th century comparatively and so the

reformers had to anticipate the social problems it would cause. Narcotics like opium and cocaine were

thought to be limited to certain parts of the population: African Americans, and immigrants from



79

Hamilton Wright who was the leader of the U.S. delegation, fully supported this but it

lacked support from the rest of the Convention. As a consolation, the nations agreed to

investigate whether the drug warranted regulation.231 They worked with the eleven

other nations, missing only Austria-Hungary from the previous International Opium

Commission of three years earlier, toward an agreement that would require the

signatory nations “take measures to prohibit, as regards their internal trade, the

delivery of morphine, cocaine, and their respective salts to any unauthorized

persons.”232

The Convention designation of the meeting, as well the treaty agreed to by the

attending nations, meant that domestic legislation would have to be passed to comply

with the treaty’s terms and since it had to then be ratified by the Senate, Wright felt

that the United States would be legally bound to enact some sort of federal law to

regulate narcotics. The agreement at the Shanghai meeting was not a treaty and

therefore did not command enough respect by Congress to actually force any federal

legislative action. The Hague Treaty was put into effect on the last day of 1914, the

requirements of the treaty combined with the fact that the United States had actually

ratified it, played a major role in shaping the Harrison Narcotics Act, which Wright

helped to ensure passage of one year after ratification of the Hague treaty.233

Hamm states that reformers during the progressive era who desired federal

action to be taken on their behalf “hung their proposals on certain constitutional

hooks,” which meant that the federal government was just “beginning the transition

from essentially decentralized system… to one in which real power was centralized in

the national government.” Reformers, of which Wright can be considered, could

Mexico and Asia. Immigrants and racial tensions were major aspects of the rhetoric used to drive both

movements. Nearly the same rhetoric was used in the call for narcotics policy reform.

231 Musto, “The History of the Marihuana Tax Act of 1937”232

Musto, 52.233 The Cyclopedia of Temperance, Prohibition, and Morals mistakenly predicts that the “enactment of the

antidrug law by the federal government taking effect March 1, 1915, seems to be at least the beginning of the end of

the use of opium in America”



80

utilize five federal powers prescribed by the Constitution to achieve federal reform

legislation. Hamm stated that the federal tax power was the one primarily used by the

anti-narcotics movement in the early 20th century to pass the Harrison Act, but the

treaty power also was a major factor.234 In an attempt to achieve this federal reform,

and evading the constraints of the Constitution in the process, Wright decided to draft

his anti-narcotics bill as a tax law. He had enjoyed little success when he argued that

the agreements of the Hague Convention prescribed that federal regulations must be

placed on narcotics in order for the treaty to be fulfilled. The Supreme Court, in 1916,

ruled that federal regulation was not required to fulfill the treaty.235 At that point, it

was inconsequential whether federal regulation was required, because Wright had

used the taxing power of Congress two years prior to the ruling as his final solution.

The Harrison act was sponsored by Representative Francis Burton Harrison

from New York, and Representative James R. Mann from Illinois. William Jennings

Bryan was also one of its main proponents Representative Mann had gained

notoriety for sponsoring and passing the “White Slave Act” in 1910. This bill was an

omnibus federal anti-prostitution measure that was rested its constitutionality on

treaty and commerce power. The United States ratified the White Slave Treaty in 1908,

which required Congress to enact domestic legislation to fulfill its requirements. The

way in which the Mann Act pushed through Congress, and the constitutional

arguments that were made for it, closely paralleled the efforts made for the Harrison

Act’s passage.236 All involved in the debate recognize the potential unconstitutionality

of such a law under the Commerce Clause.

234 Hamm, 9 n.12, tax power; Kurt Hohenstein, “Just What the Doctor Ordered,” 236, Treaty 235

The actual banning of all narcotics was ruled as not within the scope of Congress’ Constitutional power,

so though a treaty had been signed its language could not over rule the constraints of Constitutional power, the

Harrison Act’s enforcement would be done by the Department of the Treasury, they would act on the legislation of

Congress who levied a tax on narcotics. The trivial goal which gave it Constitutionality was the revenue it would

raise, the larger goal was to limit the access to narcotics by requiring registrations, taxes, prescriptions, licenses, etc.236 Hamm, 196; Musto, 63.



81

During the debates, Representative Harrison cited the Supreme Court’s ruling

in Champion v. Ames, which granted Congress wide latitude to regulate commerce

between the states and could be construed to prohibit commerce in certain cases.237

After citing this precedent in defense of the act, one congressman stood up and asked

Mann the following question:

Does the gentleman believe that the Constitution construed as a whole evercontemplated that Congress would exercise either of those powers in theexercise of a police power? The purpose of this bill—and we are all insympathy with it—East to prevent the use of opium in United States,destructive as it is of human happiness and human life; but the question now iswhether or not the purpose you desire to breach is a purpose that would bepermitted under any clause of the Constitution.238

Mann and other supporters of the Harrison Act defended it as a way to

organize and tax commerce related to narcotics. Its title was:

"An Act to provide for the registration of, with collectors of internal revenue,and to impose a special tax upon all persons who produce, import,manufacture, compound, deal in, dispense, sell, distribute, or give away opiumor coca leaves, their salts, derivatives, or preparations, and for other purposes."

This required that all parties including the druggist, physician, doctor,

manufacturer, and importer of the drug be licensed to engage in their role, by paying a

tax enforced by the Department of the Treasury. Manufacturers of “patent” medicines

were exempt from the licensure and the tax, so long as they sold “preparations and

remedies which do not contain more than two grains of opium, or more than one-

fourth of a grain of morphine, or more than one-eighth of a grain of heroin in one

avoirdupois ounce."239 It was unlawful for anyone else that did not pay the tax to,

“produce, import, manufacture, compound, deal in, dispense, sell, distribute, any of

the aforesaid drugs” if they did not pay the tax and register themselves with the

government.240

237 Hohenstein, 237. 238

U.S. Congressional Record 63, Session 1, June 26, 1913, 2193; quoted in Hohenstein, 237239 Harrison Narcotics Tax Act of 1914, 17 December 1914240 That the Harrison Narcotics Act was drafted as a revenue tax makes it similar to alcohol legilsation in

the 1840’s, while prohibition was still over fifty years down the road. In the License Cases mentioned on p. 17, the



82

The act was defended as a law that did not regulate the sale of small quantities

of a substance, but was a way for large quantities of a now regulated narcotic

substance to be taxed and kept track of, but was careful to make exception doctor’s

prescription rights and the supplier to the doctor.241 Wilson signed the Harrison

Narcotics Bill into law on December 17, 1914. At the time, it may not have appeared

that this act had nearly enough regulatory power to be the foundation to the all out

prohibition of narcotics, but with the a few important Supreme Court decisions that

was exactly what happened.

In the beginning of the Harrison Act’s enforcement, most physicians were

unclear about the requirements asked of them and their patients in legally prescribing

these regulated narcotics. In 1916, Dr. Jin Fuey Moy had registered under the

provisions of the act and prescribed his patient, Willie Martin, who had not registered

under the act, opium for his own use. The question brought to the Supreme Court by

the state was, ‘Is receiving and using a prescription an action defined under the

commerce stipulations of the act, and does a patient receiving a prescription engage in

the commerce of the narcotic?’

The Chief Justice, Oliver Wendell Holmes, wrote the majority opinion that

being in being prescribed a narcotic one does not “produce, import, manufacture,

compound, deal in, dispense, sell, distribute, or give away” that said narcotic, but

merely “possesses and uses” it. This strict reading of the language of the act was not

well received by the Bureau of Narcotics, the agency given the task of enforcing

adherence to the act.242 The head of the Treasury Department said of it:

prohibition laws were upheld and compared to taxes by the Supreme Court. According to Clement Sites: “Under a

taxing system on the other hand the position of the commonwealth government toward a town which votes local

prohibition is more nearly analogous to that of the United States government toward a prohibition commonwealthIn the decision in the License Tax Cases which arose out of the collection of United States internal revenue taxes

from liquor dealers when the traffic was prohibited in Massachusetts Chief Justice Chase said ‘There is nothing

hostile or contradictory therefore in the acts of Congress to the legislation of the State What the latter prohibits the

former if the business is found existing notwithstanding the prohibition discourages by taxation The two lines of

legislation proceed in the same direction and tend to the same result.’" Sites, Clement Moore Lacey. Centralized

Administration of Liquor Laws in the American Commonwealths . New York: Methodist Pub. House, 1899.241 Musto, 129.242 Musto, 129; Hohenstein, 243. The Treasury was the agency actually regulating it and the Bureau of

Narcotics was .



83

This decision makes it practically impossible to control the illicit traffic innarcotic drugs by unregistered persons, as the mere possession of any quantityof drugs is not evidence of violation, and therefore the government is forced toprove in every case, even where the circumstances indicate say on dispensing,actual sales by this class of offenders which it has been found difficult to do.243

The strict interpretation of the Harrison Act that the court had used in 1916 evolved

within the next few years, and it eventually became the federal government’s policy to

eliminate the nonmedical use of all narcotics.

The Beginnings of Federal Narcotics Prohibition

The two cases of note following the Jin Fuey Moy ruling were United States v.

Doremus and Webb v. United States. Each of these cases paved the way to give sweeping

power to Congress, and in the second ruling Congress gained a place inside the

physician’s office as well as a voice in the treatment of patients. Doremus was a

physician charged with breaking the Harrison Narcotics Act for selling five hundred

one-sixth grain pills without a written order on a form issued on the blank authorizing

the sale of them from the Collector of Internal Revenue. He was also charged with

giving five hundred one-sixth grain heroin tablets to a patient who was commonly

known as a “dope fiend,” without obtaining a form from the Collector of Internal

Revenue, because though he was a registered doctor under the act the amount he

prescribed to Ameris was enough that they believed that Ameris could sell the extra

thereby withholding revenue from the government. So, although Doremus had paid

the tax and was registered with the government as a doctor, the court judged that the

amount he prescribed allowed for it to be sold by an unregistered dealer to an

unregistered buyer. The most important constitutional question that the case raised

was, “Does section two ⎯

which restricts the sale and commerce of drugs to the dealers,

243 W.C. Fitts, Assitant Attorney General to Senator William Calder, Nov. 2, 1917. Quoted in Musto, 131.



84

doctors, and patients given prescriptions by a doctor in his professional practice ⎯ aim

to raise revenue by imposing all of these restrictions?” 244

The stringent restrictions were defended as a means of raising revenue because

the court felt that these professions tend to not attempt to hide their business from thegovernment as much as unauthorized dealers who under this policy are thought to

have less of an opportunity to sell drugs and hide income. Now, Doremus had come to

the Supreme Court after his District Court had ruled the Harrison Act unconstitutional.

In a 5-4 split, while the Chief Justice was in dissent because he believed that the act

federally violated the state’s right to policing power, the small majority of the court

upheld the constitutionality of the Harrison Act by a slim margin. This decision was

made on March 3, 1919 and later that same day a similar case would be decided, but

the ruling would expand federal power even further than the ruling in Doremus.

The case of Webb v. United States had come to the Supreme Court from the Sixth

Circuit Court of Appeals for the Sixth Circuit, meaning this case originated in the

Western District of Tennessee. The two defendants, Webb and Goldbaum, a doctor

and druggist respectively, had been using the order blanks system though the

Controller of Internal Revenue. Webb would prescribe the narcotic to an addicted user

upon the first prescription and then, ignoring the common practice of re-evaluation

and a lower dosage prescribed, furnish the same prescriptions to the addict.

Goldbaum, who was accustomed to this procedure, filled the “prescriptions” of

Webb’s patients in a manner to furnish the addiction, while those without the

physician’s prescription would be given an amount aiming to cure the addiction. The

Circuit Court asked three questions to the Supreme Court, but the third question,

because of its negative answer, is the only question material to the case. The Circuit

Court asked the high court:

“If a practicing and registered physician issues an order for morphine to anhabitual user thereof, the order not being issued by him in the course of

244 Decisions of United States Supreme Court Construing Harrison Narcotic Act Source: Public Health

Reports (1896-1970), Vol. 37, No. 32 (Aug. 11, 1922), pp. 1950-1954 Association of Schools of Public Health,:

http://www.jstor.org/stable/4576476.



85

professional treatment in the attempted cure of the habit, but being issued forthe purpose of providing the user with morphine sufficient to keep himcomfortable by maintaining his customary use, is such order a physician'sprescription under exception (b) of section 2?'

In the same fashion as the decision of Doremus, the court felt that the answer tothis question was negative and this resulted in a 5-4 split decision in favor of the

Harrison Act. The Chief Justice of the Supreme Court was again in the minority,

claiming that for the same reasons he was in the dissent in Doremus case he must also

be in the dissent for this case involving Webb and Goldbaum. The court’s decision in

the Webb case did two things; it established a precedent that would be applied in future

cases concerning the reach of the federal police power, and it granted Congress the

power to regulate procedures inside the doctor’s office as well as what was prescribedin “good faith.”

Six years after the Harrison Act became law, and one year after the Eighteenth

Amendment became effective, the Supreme Court clarified what exactly the federal

government’s power was with regards to the enforcement of narcotics regulations. In

Whipple v. Martinson, the justices declared:

"There can be no question of the authority of the State in the exercise of its

police power to regulate the administration, sale, prescription, and use ofdangerous and habit-forming drugs....

The right to exercise this power is so manifest in the interest of public healthand welfare, that it is unnecessary to enter upon a discussion of it beyondsaying that it is too firmly established to be successfully called in question.”

As one scholar has put it, “In 1914, trading in and using drugs was a right. In 1915,

limited federal drug controls were a constitutionally questionable tax revenue

measure. By 1921, the federal government had gained not only complete control over

so-called dangerous drugs, but also a quasi-papal immunity to legal challenge of its

authority.”245 The Harrison Act was becoming interpreted to include powers that

cannot be found in its text—as if it were a living, evolving document.

245 Thomas Szasz,



86



87

CONCLUSION

Why was it necessary to amend the Constitution so Congress would have the

power to prohibit the intrastate commerce of a particular substance in 1919 and such

an amendment was not required for the prohibition of other substances? This was the

question that prompted our investigation of the origins of federal alcohol and

narcotics regulations. It was raised by a juror during a trial concerning the Controlled

Substances Act and answered by a judge who said the Supreme Court had interpreted

the Commerce Clause, “to extend to enacting laws with respect to contraband,

including contraband laws.”246 The court’s decision in the case to which he was

referring, Raich v. Gonzalez, revealed two points of importance that had to be dealt

with in answering such a question.

First, the court recognized that after “the first century of our history…in

response to rapid industrial development and an increasingly interdependent national

economy, Congress ‘ushered in a new era of federal regulation under the commerce

power.’” “[O]ur understanding of the reach of the Commerce Clause,” the court states,

“as well as Congress’ assertion of authority thereunder, has evolved over time.”

Second, it recognized that the Controlled Substances Act was not “Congress’ first

attempt to regulate the national market in drugs.”247 The federal government’s policy

of regulating narcotics to the extent of prohibition began with the Harrison Narcotics

Act, which began at the same time that the Eighteenth Amendment was in effect.

Although not written as prohibitory legislation, the Harrison Act was used to prohibit

opiates and cocaine in a way analogous to how alcohol was prohibited in the 1920s,

but why was it understood to be constitutional?

The simplest explanation seems to be that there was not the controversy

surrounding Congress’s regulation of narcotics like there was around alcohol. Many

246Gonzales v. Raich, 545 U.S. 1 (2005); Wickard v. Filburn, 317 U.S. 111 (1942); U.S. v. Lopez, 514 U.S. 549

(1995).247 Gonzales v. Raich (2005). http://www.law.cornell.edu/supct/html/03-1454.ZO.html



88

believe this to be the main reason that the court never found the Harrison Narcotics

Act unconstitutional, as Musto says, “in the case of narcotics the consensus was almost

absolute; everyone appeared to agree on the evils of these drugs. For alcohol, there

was no such agreement.”248 Although true, this explanation is incomplete. Congress

acknowledged that it needed the constitutional authority to prohibit alcohol but

allowed narcotics to be regulated in virtually the same way, but it acknowledged the

constitutional problems of doing this during debates over the bill249 The main

difference between the antinarcotics and anti-alcohol legislation enacted during that

time (besides the different substances they were to regulate) was the way in which

they were enacted. The Eighteenth Amendment and the Harrison Narcotics Act were

both made into law according to progressive political theory, but the paths taken to

achieve passage of both were very different. It was how those two distinct paths

interacted with the progressive transformation that was taking place in the American

constitutional system that accounted for the different outcomes.

The temperance movement had a long history before the progressive

movement of the late 19th century paved the way for the 18th Amendment’s passage.

The temperance movement operated during that time with an understanding that the

Constitution would need to be amended if their goal of nationwide prohibition was to

be realized. In the 1890s, the Anti-Saloon League adopted more pragmatic methods of

promoting temperance than had been used by its predecessors; the Women’s Christian

Temperance Union and the Prohibition Party. This coincided with the rise of the

progressive movement and the gradual progression towards a new understanding of

law and government. The ideas of the progressives emphasized the use of positive

law and government to promote the welfare of society.250 The progressive movement

248 Musto, The American Disease, 297.249 Hohenstein, 248. The same agency in the Treasury Department was used to enforce the Harrison Act as

was used for alcohol prohibition.250 This shift is seen visibly in the two California Supreme Court decisions on opium cases. One case occurs

during the pre-progressive era, in 1887, and the other during the progressive era, in 1911. In this 24 year period the

Supreme Court of California has shifted its entire understanding of government’s purpose. In 1887, it sees the

policing power of the states as something used to protect the rights of one person from being taken away by another,

not a power used to rid the world of sin. In 1911 when judging Yun Quong, the ruling judge is so busy protecting



89

worked towards changing the practices of government, while the temperance

movement was working towards the eventual implementation of prohibition. They

both were willing to compromise in pursuit of their goals. The progressive movement

knew that small reforms would eventually swell into a complete alteration of

American government, while the temperance movement realized that small legislative

reforms could eventually swell into the complete prohibition of alcohol.

These small reforms achieved by the temperance movement were the Wilson

Law, and more importantly the Webb-Canyon Act. The Supreme Court, until the end

of the 19th century, had nullified any prohibition laws that states placed on themselves.

These decisions were the necessary steps towards amending the Constitution to

granting Congress the legal right to regulate the possession of alcohol within the states,

a right that they did not previously have. These measures culminated in the passage

of the 18th Amendment when the temperance movement reached the pinnacle of its

third wave in American history.

The progressives had gained enough power to pass the amendment allowing

them to ban the possession of alcohol, a goal the temperance movement had since the

1870’s. Alcohol prohibitionists had desired a Constitutional amendment in order to

work within the confines of the original constraints the Constitution put on federal

power. While they compromised this thinking in the early 1900’s, it was merely done

to further their advance towards their end goal; it was not a surrender of their old

reform ideas that were bound to the constraints of the Constitution. Henry William

Blair expressed the sentiment that was held by the temperance movement through the

Eighteenth Amendment’s passage when, in 1888, he wrote in regards to the Supreme

Court’s nullification of state prohibition laws:

[S]o long as the constitution and laws of the United States guarantee the safeimportation and transportation of alcoholic beverages in the original packagesthrough the ports and over the avenues of interstate commerce of this countrythe extinction or substantial restraint of the evil is impossible If the demand didnot already exist local laws and public opinion might perhaps suffice but not

Quong from opium, and making sure everyone feels equal in relation to everyone else, that in the end of his

argument he seems to conclude that an individual, by himself, possesses no rights at all.



90

now when every hamlet and some inmate of almost every house in the wholeland is cursed by unnatural desire…There will never be any substantial andpermanent temperance reform in this country so far as the same is dependentupon law until the sporadic efforts of States and sections are made to convergeupon the real citadel of the rum curse which is the national constitution.251

While temperance became a progressive issue and was driven by a progressive theory

of government’s purpose, it remained attached to pre-progressive methods of

implementing its reform goals. The progressive movement not only provided the

theory behind narcotics prohibition, but it provided the means for which it could be

enacted. It was not merely that regulating narcotics was much less controversial than

regulating alcohol, although this was important.

On the surface, the swift enactment of narcotics-related reforms seemed to

show that using statutory methods was much more effective and efficient; this claim is

almost surely true. Narcotics reform did have the benefit of being in its infancy at the

same time as progressivism; its development was beginning at the turn of the 20th

century and progressivism would spread throughout the United States within a

decade. As progressivism gained power, both the temperance and narcotics

movements used the progressive constituency to further their reform goals. It is

possible that the federal government could have implemented the statutory

prohibition of alcohol if the temperance movement had not taken such quick

advantage of the circumstances presented to it in 1919.

The progressives did not see amending the Constitution as necessary in their

push to enact their reform agenda. They would use a constitutional amendment, but

only if doing so was absolutely necessary. The temperance movement believed that it

was necessary, while it was not necessary for antinarcotics legislation. If the United

States was as far behind as progressives believed she was, then they must attempt to

work in the most politically pragmatic ways in order to realize all the reforms that

they wished for. As Wilson said, “we have not kept up with our changes of conditions,

either in the economic field or in the political field. We have not kept up as well as

251 Blair, 379.



91

other nations have. We have not kept our practices adjusted to the facts of the case.”252

Progressives like him and Theodore Roosevelt could not be limited to the powers

enumerated by the Constitution if they were to implement such changes.

In 1914, the commerce, taxation, and treaty powers were used to justify the

Harrison Act’s passage, which evolved into narcotics prohibition today. The fact that

it was written as a tax law illustrates that Congress did not necessarily believe they

possessed the power to regulate or prohibit narcotics, as it did not think it had this

power over alcohol without a constitutional amendment. It was written as a tax

measure to “avoid potential constitutional conflict.”253 The understanding of

American constitutional government was just beginning to emerge, which means,

according to Hamm, that “the reformers faced a polity with rules that often proscribed

their actions but that had enough flexibility to allow them to achieve their ends.”254

Thus, the Harrison Narcotics Act was written so as not to unabashedly violate the

Constitution. However, the Treasury Department enforced it to its extreme limits and

the Supreme Court upheld this level of enforcement. The Harrison Narcotics Act was

designed by progressive reformers, such as Hamilton Wright, who intended for it to

become “ a moral prescription that would increasingly limit and eradicate the drug

curse that they envisioned as the root of many social ills.”255

The political transformation initiated by the progressive movement was

gradual in changing how Americans understood the federal government and the

federal government’s power. “The abandonment of the political philosophy upon

which constitutionalism rested,” states John Marini, “could not have but a profound

effect upon the structure and functioning of the institutions in a regime which is

derived from it.”256 The temperance movement culminated early in that transformation,

252 Some of the other reforms Wilson desired: to create the Federal Reserve, deal with corporate anti-trust,

tariff policy, promote labor policy, take over the railroads, pass a Sedition Act, institute the first conscription

legislation, and pass the first regulatory narcotics bill.253 Hohenstein, 232.254

Hamm, 6.255 Hohenstein, 253.256 John Mirani and Ken Masugi, The Progressive Revolution in Politics and Political Science: Transforming the

American Regime [Lanham: Rowman and Littlefield Publishers, Inc., 2005], 3.



92

using its political power to take an advantage of the situation, and passed the

Eighteenth Amendment in 1919. The temperance movement had centuries of history

and reached its apex during the beginnings of progressive thought, while the anti-

narcotics movement began during the progressive transformation and evolved

alongside progressive reform. Progressivism always targeted gradual reform and

aimed to use these changes as a way to alter how government was thought of in the

United States.

The main reason for the different legal treatments of alcohol and narcotics was

this transformation of American government and its purpose. The ways in which the

Harrison Narcotics Act and the 18th amendment were enacted differed greatly, but the

theory behind them was the same. The progressive movement inserted an idea into

the American system that was completely contrary to that which the nation was

founded upon. The government’s structure laid out by the Constitution, however,

remained the same as the transformation was happening. The change came very

gradually. In fact, it is still taking place, as American government does not operate

according to the principles of the founders or the progressivisms. It has been described

as “an incoherent blend of both.” This observation may help us understand why

alcohol prohibition and narcotics prohibition cannot be fully in regards to the

constitutional validity of the two policies. “When it comes to theory or science,

incoherence is always a vice,” West says, “But in practical affairs, incoherence has its

virtues.”257

257 Thomas West, “Progressivism and the Transformation of American Government,” Progressive

Revolution…23



93



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