Why I love the 18th Amendment

No, really.

I know that some readers (especially those who've read the 18th Amendment) might be startled by the title of this post, because I make no secret of my opposition to Prohibition, and let's face it, the 18th Amendment was all about Prohibition. Here's the text:

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

My reaction?

I think the above is incredibly cool! So cool, in fact, that the more I think about it, the more I feel like starting the Eighteenth Amendment Society. Such a thing has been mentioned, but only as a sarcastic reference. Well I'm serious, damn it!

Now why on earth would I say that? How could I, an avowed libertarian, admire any restriction on American freedom?

Lest anyone imagine I've had a change of heart, I am as resolutely opposed to government prohibition of substances as ever. The reason I love the 18th Amendment is not because it prohibits alcohol, but because by its existence, it's the telltale amendment.

Even though it's been repealed, the fact of its existence lets us in on a dirty secret:

The Constitution once meant what it said.

(You know, the old, outmoded stuff like "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved for the States respectively, or to the people.")

At least, the Constitution still meant what it said on on January 16, 1919 -- the date the 18th Amendment was ratified.

(Alas, I missed its glorious anniversary! I was so busy enjoying Martin Luther King's birthday the day before that I just plumb forgot.)


Today, if the people who think they're running the United States according to the Constitution wanted to enact prohibition of alcohol, they wouldn't need no stinkin' amendment. They'd simply tack on the magic words -- "in or affecting interstate commerce."

The manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes, in or affecting interstate commerce, is hereby prohibited.
I find myself wondering how many of the shrinking minority of American students who still learn civics have ever read the 18th Amendment. How many citizens know that the Constitution was once considered important enough that in order to be disregarded, it had to be amended? That's the real message of the 18th Amendment.

Or am I advocating "Originalism"?

(I hate to sound cynical, but right now, the 18th Amendment looks very much like a "noble experiment" after all.)

MORE: Ilya Somin has an interesting analysis of Originalism, and touches on the amendment process:

To my mind, the biggest problem may be the fact that the US Constitution is so hard to amend through the formal amendment process that there is a real danger that we could be stuck with an original meaning that, although highly beneficial in its time, is dysfunctional today. A weaker objection is the fact that much of the Constitution was not ratified by as broad a supermajority as the McGinnis-Rappaport theory assumes. For example, as Bruce Ackerman has shown in a series of books, the crucial Reconstruction amendments were only ratified by the necessary three quarters of the states because several southern states were essentially coerced into ratifying by the federal government. For these and other reasons, I am not convinced that originalism should be the sole and exclusive method of constitutional interpretation. However, McGinnis and Rappaport's argument - along with similar ones by other scholars - does persuade me that there should at least be a strong presumption in favor of textualism and originalism that should be overridden only in very exceptional cases.
The Telltale Eighteenth Amendment is, I think, a perfect example of how the process was meant to function. If enough people think there's a problem that the federal government lacks the power to solve, and the Constitution stands in the way, amend it.

Maybe this should be called Amendmentism.

posted by Eric on 01.18.07 at 11:51 AM


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