Mirror of Justice

A blog dedicated to the development of Catholic legal theory.

Monday, October 21, 2013

Esolen on Prohibition

I've blogged before about the fact that one of my favorite books in recent years is Daniel Okrent's Last Call:  The Rise and Fall of Prohibition (here).  Prohibition, as a policy and constitutional experiment, was a huge failure, but not simply because (as Anthony Esolen explains, here, at Public Discourse) it failed to reduce alcohol consumption or because "you can't legislate morality."  It did, and we "legislate morality" all the time.  Prohibition's lessons are, in turns out -- in Okrent's book and in Esolen's essay -- more interesting.  Here's a bit from the latter:  

So, then, what does Prohibition teach us? 

That amendment inserted into the Constitution a law that neither protected fundamental rights nor adjusted the mechanics of governance. It was a radical break from tradition. It is crucial to understand this. It took a juridical break from tradition to obliterate the customs, the lived traditions, of the American people and their forebears. . . .


Garnett, Rick | Permalink


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This is the best argument I've read against certain Prohibition policies, particularly in the distinction between prohibiting per se evils (like pornography) and potentially innocent activities (like making and drinking wine).

It would seem that prohibiting pornography would not have the same sorts of destructive effects on the common good the way that prohibition of alcohol had, and the way that the prohibition of narcotics has had on America's inner cities and on the border towns (e.g. Juarez, Nogales, TJ).

But without prohibition on potentially innocent activities, we wouldn't have great modern American theater with movies like Goodfellas or shows like Breaking Bad.

Posted by: ck | Oct 21, 2013 5:07:21 PM

The 13A and 14A were also "breaks from tradition" and as Justice Ginsburg said in her Shelby dissent (Oyez.com has the opinion announcements up for the cases from last term, which is why this comes to mind) they were important shift to trusting the national government more over the local. So, what we have to determine is if the break is CORRECT and worth it.

I agree "legislating morality" is too broad -- the test there is what sorts of personal morality should be left to the individual. Traditionally, which again is a rebuttable presumption, this included alcohol consumption. The amendment was also overkill -- many supporters thought only hard liquor would be covered. They were temperance supporters; not abolitionists. But, locally, there was some tradition of prohibition. They were misguided too.

The concern was that alcohol was akin to slavery -- so wrong that it had to be severely limited (mere possession wasn't banned) for a range of reasons, including because of the harm to women (affecting their rights too). There is also a comment about the evils of pornography there. I don't want to debate that. But, certain religions oppose alcohol. It is seen as against God's will.

Posted by: Joe | Oct 23, 2013 3:01:38 PM