Does history suggest that the US President has the moral right to appoint a new Supreme Court Justice in an election year?
First off, let’s not kid ourselves by using the word ‘moral’ in the same sentence as ‘US President’, especially not in 2020. Appointing a Supreme Court justice has always been a plum to be plucked from the eponymous fruit tree by any incumbent of the Oval Office. With a third appointment looming, President Trump is hoping to have enough fruit for a jar of plum jam before the end of this year.
The answer to the question posed above seems to depend on whether a) the President in question is a Republican or a Democrat b) which party controls the Senate, and c) just how much cynicism and utter shamelessness Senate Majority leader Mitch McConnell (R-Ky) can muster. Given that he didn’t even bother to wait until rigor mortis had set in before announcing that the Senate was ready to replace Ruth Bader Ginsburg by Sunday brunch, his lack of self-reflection runs even deeper than any previous diagnosis indicated.
Back in 2016, according to Senator McConnell, it appears to have been morally repugnant to appoint a Democratic nominee, Merrick Garland, as an Associate Justice of the Supreme Court of the United States (SCOTUS – they do love their acronyms!) in March of a Presidential election year – i.e a full eight months before the 8 November polling date. But, in 2020 it seems to be just dandy to start the same process less than eight weeksbefore another Presidential election.
Of course the two situations are entirely different. The truth can be found in the Chinese Zodiac.
2016 was the Year of the Monkey while 2020 is, with a certain poetic inevitability, the Year of the Rat. Everyone knows that in a Year of the Monkey (1932, 1944, 1956, 1968, 1980, 1992, 2004, 2016) it is not permitted, under an obscure amendment to the US Constitution of which only the senior Senator from Kentucky seems to have had sight, for the incumbent President (provided he is a Democrat) to appoint a new Associate Justice to a Supreme Court vacancy. These rules change completely, however, during any given Year of the Rat (1936, 1948, 1960, 1972, 1984, 1996, 2008, 2020). The Founding Fathers knew exactly what they were doing (as with the right to bear arms against pre-school children and the fabulously democratic Electoral College) when they favoured a rodent over a primate in framing this ‘lost’ amendment to the Constitution. It appears to have been re-discovered by the Senate Majority leader hidden underneath the original document in the National Archives where it had been carelessly placed by an absent-minded Alexander Hamilton who was late for a production meeting with Lin Manuel Miranda. Chapeau Senator!
If Mitch has the brass neck to try and push through Trump’s nominee (probably female and due next week) it will mean the 45th President will have manged three picks in a single term. That would be a good strike rate, but not overly impressive if we look at the history of Supreme Court appointments.
Some Presidents got to nominate a hell of a lot of justices. Obviously George Washington is the Olympic gold medallist in this particular discipline because he appointed all the members of the very first Supreme Court (there were six back then). He has a personal best of eleven appointees over eight years. Franklin Roosevelt comes next, largely because he was in office for most of the 20th century. His PB was nine, over almost a dozen years in the White House. He tried really hard to beat Washington’s total though (see below). William Hoard Taft holds the record for a one-term President with six appointees, before becoming Chief Justice himself (he wasn’t one of his own nominees by the way – he was appointed by half-term President Warren Harding in 1921).
If Trump succeeds in appointing a replacement for Ruth Bader Ginsburg and, in the process, changes the political complexion of the Court for a generation, would a newly elected Joe Biden have any possible comeback? Indeed he would. There have been nine SCOTUS justices on the Supreme Court bench since the passing of the Judiciary Act of 1869 – before that the number varied between six and ten. The total is determined, not by the President, the Court itself, or the Constitution, but by Congress. So, nothing like a time-consuming and unwinnable constitutional amendment (requiring the ratification of 38 states) is needed to change the status quo.
In 1937 Franklin D. Roosevelt, frustrated at having many of his New Deal reforms stymied by adverse Supreme Court decisions against the constitutionality of many of his measures proposed to, in effect, ‘pack’ the Supreme court with a majority of his own nominees. He sought to introduce legislation which might have had the effect of increasing the number of justices to fifteen. He wanted the power to appoint a new justice for every incumbent who opted not to retire at the age of seventy. In this particular political sleight of hand he was thwarted by members of his own party and the exclusive (male) club remained nine strong. It has done so to this day.
However, given the ’tradition’ that Senator McConnell established in 2016 and will conveniently ignore in 2020 (I won’t insult your intelligence by mentioning the Jesuitical reasoning by which he has informed his conscience, so that it allows him to flout his own ‘rules’) it should be in order for President Biden and a Democratic Congress to restore some political balance to the SCOTUS by adding one, or even two new, credible, and suitably qualified posteriors to the bench. That would make up for the SCOTUS pick denied President Obama in 2016, and newly elected President Biden (God that sounds soooo good) in 2020.
And in case you are worried about having an even number on the court if he stops at one new appointee, fear not. In the event of a tied decision all cases go into overtime as the concept of a draw is not recognised in any truly American sport. Actually that’s not true, in the event of a tied vote the decision of the lower court being challenged in the high court, is duly confirmed.
So, even if the handful of Republican Senators who have voiced opposition to a promotion to the SCOTUS during an election year are cajoled, bullied or intimidated into resiling from the position held to so fervently by their own Majority leader in 2016, there are historical precedents for the Supreme Court bench to number more than nine Justices and there is no impediment to Congress adopting that course of action in 2021, the Year of the Ox.
With the UK government currently in the throes of contravening international law it might be instructive to look at a previous occasion on which Brittania ‘waived the rules’ and how this affected Ireland.
While there is a world of difference between the attempt by Boris and Dom to renege on the Brexit deal that helped get Johnson elected in December, and the Dublin executions in the aftermath of the 1916 Easter Rising, both illustrate a predilection for British ‘improvisation’ when it comes to rules and procedures. While the Dublin firing squads of May 1916 might be seen as an understandable British political reaction to a perceived ‘stab in the back’ from the ‘Bolshie Paddies’ they were established with precious little legal cover or legitimacy.
159 men and one woman, adjudged by the British military authorities to have taken a lead in the Easter Rising, were tried by court martial in May 1916. Ninety-three were sentenced to death, fifteen were executed.
What has finally emerged, only within the last two decades, are the actual records of the courts martial. They are, in the main, flimsy documents but in that respect are probably reflective of the cursory nature of the tribunals themselves. They do not always tally with the memories, memoirs and statements of those who took part in the process – including those taken by the Bureau of Military History in the 1940s and 50s – but their release in 2001 added a crucial element to the, often contradictory, narrative of one of the most momentous weeks in the history of Ireland under the Union. They also helped to underscore the lack of legitimacy—on numerous levels—of the tribunals that preceded the firing squads. They offer confirmatory evidence of what had long been surmised, that legal ‘due process’ was not observed by the military authorities in May 1916.
On 25 April the British Cabinet had declared martial law throughout Ireland. The following day a Military Governor, General Sir John Grenfell Maxwell was appointed. He was given ‘full authority to restore order, put down the rebellion and punish its participants’. He took his political masters at their word.
Maxwell first toyed with the idea of trying the ‘ringleaders’ of the Rising under martial law itself. But, in essence, once a military emergency has passed martial law ‘withers’ and the military, in theory at any rate, cannot simply execute prisoners merely because of their involvement in the civil strife which had led to the invocation of martial law in the first place. At least not without a trial. [Not that such niceties had saved the lives of around fifty South African rebels during the Boer War]
In the Bureau of Military History statement of a former admiralty lawyer, 2nd Lt. Alfred Bucknill – later Mr. Justice Bucknill – who had been sent to Ireland as a young man to assist Maxwell, he makes it clear that Prime Minister Herbert Asquith had instructed Maxwell that…
At all costs whatever was done would have to be done legally, there would have to be a complete answer to possible criticism in the House of Commons.
Bucknill was charged with ensuring that Maxwell did what he was told and observed due process. Instead, as the foremost authority on the subject Judge Sean Enright, author of Easter Rising 1916: The Trials, has observed, ‘Unfettered by either law or lawyers, Maxwell was guided by pragmatism’.
In essence Maxwell made up the rules as he went along and was guided in his choices by an affiliation to the military culture of maintaining discipline through the court martial process, even where that contravened natural justice. One of Maxwell’s priorities was the prevention of a recrudescence of rebellion by eliminating the leadership cadre of the rebels. He was there to ‘restore order’, as per his instructions, by culling rather than cuddling.
He quickly decided that his best option was to court-martial the leaders of the insurrection, not under martial law but under the terms of the Defence of the Realm Act. DORA had been passed in September 1914 and augmented on many subsequent occasions by executive order and/or by amending Act of Parliament. It began as an enabling paragraph of legislation and ended with more than 650 pages of regulations.
Bear in mind that while martial law does confer extraordinary powers of arrest and detention on a military government it does not, per se, suspend the normal legal process of trial in open court for the commission of a felony, including the crime of treason-felony. While you might get away with exemplary and illegal punishments in India or South Africa there would be far more scrutiny of the aftermath of a rebellion on Britain’s own doorstep. Maxwell would also have been aware that his actions under martial law would be ‘justiciable’ – in other words he, and others, could be held criminally liable for any extra-legal actions for which they were judged responsible.
Itis important to distinguish between a trial in the aftermath or even in the course of a martial law regime, and a court martial under emergency legislation like the Defence of the Realm Act.
An early provision in the DORA legislation provided for trial of civilians by General Court Martial rather than through the regular courts system. This facility was availed of infrequently.
DORA, based on the rules of the General Court Martial (GCM), called for the creation of
a court with up to thirteen members (and a minimum of five)
a professional judge
a legal advocate,
trials to be conducted openly.
In the case of a court marital of a civilian under DORA the death penalty was not applicable except in the extreme case of ‘assisting the enemy’.
However, the procedure adopted by Maxwell in Dublin in 1916 was closer to that of a ‘drumhead’ court martial of the type normally seen at the battlefront – these were officially known as Field General Courts Martial (FGCM) and they were permitted where a General Court Martial was deemed ‘not practicable’.
But even a more ‘improvisational’ Field General Court Martial, convened at the front in time of war—and primarily conducted in the interests of discipline rather than strict justice— still had procedures of its own laid down in the military rulebook. Even those rather basic rules were not followed by Maxwell in 1916.
The Volunteer leaders were tried by three-judge military courts. This was permissible under FGCM rules, but there were no defence representatives present and all trials were held in camera. This was not permitted even under military law and were certainly not envisioned in DORA legislation.
Furthermore, in the case of verdicts handed down by FGCM’s the office of the Judge Advocate General, based in London, well away from the exigencies of the front, had a right of oversight and could countermand or afford clemency on sight of the court martial transcripts. This did not occur in the case of the 1916 trials. During the later War of Independence (1919-21) the JAG’s office would zealously ensure that it retained its oversight capacity when it came to the sentencing of IRA prisoners.
In addition, there was no mechanism for the judicial appeal of a court martial verdict. The only recourse was to Maxwell himself, who was obliged to confirm or commute the sentences. The military administration had unilaterally seized itself of Lord Lieutenant Wimborne’s powers of clemency in capital cases. Correspondence between Wimborne and Maxwell suggests that the former would only have countenanced the executions of the seven signatories of the 1916 Proclamation and disapproved of the much wider and more controversial blood-letting. As it happens there was no provision under DORA for the removal of the Royal prerogative power of the Lord Lieutenant when it came to clemency exercised on behalf of the monarch. During the War of Independence it was re-asserted, despite the imposition of martial law.
Maxwell’s template might well have seemed appropriate given the circumstances of the rebellion but it still amounted to arbitrary procedure and, in essence, led to summary execution. Even the British Adjutant General, Sir Neville Macready, conceded, for example, that ‘There is no legal justification for a Court Martial to be held in camera, either in the Army Act, or in any regulation under the Defence of the Realm Act.’
Coincidentally, and significantly, four British soldiers were tried for murders committed during the Rising. They were tried by General Court Martial [not FGCM] – that procedure was deemed ‘practicable’ in their cases – and the four were allowed legal representation.
The Easter Rising courts martial took place in Richmond Barracks over a nine-day period, with two trials generally taking place simultaneously. One of the prosecutors was thirty-five-year old 2nd Lieutenant William Evelyn Wylie, a Dublin barrister. Wylie left a record of his participation in the form of a memoir written for his daughter. This was subsequently edited and published by historian Leon O’Broin. It’s an account of Wylie’s increasing disillusionment with the courts martial process. He objected to the trials being conducted in camera and often did his best to mitigate the absence of defence counsel.
‘Prisoner No.1’ Pearse was court-martialled on the afternoon of 2 May. The President of the Court, as was to be the case with most of the prominent leaders of the Rising, was Brigadier General Charles Blackader, a forty-six-year old career soldier who would, shortly thereafter, lead the 38th (Welsh) Division through the horrors of the Somme. Wylie was prosecuting attorney.
Blackader’s involvement was, to say the least, also of dubious legality. Even under the more permissive Field General Court Martial process the rules of procedure specifically excluded presiding officers who had a potential conflict of interest – as commander of 176 Brigade, which included the Sherwood Foresters and which had incurred most of the 1916 British military casualties, Blackader should have stood down. The same was true of the president of the parallel court martial, Colonel Ernest Maconchy – a native of Longford – who was the CO of the Sherwood Foresters. Both men had egregious conflicts of interest and should not have been permitted to participate in the courts martial process.
A veneer of legality was retained in this respect by the fact that the members of the court ritually identified themselves to each of the prisoners prior to their court martial. The prisoners had the right to object to any of the officers presiding over their cases. But, at least as far as is revealed in the transcripts, at no point was the significance of this right explained to the prisoners.
Pearse, pleaded not guilty to the charge that he ‘ … did take part in an armed rebellion and in the waging of war against His Majesty the King such act being of such a nature as to be calculated to be prejudicial to the Defence of the Realm and being done with the intention and for the purpose of assisting the enemy’.
The latter element of the charge was crucial – as civilians, none of those being court-martialled could legitimately be executed without proof that they had consorted with Germany. The charge of colluding with the enemy was, in the circumstances, not as easy to establish as it sounds. It required direct and convincing testimony or clear documentary evidence. In reality, however, these were in camera tribunals where the military authorities could, in effect, do whatever they wanted, however dubious the evidence. Maxwell had seen to that.
The transcript of Pearse’s court martial reveals, however, that he admitted collusion – he referred to having opened negotiations with Germany. Included in Pearse’s file is a letter written to his mother written from prison after the collapse of the Rising. It runs to four pages. Included at the top of Page 1 is a post-script which reads ‘
P.S. I understand that the German Expedition which I was counting on actually set sail but was defeated by the British’
It was an admission that legally entitled the court martial to sentence Pearse to death. However, it appears to have been equally significant for others similarly charged.
At no point in any of the other transcripts, or the individual files associated with those court-martialled, is any reference made to ‘assisting the enemy’, other than the reading out of the original charge. There is no indication in the transcripts that the presiding officers indicated to the prisoners the importance of that particular element of the charge. In fact, it is clear from the transcripts that the only evidence taken by the courts martial was designed to satisfy the presiding officers that the prisoner had, indeed, taken part in the rising. All the prosecution testimony recorded is identification evidence.
In fact, in a number of instances, prisoners specifically refer to the charge of collusion and, in unsworn statements [they were not allowed to give sworn evidence on their own behalf] denied any such involvement. Ned Daly told his court martial that ‘The reason I pleaded “not guilty” was because I had no dealings with any outside forces …’
It is clear from John MacBride’s own statement, as well as corroborating sworn defence witness evidence, that he joined the rebellion at the last minute, was not a member of the Volunteers and, therefore, could not have conspired to collude with Germany. That did not prevent him being found guilty and executed.
However, it appears that the courts martial took the view that the Pearse postscript – which, it is often argued, he may well have been appended to guarantee his own execution – was used, without any overt reference to that fact, in all subsequent cases and became a convenient fig leaf which allowed the presiding officers to hand down death sentences on 93 prisoners.
Significantly Blackader appears in the case of the second court martial, that of Thomas MacDonagh, to be looking for an alternative to the Pearse postscript, in order to sentence the prisoner to death by establishing collusion with Germany.
After MacDonagh had been arraigned Blackader had asked Wylie to produce a copy of the 1916 Proclamation. This would, Blackader blithely assumed, establish beyond doubts the prisoner’s collaboration with the enemy because of the controversial reference in the text to ‘our gallant allies in Europe’.
Wylie, however, pointed out that the provenance of the document (of which he actually had a copy) could not be established and, therefore, it was not admissible in evidence. The proclamation was a printed document. It would be necessary to locate the original and confirm the signatures before it could be presented as evidence. Wylie advised that the presiding officers expunge it from their minds when considering their verdicts and sentencing.
After the court martial of MacDonagh, Wylie began a practice of consulting with prisoners about to face trial while the court was considering its verdict in a previous case. This was with a view to discovering whether they wished to call defence witnesses. Pearse, MacDonagh and Thomas Clarke had been given no opportunity to produce any such mitigating evidence.
Partly as a result of Wylie’s intervention, Eamon Ceannt’s court martial continued into a second day when he called three defence witnesses. Ceannt argued that in his case ‘there is reasonable doubt’ about the fact of his participation in the rebellion, ‘and the benefit of the doubt should be given to the accused.’ He was certainly not convicted on the basis of the quality of the evidence presented against him. For example, the only prosecution witness who testified at Ceannt’s court martial seemed convinced that Ceannt had been in command at the Jacob’s Biscuit factory. In fact, he had led the South Dublin Union Volunteers, whose surrender had taken place at Jacobs. Ceannt was able to cross-examine that witness, Major Armstrong of the Inniskilling Fusiliers, and call witnesses of his own to refute the suggestion that he had served in Jacob’s factory – these included John MacBride, who openly admitted to being (albeit belatedly) part of the Jacobs factory command structure. Ceannt also, cleverly, called Thomas MacDonagh as a witness. He must have known MacDonagh had already been executed, but by requesting that MacDonagh speak up on his behalf Ceannt was throwing the untimely speed of the executions into perspective. Arguably, the authorities had a legal obligation to postpone carrying out sentences of execution on the convicted rebel leaders until the courts martial were completed and they were no longer required as potential witnesses. This was candidly accepted by the Home Office official, Edward Troup, in a conversation with Herbert Asquith in 1917 when they discussed (and long fingered) the issue of publishing the court martial transcripts.
Ceannt also explicitly denied ‘assisting the enemy’ and pointed out in his unsworn statement that ‘the Crown did not even tender evidence in this regard’. A reading of Ceannt’s court martial transcript suggests that, in an open criminal court with the customary level of evidential testing, the Crown might well have failed to establish a bona fide case against him.
This suspicion is reinforced by an opinion offered by the Adjutant General, Sir Neville Macready, on the issue of whether or not the accounts of the courts martial should be released. Publication had been promised by Asquith to the House of Commons in October 1916. Having consulted with Maxwell, General Macready wrote:
Publication is in my opinion a complete admission that there was no justification for trial in camera … [and] I have reason to believe that in certain cases the evidence was not too strong
He was referring to the flawed testimony in Ceannt’s case. Subsequently, in 1917, Ceannt’s widow, Frances Ceannt, sought a transcript of the court marital and was refused access to the document on the grounds of ‘privilege from production of these proceedings for reasons of public policy.’ Ned Daly’s mother made a similar request. This too was denied, on the basis of ‘public interest’.
The court martial process was a mass of anomalies, contradictions and unsafe procedures and verdicts. Both the transcripts, as well as subsequent memoirs and testimonies, underline the relative paucity of information available to the Crown forces that would have enabled them to identify readily those chiefly responsible for the rebellion. Men of little consequence, like Willie Pearse (a glorifed aide de camp to his brother) were executed, while the timing of his court martial [8 May] and the political row over the murder of Francis Sheehy Skeffington—according to the BMH witness statement of Alfred Bucknill—ensured that one of the most successful commandants of the Rising, Eamon de Valera, was spared. It is a well-squashed myth that Dev’s survival had anything to do with his being born in the USA. He was fortunate to have been held at first in the RDS after the Volunteer surrender, thus delaying his court-martial.
The arrival of Prime Minister Asquith in Dublin on 12 May might also have contributed to the failure to execute Eamon de Valera. Wylie records that Maxwell consulted him on the importance of de Valera, a commandant, [3rd Battalion] and therefore of similar rank to many of the executed leaders, and of higher rank than others who were shot. Maxwell asked Wylie “I wonder would he be likely to make trouble in the future?” To which Wylie responded “I wouldn’t think so, sir, I don’t think he is important enough. From all I can hear he is not one of the leaders.” Apart from the ex post facto comic element of the conversation, it’s an interesting insight into Maxwell’s thinking, and into his motivation for approving so many of the death sentences imposed by the courts martial – i.e., the eradication of future potential trouble makers.
Asquith, while defending Maxwell in the House of Commons, must have been belatedly aware that due process played little or no part in the field general courts martial process. Force majeure, the inclination towards retribution, and a desire to geld the nascent physical force movement by killing off its leadership corps, were far more in evidence in May 1916.
On the other hand … there is little doubt that the unwonted savagery of the British reaction to the rebellion was one of the factors (along with the attempt to introduce conscription in 1918 and the toll of Irish war dead between 1914-18) that led to the 1918 Sinn Féin landslide, the War of Independence, and, ultimately, legislative freedom for twenty-six Irish counties. A freedom which means that, unlike the people of Northern Ireland and Scotland, a bad case of revanchist English nationalism, will not ensure our forced exit from the European Union on 1 January 2021.
While it was on the cards for a number of years, and was a decades long project championed by abolitionists (of booze, not slavery – though they were often one and the same), the 18th Amendment to the US Constitution came into existence one hundred years ago, and lasted an unlucky thirteen years, before being removed in 1933 by the 21st Amendment (also the name of an excellent bar in San Francisco). It’s still the only instance in which a constitutional amendment has been introduced purely to nullify one of its predecessors.
It all started in January 1920, so that by the Fall of that year the authorities would have had a fair idea of how it was all going to pan out. The answer was, not that well really. The so-called ‘Noble Experiment’ was one of those idealistic and simplistic American solutions to complex political conundrums (‘Hey, let’s invade Iraq and get rid of Saddam Hussein’. ‘Hey let’s invade Libya and get rid of Gaddafi’ – you probably get the picture). In this case the problem was the undoubted affinity of many Americans to their fellow citizen ‘Mr. John Barleycorn’. (And I know that we Irish are in no position to be sanctimonious about that particular vice).
The widespread consumption of alcoholic liquor was responsible for the phenomenon described in the USA as ‘Blue Monday’ – not, in this instance, the biggest selling 12” single of all time by the Manchester band, New Order. The expression referred to the Monday after a weekend drinking binge. In addition to the many moralistic arguments advanced by abolitionists, the economic case was made that the introduction of Prohibition would bring ‘Blue Monday’ to an end and benefit the economy because of increased productivity.
So, where did the move to ban the sale of alcoholic beverages start?
With a plethora of 19th century Temperance movements, like the Women’s Christian Temperance Union and the Prohibition Party. These included the Knights of Father Mathew. The Tipperary-born, Cork-based Capuchin friar spent two and a half years in the USA from 1849-51. He visited 25 states, was entertained in the White House, and organised the Knights in St. Louis before he left the USA to return to Ireland.
This early manifestation of the temperance movement managed to force prohibition in the State of Maine in 1851 – a move copied by a dozen other states – but those bans mostly didn’t survive the Civil War. There was an interesting footnote to the Maine ban – if you’re a Premier League soccer fan. There was a strong temperance movement in the city of Manchester in the mid 19th century and when the US state of Maine passed a law banning alcohol, the Manchester Temperance movement, which owned land in what was then known as Dog Kennel Lane, insisted on the name being changed to Maine Road, which, from 1923-2003 was the home of one of the city’s two professional football teams (the one in light blue).
After the American Civil War the Temperance movement made a major comeback in the 1880s. One of its most colourful champions was a woman named Carrie Nation (that’s actually her real name). She was a 19th century prohibitionist whose unique selling point was to arrive in a bar with a hatchet and destroy as much of it as she could before she was arrested. This occurred on at least 30 occasions. Ms. Nation obviously had a dark sense of humour as well, because one of the magazines she published was known as The Smasher’s Mail and another was entitled The Hatchet.
But that was all prologue to the serious business of banning the sale of booze in the 20thcentury.
This was brought about by organisations like the Anti Saloon League (very capably led by the politically adept Wayne Wheeler). The ASL campaigned vigorously for the introduction of prohibition, making considerable progress in legislative circles by the end of the first decade of the new century. When the USA entered World War 1 in April 1917 a law was introduced prohibiting the brewing or distilling of alcoholic beverages more than 1.3% proof – the official aim being to save wheat supplies for bread production. But, it was also a dry run (pun intended) for the ’Noble Experiment’ of Prohibition. The legislation was not finally enacted until well after the Armistice after 11/11/1918! So, you would assume it was redundant by then, but it was still enforced even though the war was over. It came into force on 30 June 1919, with 1 July 1919 thereafter being known as the ‘Thirsty-First’.
The move to make alcohol production unconstitutional (it was already illegal in a number of ‘dry’ states and counties) also began in 1917. The required 36 states had ratified the 18thAmendment to the US Constitution by January 1919. Later that year Congress passed enabling legislation (written by the Anti-Saloon League) in the name of one of the champions of prohibition, Andrew Volstead, Minnesota Republican and Chair of the House Judiciary Committee. The Democratic Party President, Woodrow Wilson, vetoed the legislation after it passed both houses of Congress, but there were enough votes in the Senate and the House, from Democrats and Republicans (two thirds of both assemblies) to override the Presidential veto. The legislation provided that ‘No person shall … manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor …’ The bar was set very low too. The Volstead Act defined ‘intoxicating liquor’ as anything higher than 0.5% proof. The 18th Amendment to the US Constitution was repealed by the 21st Amendment when Utah (irony of ironies) became the 36th State to ratify in December 1933.
The campaign to expedite the introduction of prohibition was very evangelical Protestant in its origins, with a lot of Methodist and Baptist input. So much so that even religions which disapproved of alcohol did not get too involved in the campaign, but it was something over which northern WASPs and Southern ‘Jim Crow’ racists could unite. It also involved far more women than was the norm in any political activity outside of the parallel campaign for female suffrage.
One of the puzzles to a modern audience is the nature of the coalition that forced the Volstead Act through. If prohibition were to happen today it would probably be an entirely evangelical conservative Republican phenomenon. But, in the first decades of the 20thcentury it was a Democrat-Republican/progressive-conservative coalition that managed to garner enough support to force the measure through. It was also an urban-rural conflict at a time when the urban USA was not as demographically significant and dominant as it is now, and when corrupt urban machine politics was often associated with city saloons and bars where voters were bribed, murky deals were done, and city ‘bosses’ made their plans to siphon off millions of taxpayer dollars
The cause of the so-called ‘Noble Experiment’ united an unbelievably disparate group – from the Ku Klux Klan on the far right to leading members of the women’s suffrage movement on the left (the legendary Susan B. Anthony was a 19th century supporter, for example) and included ultra-conservative evangelical preachers like Billy Sunday, as well as African-American labour activists in liberal New York. This was how the supporters of prohibition managed to override the Presidential veto in Congress – it was the sort of ‘hands across the aisle’ movement that would be unthinkable today.
Did the Volstead Act introduce a total ban on alcohol?
Not quite. Wine was still legal for bona fide religious purposes (so, consumption of altar wine soared!). Some alcohol could still be manufactured and sold for medical reasons (doctors made a lot of money prescribing whiskey ‘purely for medicinal purposes, you understand officer’ ). The domestic consumption of alcohol was not illegal so you could make your own wine or cider at home, but not beer or spirits. Or you could stockpile your supplies in advance of prohibition being introduced, assuming you had the money. President Warren G. Harding (1921-23), for example, even brought his own stockpile to the White House!
The California wine industry could have been completely gutted but for the fiction that much of the raw material produced by the industry was being consumed in fruit salads as grapes. Also, the production and consumption of grape juice/concentrate was legal, despite the fact that if you let grape juice ‘sit’ for long enough it would ferment into 12% proof wine!
So, what happened to the booze business when the Volstead Act went into force?
Breweries either began to produce beer that was virtually non-alcoholic or they closed. After the supplies that people had been hoarding for months finally ran out it was happy days for brewers and distillers in Canada and Mexico. The practice of ‘rum-running’ began early and in earnest, and this was where criminal elements started to exploit prohibition. They sourced booze across the US border, north and south, and transported it to where there was a huge market, mostly in American cities. The ‘bootlegger’ became an American folk hero. As the dominant Chicago gangster and racketeer, Alphonse ‘Scarface’ Capone put it, ‘I am like any other man. All I do is supply a demand’.
It was the era of the illegal drinking den, the ‘speakeasy’ (not an American Prohibition-originated expression BTW – it first appeared in Australia in the 1830s and in the USA in the 1880s). There were an estimated 50,000 of these illegal drinking establishments in greater New York alone, 5,000 of those on the island of Manhattan. Prohibition trebled the number of drinking establishments in Chicago. They ranged from sleazy dives to the sophisticated and well-protected establishments of F.Scott Fitzgerald’s The Great Gatsby (himself a bootlegger – Gatsby, not Fitzgerald) and of Hollywood 1930s movies.
Speakeasies came in all shapes and sizes. You can even have a drink in one if you visit San Francisco. It’s the Cirque, a reopened bar in the Fairmont Hotel on Nob Hill that once operated as a speakeasy. That’s about as good as it got when it came to illegal drinking dens in San Francisco. The other side of the coin would have been the dives that dotted what was known as the Barbary Coast area of the city – the red-light district. Most of those were pretty vile and were closed down during prohibition, completely changing the nature of the neighbourhood.
As the era went on, and as more and more speakeasy owners took out ‘insurance policies’ ensuring that the authorities ignored their activities, the speakeasy tended to become more open and sophisticated – virtually indistinguishable from the modern nightclub. The famous Delmonicos in New York served its time as a speakeasy, as did the Krazy Kat Club in Washington DC. The ‘Irish’ New York gangster Owney Madden (who was actually from Leeds!) was part-owner of the famous Cotton Club, and while the likes of Louis Armstrong, Count Basie and Fats Waller were performing there Madden’s bootleg hooch was being sold, at a sizeable mark-up no doubt, to the patrons. Madden must have fallen behind in his payments because the Cotton Club was closed briefly in 1925 for, shock/horror, selling liquor– that never happened again. The closure I mean.
The speakeasy also changed the nature of the cocktail – this was because all sorts of liquids had to be added to bootleg cocktails to disguise the fact that patrons were basically drinking rough and ready moonshine. Speakeasies were frequented by the great and the good – mayors, senators, police chiefs, and film stars. When raids occurred, it was often at the behest of Federal law enforcement officers. Municipal police forces were ‘bought’ early and often by rum runners, bootleggers and speakeasy owners, and preferred to turn a blind eye.
What steps did the Federal government take to enforce the Volstead Act?
A number of different agencies (including the Internal Revenue Service) were delegated to enforce the law. The most famous of these was the Bureau of Prohibition which waged war on the many gangsters exploiting the ban on alcohol sales. The most famous Bureau of Prohibition agent was Eliot Ness, based in Chicago, who led a unit that became known as the Untouchables. This was because, unlike most Chicago city police, its members were not susceptible to corruption. Ness used a wire-tapping operation to inhibit the notorious Al Capone’s operations. The work of Ness led to an indictment of Capone for more than 5,000 Volstead Act violations, but he ultimately went to Federal prison (Alcatraz) for tax evasion.
Also, in order to prevent the use of industrial alcohol in the production of illegal hooch, the Feds ordered that ethyl alcohol was to be ‘denatured’ by the addition of lethal poison. When the ingenious bootleggers got their chemists to ‘renature’ the alcohol the Feds insisted on even more deadly poisons being introduced. Up to 10,000 people are believed to have died as a result of being poisoned by ‘denatured’ alcohol.
As with a lot of moralistic legislation the inequalities showed up early – wealthy and middle-class Americans could afford to frequent speakeasies or pay inflated prices for booze – working class people could not – this quickly led to the use of portable stills and the manufacture of domestic ‘bath-tub’ alcohol by the less well off. In the first year of operation alone there were over 30,000 cases taken against people for violations of the Volstead Act. That number increased from year to year until 1933.
Prohibition, rather than introducing a more sober United States to itself, and to the wider world, only helped to supercharge the ‘Roaring Twenties’. After the misery of the Great War people were not going to be stopped from partying by the inconvenience of Prohibition. They found many ways around the law and rationalised their implicit/effective support of gangsters in the process.
Culturally did Prohibition give rise to places like The Cotton Club in Harlem, to the music of the Jazz Age, to the Charleston, to songs like ‘Basin Street Blues’, ‘Honeysuckle Rose’, ‘Everybody Loves My Baby’ or ‘Sweet Georgia Brown’? Or would they all have happened anyway? Who knows? It is certainly responsible for movies like Little Caesar (based on the career of Capone) and Public Enemy (starring James Cagney) – both released in 1931. It also enhanced the enticing ‘risk factor’ of having a good time (you could, in theory at least, end up in jail) and there was a ‘nose thumbing’ element to the social life of the 1920s. This was encapsulated in the song ‘Chicago’, in the lines …
‘Bet your bottom dollar you lose the blues in Chicago,
The town that Billy Sunday could not shut down’
But part of the mythology of the ‘Roaring Twenties’ is definitely and legitimately associated with organised crime and homicidal gangsterism – with the rise of ‘Scarface’ Al Capone in Chicago —partly achieved by his brutal slaying of the senior members of the rival ‘Irish’ Bugs Moran gang in the St. Valentine’s Day Massacre on 14 February 1929—and the emergence of the Five Families of the Sicilian Mafia in New York (supplanting Irish and Jewish gangs there) in the 1930s. By 1931 the Sicilian Mafia was already well organised in New York (helped by the money being made from supplying liquor) and was drawing up its own ‘rules’ and establishing a governing ‘Commission’.
Prohibition is difficult for us to get our heads around in the 21st century – today we wonder ‘could you not have seen what was going to happen if you made alcohol illegal? – criminal elements would inevitably flood in and fill the vacuum.’ But there is a lot of ‘backwards history’ about that line of reasoning, We now know what actually happened (Al Capone, Bugs Moran, Dion O’Bannion, Dutch Schultz et al) and we can draw parallels today with the illegal manufacture and sale of narcotics. But there are many historians who insist that there is insufficient evidence of massively increased crime statistics between 1920-33, and that there is plenty of evidence that the health (physical and mental) of Americans dramatically improved during that period. So, they argue, Prohibition wasn’t all bad.
Undoubtedly the USA did have a huge problem with alcohol abuse in the 19th and early 20thcenturies. Interestingly between 1830-2010 American consumption of alcohol declined by 66%. The Temperance Movement, Prohibition, and advances in Public Health information have all contributed to that reduction.
So, why did Prohibition eventually end?
1) Increasing disillusionment as to its achievements, even on the part of former supporters. It appeared to trail in its wake it even more ‘moral’ issues than it addressed.
2) The detrimental effect on state and federal government revenues of the non collection of taxes on the sale of alcohol. This became even more crucial after the Wall Street Crash, as the Federal and State administrations urgently needed additional sources of revenue, and FDR needed to pay for his Keynesian New Deal policies (most of which, however, were funded by Federal borrowing).
3) The perception of the growing lack of respect for the law among ordinary citizens who were flouting the Volstead Act in their millions in speakeasies and had rather too much sympathy for the ‘ordinary decent criminals’ manufacturing, distributing and flogging booze.
4) The grip of ‘Bootlegging’ and the ills that accompanied the rapid growth of organised crime (though the extent of this has been questioned by some revisionist historians – but perception is just as important as reality)
5) The need to end the corruption of politics and policing brought about by the rampant bribery of officials, politicians at all levels and police forces. (So, how did that one go?)
Although he eventually fell victim to his own success, let’s leave the last word with one of the brutal success stories of the Prohibition era, Al Capone.
‘You can get much further with a kind word and a gun then you can with a kind word alone.’
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