Minutes. Ladies and gentlemen, welcome. I am the president of this wonderful institution. The only institution in america chartered by congress to disseminate information about the u. S. Constitution on a nonpartisan basis. Beautiful. So great to hear those wonderful words of our Inspiring Mission statement here in the beautifully renovated theater. Ladies and gentlemen, just a few months ago we opened up this gorgeous new space renovated with the great foundation. And youre hearing me from the state of the art cool mics on these beautiful new seats. Its a thrill to see so many people here to celebrate the opening of the return of our great exhibit, american spirit. [applause] i want you to go see it after the show if you havent seen it yet and cspan viewers i want you to come to philadelphia to see this beautiful exhibit which tells an amazing constitutional story that we are going to talk about tonight. That is the constitutional story that poses an incredible question. How did it happen . How did it happen that america voluntarily by a vote of 46 states with only two states dissenting in 1919 decided essentially to ban intoxicating liquors with the 18th amendment and then only 14 years later by a similarly overwhelming majority of 46 states with only two states dissenting changed its mind and repealed the 18th amendment in the 21st amendment, if only time in our constitutional history that an amendment has been repealed and it took only 14 years. I hear a bravo from one in the crowd. Those who are here enjoying a full bar imagining that its 1933 and not 1919. So everyone is enjoying their drinks. Its an incredible story. I had to cram to learn about it but we have to talk about it two of americas leading experts. Im going to introduce them in a second. But before i do, i just want to say again how thrilled everyone at the center is to welcome our new chair Vice President joe biden. [applause] jeffrey it is so meaningful that he joins this incredible group. He was preceded by governor jeb bush, before him president clinton and before him president h. W. Bush. No other institution in america has brought together leaders from both sides of the aisle to the unite around our shared love of the u. S. Constitution and the importance of teaching it to all americans. Thats what tonights show and exhibit is about. Educating ourselves about this history which is forgotten largely today but so important and can teach us so much about who we are as a nation, how the constitution has changed and how we should think about constitutional change today. It is now my great pleasure to introduce our phenomenal copanelist lisa anderson, a historian at juilliard. Her book is the politics and prohibition american governance and the prohibition party. And joshua is an historian the auts of of a bunch of spectacular groups. Please join me in welcoming lisa and joshua. [applause] so glad to be here. Let us jump into it. Lisa, pretend its 1919. There we go. Theres actually water in here. Thats true, theres a possibilit himy. We will spend the whole show talking about this question how did it happen . Him lisa the first part is that him him and drunk people are annoying, especially if youre not drunk. That really becomes the starting point. There are a few pathways that people come to prohibition. One is simply employers. It is dangerous to have employees drion a job, especially when america industrialized, that becomes greater. You have people coming from a fundamentally religious point of view. Part of this is the desire to restrict something they see essenes will as sinful. Part of it is something that prohibits the him process of salvation. You need selfdetermination to have that. Part of it is him political. Him there is a growing movement of opposition towards corporations and trust. The liquor industry fits that profile. A lot of people pushed back seeing it as infiltrated him it could affect the future of democracy in america. Jeffrey fascinating. Joshua, tell us about more. There are also immigrants in the urban areas versus dry people in the rural. Progressives who we think is of liberal turn out to be himiti him a antiimmigrant. Joshua there is an incredible backdrop. Some may seem familiar today. This is a time 30 years leading up to prohibition. The massive influx of immigrants from country that today would be considered not particularly unusual, but at the time immigrants from italy and ireland and eastern europe, and greece were considered quite foreign and not necessarily part of the fabric as old stock american populace they had drink and cultures. They came to represent to many americans, something that was foreign and dangerous and not part of the organic american nation. It was a time of rapid demographic transmission. Rapid urbanization. You had quite a lot of political and cultural contests that grew up around that. It was also a time of Cultural Innovation and a time when gender roles were getting thrown in the air because women were moving into the workplace and more people were in the cities. You put all of this together and Something Like alcohol, or the provision prohibition of alcohol became representative of a number of cultural touch points. Became the type of issue that people could latch onto in a representative way, even if not always consistently. As you said, many precedents we think of as liberals, many of them latched on to prohibition for their own reason. By the same token, many antiprogressives, protectives of the old guard also embraced prohibition for their own reasons. People looked at the lives they used to look at the question, that would influence the reasoning for embracing an antiliquor platform. Host a bipartisan movement uniting these urban progressives with rural. Evangelicals lets take us up to the progressive era. The question of, whiskey tax is important. 40 of funding the National Government since the time of the founding when the whiskey tax the 25 tax George Washingtons administration imposed created the whiskey rebellion. All of a sudden you dont need the rescue dust whiskey revenue when the 16th amendment authorized a federal income tax. Tell us about that in the Politics Around 1913, 1914, during the administration of that great president , taft, the subject of my next biography. He was against the prohibition because he thought it would be hard to enforce and would lead to a trampling of state rights. Tell us about the Politics Around 1912, at a time when more than half of the states were dry. Lisa there were huge economic reasons to avoid it. Those reasons seem so significant, for particularly the beer industry. People were starting to transition towards beer, partially because of refrigeration. It may that technologically possible. All of the people involved in the beer industry, they are important because they are better organized than the distilled industries. They are feeling good because their rates of failure going up. They had a long history of a relationship with the federal government and the government relying on taxes. They dont organize particularly well to stop prohibition simply because they did not believe it could happen. That seemed naive that the people who were proprohibition also believed the same. It made more sense, it was something we could look at the amendment as something that ambushed both sides. There is a law in 1913 that allows states to restrict the beer booze imported and taft the event that vetoed that. He Things Congress has no power to regulate this. His veto is overwritten by a two thirds majority partly because of the intervention of a guy called wheeler, a political operative of the day who went around to individual Congress People in swing districts and said he would vocalize activist against them. Tell us about his role and how a two thirds majority is building in congress. Joshua i will start that. He is fascinating. He is arguably one of the first modern lobbyist. He is a product of the era where you mentioned the progressives earlier, but there are a lot of progressive causes they gave rise to modern advocacy models. People calling and organizing visits to congressman, not offices, there were not any but organizing letter writing campaigns, letter to the editor programs, Public Meetings the kinds of things we think of today is being a simple part central part of modern organized political action. That was really the Antisaloon League. You also saw other advocates oftentimes intersecting with them. People trying to secure passage of antifederal labor laws, people trying to secure passage of immigration restriction or laws loosening, it was a time of heightened for political activism. The league actually mobilized public opinion. Jeffrey wheeler was described as an older version of net flanders ned flanders. Lisa if he was terrifying, wheeler would be that. He had an insane organizational sense and a willingness to lets say pressure. If he had been part of the mob he wouldve been successful. It was one of those things where he was able to find just the right person, just the right position and figure out exactly how to persuade the person that there was an enormous Popular Support for prohibition. Even if this involves them removing people from office by circulating things that were unsavory, by making it appear that people were neutral actually had a close relationship. He was not above those techniques. He used them quite a bit. That is when we talk about the Antisaloon League, for most historians we call it the first Major Pressure group. Something different and special in comparison to public politics related by political parties. There was a movement happening at the same time where people were trying to clean up political parties. They were trying to make primary elections run legitimately. They were trying to create initiative and referendum to establish better procedures for bringing forward candidates. All sorts of regulations to try to make clinical parties that are and more democratic. All of a sudden the Antisaloon League came in and said, we dont need political parties, we can represent the people directly. That became an overwhelming sort of jolt to the entire way that people organized politics. No longer was a dependent on political parties, there were also now social interest groups. Jeffrey imagine a populist force rising up in challenging the political establishment. Lisa they looks like populist forces, and he said they were, but were not quite sure he was representing that many people. He kept very secret records. Jeffrey and there were no gallup polls been. We do know that by 1913, wheeler was able to persuade two thirds of congress to override the veto, even the taft was against prohibition. Wilson who vanquished taft in 1912 is not clear how he stands. In 1917 and all of a sudden world war i is neigh and wilson gives this dramatic address that congress on april 2, 1917, declaring war on germany. Two days later on april 4, congress by a two thirds vote proposes the prohibition amendment. Tell us the story about how part of that reflected the xenophobic anger at socalled german brewers and what was the role of world war i in pushing this amendment over the edge. Joshua i think world war i catalyzes social economic demographic forces that have been in play for many years. Many wars, including world war i put the economy on steroids, which in effect will, in this case, accelerate patterns of urbanization and industrialization. Moving a lot more women and rural people into urban settings , into the workforce. Like other wars, it offends a lot of older cultural patterns. It places into a spotlight this question of who is an american, brewing for some years. Lisa brewing beer on my mind. German americans would be suspect during the war, but immediately after the war, and they talk context of the revolution, a lot of people in the u. S. Became suspect. There is a larger discussion whether they are fit for citizenship. Whether they are italians who are suspected of being an artist or Eastern European jews suspected of being communist or socialist, these people all seem very suspect particularly in the context of the aftermath of the war that required immense amount of mobilization and a focus on unity of the american spirit. A it provides an opportunity for people who have for some time been worried about these trends, to actually zero in on particular issues, like Alcohol Consumption, but also sexual morals and religious practices. It allows them to grab these issues and use them in a representative way to talk about constellation of concerns. Jeffrey the amendment is propose on april 4, 1917, and it is ratified in 1919, about a year and a half later. The ratification is by three corridors of the state legislatures. Time for a reminder about how you can amend the constitution. There are two ways to propose and ratify. An amendment can be proposed by two thirds vote of both houses of congress, which is what happened with the 18th amendment. Or by a convention called at the request of two thirds of the state legislators. People who are calling for a balanced budget, a convention of the states today have now gotten seven states short of the two thirds that are necessary to call a new constitutional convention. That would be the first time that proposal mechanism would be used in u. S. History to ratify any three quarters of the state legislators or ratification of three quarters of special conventions called in the states. The 18th amended for prohibition was ratified by the legislative method. The first time history that ratification by state convention has ever been used. Thanks for indulging me on that brief article five primer. We had some Great Middle School kids here today. I quizzed them about how you amended. They got it. It was wonderful. Lisa give those teachers gold stars. Jeffrey and cspan viewers, if you have further doubts about how you should learn about how to amend the constitution check out the interactive constitution that the National Constitution center has created with the Federalist Society and the american constitutional society. You will see scholars writing about the constitution. We have a great explainer on article five. Back to the ratification. It takes three quarters of the state legislators. How did ratification go . Well covered. Lisa it was fast. Probably the most important thing. This is where a lot of the later critiques come into play about how democratic essentially was this amendment. The speed is important because of two factors one means that soldiers in world war i were having difficulty communicating with their representatives in a state legislatures. Theyre having trouble communicating in ways that voters want to real to articulate to their percentages. That has a factor. They dont have enough time. The other thing that comes into play is that the speed means that many people of the state legislators voting on ratifying this particular amendment were elected before prohibition was set as a national issue. In many cases they were elected by constituents who did not know that representatives position on prohibition. There are two ways in which the processs speed might later be seen of indication it failed to meet the standard of deliberation. That is a critical prerequisite for democracy. Jeffrey it is critical. That is the whole point of ratification. People have to deliberate an issue before the constitution can be amended. That is a fascinating process failure. Tell us about how some of these state legislatures are apportioned. That means that rural votes count for more than urban. Joshua voting in the middle part of the 19th century that liberalized for the most part. There were many states in which alien residents who declared their intention to become an american citizen can vote. There were very few registrations. There were very few residency requirements. Americans have long done away with requirements that v taxpayers or on land. That such own nland. There was a time vocal workingvery class, the rise of the Union Movement that many middleclass employers who came to embrace prohibition follows suspect. You see a rash of laws of the state and local double that make it harder to vote. Laws restricting registration, voter id laws for the first time in american history. Residency requirements in states that previously allowed noncitizens who had declared their intent to become citizens, they were no longer allowed to vote. It became much harder for working people who were transient, and did not always have the ability to document the residency to participate. That meant a large part of Voter Participation is a ratio of eligible, meaning of age adults drops off in the late 19th century. A lot of states are apportioning legislative districts and congressional diltures in a way that the urban population or they are relying on citys census numbers from 1900 that do not reflect the moving into cities and the arrival of new americans. There is definitely an anti democratic strain to the kinds of things. Theyre not always done with the intention necessarily of limiting the franchise or embracing some sort of regressive type of agenda. Progressives, who you are pointing out earlier, attempting to improve the electoral process are instituting processes but also make it difficult to vote. But theyre doing it with good intention. There is case to be made that a lot of the sort of the compulsiveness of this argument in the 1920s was the fact that a lot of people never viewed prohibition is a legitimate exercise of the democratic process. Jeffrey this process that is supposed to speak to the deliberate sense of the people may have failed for this malapportioned that and other reasons. The amendment is ratified in 1919. It becomes law and it is up to congress to say what it means. Congress proposes the ball stud act which sets the limit for permissible spirits at a low percentage. Surprisingly low. Many people said, it will not cover beer, it turned out it did. Wilson is so upset that he vetoes the act. He says he will wait a year. People felt they were sold a bill of goods and got more of a restriction. Lisa the people who were paying attention probably felt that way. Despite the fact that voting turnout is significant. We are getting numbers between 85 and 90 voting turnout in some elections. None of the less, the amount of educated voting is not always high. People mostly voted for whatever Political Party their neighbor voted for. There was not necessarily a lot of attention to the intricacies of what exactly they were setting into play. You see with the ball stud act that people would vote at 2 . They would have a near beer product. That quickly became clear that would not be the case. A lot of people who had hoped that congress would interpret the new amendments in a way that was generous for liquor providers they saw themselves as friends to the federal government. They had been funding a for such a long time were rather shocked to find out that was not the case. They had a year to kind of reorient. Amazingly, because of the amendment was written, you could purchase as much alcohol as you wanted in that year before. You could store it. They did very good sales leading up to prohibition. A lot of basements became very full. Did anyone here go to yale . Lisa and willing to admit it. They had a 16 year supply of liquor in the 1920s, membership had its privileges. Jeffrey how effective was prohibition . I saw a statistic that drinking fell by Something Like 70 . At the same time, enforcement was lax because there was only 4000 federal agents, some were dismissed for corruption. How is it possible that drinking decreased . Joshua i have the numbers close to 30 , but it does drop off. In part because it becomes more expensive. It was always possible for people, if you belong to a club, or you know the secret password, it was always possible to get alcohol. With the supply being shut off it became more expensive. To be fair, we think back on prohibition as being somehow regressive but Alcohol Consumption in the 19th century was by todays standards, obscene. Lisa people drink too much. Joshua it did to set us on a course of more normal Alcohol Consumption. A lot of this is because it was interwoven with family and work, particularly certain immigrant works. Workingmen, working saloons. It does sharply interrupt some of those patterns. Jeffrey on the enforcement question, one of my colleagues, we were talking to today said marijuana is illegal, if it were not, i might use it. The fact that it became illegal consumption. Decreased consumption. Tell us about that. Joshua it was a lot. Jeffrey and then went back up in the 1970s. Lisa in the 19th century, people drink a lot. 1830 as the reference point. 1830 is generally seen as the high point in american so this is where we have to come up with the proxy measure or there are fewer arrest for public drunkenness. After prohibition, when the commodity is legalized again and can be taxed, at that point the rate of the amount of liquor getting taxed is lower than the rate during preprohibition. For how it affected peoples habits, i think part of it is an argument that prohibition has long made which is if something is legal it seems respectable. So when alcohol became illegal it became less respectable. For certain people that made it more exciting, especially when accompanied by jazz. For some people that made it even less acceptable and unseemly and gross. Part of that has to do with what the drinking culture, public drinking was like in 19th century culture. That was mostly the equivalent of dive bars. Imagine only dive bars, with not a lot of other options, except for some ethnic communities. I wouldnt mind going to a beer garden, but i would not go to a 19th century saloon. That is just gross. Jeffrey was it like the 1960s mad men era . People were just drinking all the time . Joshua yes. Lisa very functional. Jeffrey for workingmen in the 19th century. You would work, you would drink, you would work. As you got higher rates of urbanization and industrialization, you had a saloon culture. In the late 19th, early 20th century, that public thinking culture was very much gender segregated, mostly male. You would not see women going into saloons. They would not be welcome, there was a sharp divide between the public sphere which was for men which was politics, the saloon, and women, which was childrearing. What is fascinating is that the era of prohibition is the arguably the first era in which thinking becomes a hetero social activity and it comes to kind of embody the sophisticated set that is flouting these conventions in the 1920s. Including the law. They are doing it, men and women, together. You do not really get that until it is illegal. Jeffrey we have a powder room. You had to create powder rooms for women. Is thats right that it became an unwitting engine for gender integration . Lisa it definitely had that role. We are talking about a particular ethnic group. Irish women had home sales and things like that. Here we are talking about women who could pay to go into a nice nightclub or someone they knew could come into a nice nightclub and have cocktails. This is the birth time of cocktails and what we all know as the girly drinks. Anything with pink or sparkles or anything like that becomes popular. Part of that is to deliberately welcome a womens clientele. Most of the time in the 19th century saloons, you either came in through a back door into a ladies lunch area, or there were prostitutes. It was not an environment in which there was a reason why it was shocking in the 1870s when you have large groups led by the ministers wife storming the saloon and trying to disrupt all of its patrons by praying loudly in the middle. That was because you never saw women in saloons. Except for the naked women on the wall, but that is another thing altogether. It was the idea of the transformation of environment that had been unseemly into an environment that is stylish. And that transformation is mind boggling because it does create a whole new hetero social world. Men and women can enjoy each others company. It is not a fluke that the 1920s of the era when we start seeing dating as a customary practice. Much to my great grandmothers heart attack. She used to call cars, bedrooms on wheels, which is evidently a thing other peoples grandmothers called them. Theres a whole culture of young people of both sexes coming together and enjoying each others company. I mean that euphemistically, as well as accurately. Jeffrey i heard that equation in the 1920s drivers ed and sex ed were taught at the same time. Joshua a husband and wife that were sociologists spent about a year studying a town. They published their ethnographies of the town called middletown, later called muncie. The kind of cluster of concerns the parents had in this era when more kids were going to high school, it is the first decade where you had a discernible adolescent or teenage subculture, and the things they were concerned about were sex, alcohol, and the car. They thought the automobile had a lot to do with the other two because it was giving people a literal freedom. Boys and girls together, doing things that were illicit, including drink. Jeffrey its said the sexual revolution of the 1960s was driven by the pill. Was the sexual revolution of the 1920s driven by prohibition . Lisa i dont know if they call it driving. But i think they are all related factors. They go together. There is a certain aesthetic, a young peoples aesthetic of the 1920s, which is clearly identifiable with everything from fashion to how one spends leisure time to what expectations are before marriage. All of that was coming together. It was still an environment in which the womens dorms have curfews and the mens do not. People know each other better before they are married. Joshua you can look at trends. I will bring it back to prohibition. When you go from an Agrarian Society to an urban society, there is no longer an economic incentive to have seven kids to help you on a farm. Rather, there is an incentive to have two children because children are no longer an economic help, they are a liability. And now they have to go to school later in the lifespan. Lisa children are less profitable. Joshua you have to invest, if the want to do well you have to have high school, maybe even a little college. People started to associate sex from procreation. Once you do that you are acknowledging there are reasons to have sex which have nothing to do with having a family. That is sort of the backdoor to having there is a lot flowing from that. It converges in the 1920s with a public Leisure Culture. There are now electric streetlights, public amusements. People are working a fixed eight day or ten day hour rather than the continuous pattern on the farm. They expect to have a Leisure Culture out of work. And it is possible now in these cities to do that in public, with men and women together. And it happens that prohibition kind of maps itself over these developments. It means that how call would be a theme behind that. For people who are alarmed about a first sexual revolution in the 1920s, or the creeping confluence of the public and private spheres for men and women, alcohol can become a very powerful representative problem or virtue. There are some people who think it is very sophisticated and they embrace it for the same reasons they embrace the modernity around them. Jeffrey lots of crosscutting forces. The sexual revolution was undermining its enforcement. It is not illegal to drink, it is just illegal to sell. So, enforcement is really ineffective. There are raids. Tell us about the enforcement of prohibition. Lisa it turns out to be harder than you would think. In the actual amendment, i think most historians are most inclined to place the blame on the concurrent enforcement clause. Part of it says basically that either state or federal Law Enforcement can take responsibility in any given place. The idea here was that people who lived in states where the state was not terribly supportive of prohibition could request assistance from the federal government in order to make those areas dry. The importance for Law Enforcement being evenly applied. Otherwise you could cross state lines to get alcohol. You could now do that in a car. This was more of an issue. The problem was akin however to what happens many of you might remember, of having a toddler and going to a party with your spouse. Which is that both of you take the toddler with you to the party. Everyone is watching the toddler so no one is watching the toddler. The toddler pulls down the tablecloth and there is a mess all over the floor. When everyone has the responsibility, no one has the responsibility. With a maximum of around 2500 prohibition agents at any time, that was in no way sufficient to the task that the federal government alone could take responsibly for. The and local governments did not want to. That is especially in the wet areas, where it did not have to be. They did not have to be on the take. They just decided it was not interesting. Jeffrey many were dismissed for corruption. Taft had warned about this failure of enforcement. Even though the concurrent enforcement was necessary to make sure their prerogatives were not trampled. More to say about the failure of enforcement . Joshua one of the ironies is that some of the staunchest proponents of the law would have also been the sharpest opponents of a more liberal reading of the commerce clause, which would allow a larger role for federal Law Enforcement. But this is a period when you have a relatively small federal state. There is not a strong Law Enforcement apparatus. There are entire sections of the country where there is a big demographic political change underway. You take a city or state like new york, where political participation and turnout in elections by numbers shoots up dramatically between 1920 in 1928. That is a whole new generation of ethnic americans who have come of age. They are citizens, they are voting. You get entire jurisdictions where you effectively have the equivalency of nullification. Where the state or local authorities refuse to enforce it, or simply declare it is not a priority. Jeffrey we have a lot of great questions. We have a lot more to talk about including the revolution of the failure of prohibition and the repeal in the 21st amendment. Would you allow me to quickly tell the story of this case . This is the central constitutional Fourth Amendment case of the early 20th century. It unites my two heroes, taft and louis brandeis. It is the most important privacy descent of the 20th century. You cannot come to the Constitutional Center without a homework assignment. Your homework assignment is to read justice brandeis. If you come to the exhibit you can go to the original telephone that the bootlegger used to to make the sun calls to import incredibly profitable, illegal booze from British Columbia and canada. Heres what happened he is a wild bootlegger, making phone calls. Federal agents put wiretaps on the sidewalks leading up to his office. They listen in on his conversations, they say he is bootlegging, they convict him. He says the wiretap is illegal because there is no warrant. And that the evidence should be excluded. In an opinion by chief justice taft, the court holds no trespass, no warrant required because it was public property and the wiretaps were on the sidewalks. They did not go into the office so taft says they didnt need a warrant. The defense is the most important privacy defense of the 20th century. He envisions new technology. He has in his desk drawer, about a television, he misunderstands television, he thinks it is two Way Technology where you can see each other through both ends of the camera. He basically anticipates skype and webcams. They tell him you cannot look out and see some one on the other side. Now of course, you can. But brandeis alludes to it. In a prophetic passage he says, ways may someday be developed i which it is possible without physically intruding into the home to extract secret papers and introduce them into court. That was held to violate the Fourth Amendment. The general warrants that sparked the American Revolution will deal less with emotions than wiretapping which reveals conversations on both sides. We have to translate the constitution so it protects the same amount of privacy in the age of the wires as when it was drafted. Draft did not like prohibition. Taft did not like prohibition. See how these great constitutionalist did not like prohibition. Brandeis, the prophet, says it is privacy, not property. Back to regularly scheduled programming. I love teaching criminal procedure because they are prohibition cases. It is not just homestead. The case involving car searches was a prohibition case. They ripped open upholstery and found booze. Theres a lot to learn about the criminal procedure through prohibition, just as the war on drugs in the 1990s. But we have seen this groundswell of doubt about prohibition and Franklin Roosevelt is inaugurated. There is the depression, they need the money from the liquor tax again. Somehow, in 1932, the repeal amendment is opposed and by is proposed and by 1933 it is passed. Not by the state legislatures, but by this unique procedure never used again or before, a special ratifying convention called into states to ensure the state legislatures did not undermine. How did that happen . Lisa the idea all along there have been people where they have been invested in the liquor industry were opposed to prohibition. But all of a sudden you had people not invested in alcohol financially who start to become really concerned about the amendments implications. Those implications get amplified when the amendment is not attended to. You get somebody like pierre dupont, who switches sides. You get these figures in business. In my classes i teach them as people who, the women wear pearls and the men wear hats. Very collected, professional and highly connected people, both men and women. As they start to advance the idea of the repeal, they keep emphasizing both the way in which it seems to be teaching a disrespect for the law and the fact that it is questionable about its democratic character. They tried making that letter complaint first through court. It did not get the traction they wanted. It did it feel popular, this idea that somehow the enactment of this amendment had not been reflective of the popular will. That was something that was at least an arguable point. Based on how people responded to a. That translated into a campaign for appeal that had to be consistent. And if the critique was that the prohibition amendment had not been democratic, they needed to find a method of repeal that looked as democratic as possible. Going to state conventions seemed to do that. But then there is the tricky point, which is that amendments as ratification methods the voters knew exactly how that person was going to vote for they walked in the door. But that also means there would not be the liberation as part of that process. So any deliberation was only going to be between constituents and in this case the delegates who would represent them. It was not going to happen amongst the delegates themselves. It wound up leading to a version that was arguably more democratic, but was also just differently democratic. I think that is a tension we still work with. A referendum. Jeffrey it passed very quickly. Lisa even faster. These two amendments were unusually speedy. I think that the repeal does not have doesnt it have the record . I wish i remembered. Jeffrey it is right in this thrilling copy of the constitution. [laughter] lisa it is under a year. If i remember correctly. Jeffrey i just cannot read it. Lisa it is the ranking of them that is hard to do. Jeffrey it is proposed lisa i love that you took out the constitution. That makes me so happy. Jeffrey i always take out because edition. After i read this, i will give you this copy. The 18th amendment is hereby repealed. It was passed by congress on figure at 20th, and ratified on december 5, 1933. Lisa that is speedy. Jeffrey anyone who wants one. Lisa but there was no oneyear delay come as they had been previously. Jeffrey when i was a law student i came across this saying that the 18th amendment might be unconstitutional. The idea of an unconstitutional amendment sounds like a solecism. Did some argue that . Lisa im trying to remember, i want to say Charles Evans hughes but im not 100 sure. Basically made this argument that essentially come the process itself, because of its expedited rate and the fact that the legislatures, the way the election cycle had worked was inconsistent with the very ideas which require deliberation as a greater part of the process. I have to reread it. Jeffrey we all will. Lisa more homework. Jeffrey cspan viewers, check out Charles Evans hughes. You can find this really cool article from the 1920s. Lisa i love old law review articles. They are so meticulous. Jeffrey they are in that beautiful typeface. Lisa i read one from the 1890s the other day. It was great. Jeffrey about what . Lisa civil damage loss. The sexually ties in. There was a use of a civil damage law preprohibition, since women were not able to own property if they were married, their husband owns the property in the name, therefore if a woman had a husband who had become a drunkard, which was the category used at the time, she could file an official report with the bartender and the police department. And if they continued serving her husband, they had denied her her means of support. So the fact that she relied upon her husband as a means of support, because the law only gave her that as a choice, translated to the fact that she was entitled to that means of support. If it was denied to her she could sue the bartenders, the saloon owner, and anyone on the line for the right of means to support. And they would have to pay for her. Sometimes there was even an extra payment depending on the number of days in jail. Awesome, huh . [laughter] jeffrey read more law books. Thats what they are about. Joshua the fact that so many women were on the forefront of this movement as well as other Progressive Movements, you saw a dynamic culminating in the progressive era where women who were politically active would oftentimes, rhetorically they would not challenge the idea there were separate spheres, the private and public they would argue that in a more complex urban industrial society, for women to be protectors of home and hearth they needed a voice in politics. Because there were saloons they could not control unless they had the vote. There were Public Health and safety issues. There were school issues now that their were children probably attending proper public schools. The argument in favor of political enfranchisement was in order for us to be guardians and provide nurturing environments for our husbands and children, we need a voice, we need a say. To be women, as you understand women, we actually have to have some sort of input into whether saloons are allowed to serve alcohol and at what hours. It became a powerful edge in for women to say, we will not challenge separate spheres, but we would argue we cannot actually do our jobs as mothers and wise unless you allow us some input. Lisa it is an amazing way to leverage weakness for strength. Jeffrey that is a powerful way to put it. For the repeal, one of our questions is, which two states did not ratify. The repeal was north and south carolina. And for the original prohibition amendment it was rhode island and connecticut . Lisa i remember the first two. I dont remember the second. For the 18th it was connecticut and rhode island. I have no idea why. I have not been able to fully track it down. For rhode island i know i have done a lot at looking at the prohibition party, the longest living minor party in american history. The actually had a movement and rhode island and they were upset. Joshua connecticut this is speculation, but they had really bad apportionment going into the 1960s. I think it was connecticut that was the u. S. Supreme court case that ultimately said one man, one vote. I think they were still doing atlarge elections. They probably had a pretty unrepresentative sample. I dont know about their referendum system, but it was still a fairly nondemocratic system is choosing representatives. Lisa in the Southern States there is also the ways in which race and segregation dramatically reconfigured the way people process prohibition. So come in a lot of Southern States, as African Americans become completely, utterly disenfranchised and denied their legitimate rights to vote. As that gets locked in, all of a sudden prohibition is able to come up as an issue, simply because the people remaining as voters feel secure they can have debates amongst themselves. Race always plays a role whenever youre looking at that. Jeffrey it is so complicated, the crosscutting interests, they are bipartisan on both sides. So, prohibition is repealed and happy days are here again. The depression is here, but people can drink, except they cant because it goes back to the states. States are allowed to decide when you can drink. Many of them retained for county and drakonian dry laws. Lisa we were talking about the very contemporary examples where city still have dry statutes or they can be a large variety of blue laws, which are all sorts of regulations. I remember, not in college, not being able to obtain alcohol after 10 00 p. M. Things like that that seem arbitrary, but are historical relics that are part of the contemporary legal situation. Joshua my family has a house in ocean grove. It was founded as a Methodist Camp meeting, it is still a dry town. The land is owned by the camp meeting. For those of us sinners we had to walk across the bridge to get a drink. Lisa vineland, new jersey. Pasadena. In tennessee, there are a variety of places established as dry communities. For harriman, they stayed dry into the 20th century because the original land deeds have locked into the very deed that you received when you purchased your house, that if you ever bought, sold, or consumed liquor on site, there is a consumption one, that your house reverts back to the land company. There are creative ways to keep in area dry if that is your overall operation. Jeffrey i cannot resist asking, if the Supreme Court is held in the reproductive autonomy cases, the right to privacy includes the right to provide your own have any of these laws challenged the right to autonomy . Lisa i cant think of any. It winds up being less repeal and more, meh, people kind of do what they will do. A sense that this would be something worth the investment of rigorous enforcement is largely lost. They are mostly symbolic. Im sure we can find an exception to that but in most cases it seems to be mostly symbolic. Jeffrey Alcohol Consumption by the 1970s went up to its preprohibition levels . Lisa yes. But at the same time those numbers can be interpreted differently. Even though the average american by the 1970s is consuming us much as the average american in, say, 1915, nonetheless, since that is being shared more widely between men and women, it is distributed more evenly. And because we are no longer counting people who are 14 to 21 in that number. Between those things the rates of consumption are not necessarily as damaging. In other words, where learning to drink better. Jeffrey im delighted. I am sure members will drink very well tonight. A gender case involving men and women that Justice Ginsburg criticized where women who were found to have been driving under the influence were chivalrously escorted home by the police, whereas young men were supposed to be arrested. That was challenged as a violation of gender discrimination. Are there constitutional issues involving gender and alcohol throughout the 1960s and 1970s . Lisa looking at the 19th and 20th century, there is no doubt that mens and womens thinking are perceived very differently. Probably the opposite path. Women who drank in a public way were dismissed that that was a signifier for a whole world of misdeeds and criminal activity, versus for men, the consequences were nowhere near as high. But the idea of a double standard is pretty consistent. I cannot think of anything through 1960s or 1970s. Not on the same way, except for college dorm regulations. Joshua i think it is in the lens of local laws which came crashing down. In the 1960s, the local laws treated College Women very differently than college men. There were curfews imposed on College Women. College men, schools had bizarre rules that said men and women could be in the same dorm room if the door was open and three or four legs were on the floor. Clearly there was a sense that women were to be treated as wards of the college and men were to be treated as creatures who needed to be kept away from those women under all but very prescribed circumstances. That structure comes crashing down in the 1970s at which point men and women are treated equally on equal footing. Jeffrey time for a couple of questions for our spectacular audience. Several about marijuana. Are there parallels to the legalization issues of marijuana today . Lisa i have a take on that. For understanding the repeal that happens during prohibition, the key thing is that context of the Great Depression. Ok, so, with the Great Depression, and legalization happening at that moment, it doesnt immediately inflate to preprohibition levels, simply because there is no apparatus. Nobody has the money to start big factories at the same rate. All of the capital thats required will not be in place. So the question is, with Something Like marijuana legalization, how it works in terms of Business Economy is a little bit different. In part because the development of mass aggro business in terms of marijuana cultivation does not have the cap on it that the Great Depression had put on the same commodification for alcohol. Joshua i think, a, marijuana consumption probably pales in comparison to Alcohol Consumption in the late 19th century. So it is not as jarring and you dont have the same social structures in place that you did in the early 20th century. I mean, church organizations, reform organizations. It is a different context. Lisa there is no saloon equivalent. There is no opium den. There is not the sense that this is tied up with other behaviors that are extraordinary. The occasional laser show. Jeffrey as we close up, several of our guests want to know about the relevance of the prohibition story to today. So, the amendment that seems most likely to get some kind of convention of the states two thirds majority is the balanced Budget Amendment. What does the story of prohibition tell us about the likelihood of, say, a balanced Budget Amendment being adopted today . Lisa i would say the overall lesson from prohibition is, dont make a constitutional amendment if a federal law will do what you want to do because it is much easier to tweak a federal statute. Not that it is easy, but what is involved in trying to tweak a retweak for an amendment is a logistical nightmare. A lot of the work was done to the volstead act. But having an amendment that was so difficult to repair or moderate largely contributed to its failure. So, at some point citizens have to exert some amount of trust that the process itself of negotiating, of deliberation, is going to yield outcomes that will be better in some ways than that permanent status of using the constitution as a lawmaking instrument. Jeffrey the progressive era was an era of constitutional change. The 16th amendment authorized federal income tax, the 17th authorize the direct election of senators, the 18th, 19th womens suffrage. All reflected popular movements. They did not spring out of nowhere but they had been percolating for decades. They were bipartisan movements that were eventually codified into law. What does that tell us about the possibility of seeing an amendment to the constitution today . Joshua i think the similarities then and now to today, it is a period of incredible political engagement. It was also confusing when you have ideological blocs that will coalesce together with their convenient, and they will coalesce against each other when it is convenient. I think there is a story about a article from 30 years ago saying, was there even a Progressive Movement . Did it exist . You had people in favor of prohibition on one day, working with eugenicists on a different set of issues. The next day they would be battling each other on immigration. It was a kind of Ideological CoalitionBuilding Block type of world. I think we are sharply polarized today. To some extent, if the sanders and trump phenomenon shows us anything, it is driven by ideological questions that do not necessarily match up neatly to partisan politics. And so the question is, does that lend itself to lawmaking via a constitutional vehicle . Potentially, but it is messy. I think the lesson is it will be very difficult to predict which groups line up with each other in order to actually support such an initiative. I think it would be surprising, youd be surprised to see who actually aligns with whom. Lisa it is not just the issue, it is also the question of whether you think the constitution is the best vehicle for it. People who might align in one way, might align another way about that particular strategy. Jeffrey on that wise note of caution, i have to thank you both for a superbly engaging and spectacular discussion. Thank you so much. [applause] jeffrey ladies and gentlemen, thanks for joining us. Lets go out and see the american spirits exhibit. Cspan viewers come to philadelphia to see it