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Prohibition Creeps Back

by Wendy Kaminer


The following article is from Free Inquiry magazine, Volume 24, Number 6.


ProhibitionProhibition was a disaster, as nearly everyone must know. By banning the legal sale of alcohol, the Nineteenth (and stupidest) Amendment to the Constitution, enacted in 1919, effectively promoted illegal sales of sometimes toxic substitutes, spawned lucrative new criminal enterprises, and greatly increased police corruption without decreasing alcohol consumption. Congress and the states repealed Prohibition fourteen years later in a belated fit of common sense. (According to one legend, the Yale Club presciently laid in a fourteen-year supply of alcohol when the Nineteenth Amendment passed; coincidences like this make people believe in conspiracy theories—or God—or at least the value of a Yale education.)

But the calamitous failure of a law or social practice doesn’t condemn it to obscurity; sometimes we treat policy failures of the past not as cautionary tales but as challenges to try again. (Maybe that’s why Americans are considered optimistic.) They surely seem unwilling to give up on the supposed promise of Prohibition. It’s not just the disastrous war on drugs—some drugs, anyway—that demonstrates the faith we invest in the strategy of Prohibition, against all the odds and the evidence that criminalizing particular drugs greatly erodes civil liberties, increases violent crime and the supply of guns on the street, and encourages police corruption without decreasing drug use. Consider the efforts to ban abortion, if not directly then indirectly, by limiting access, shortening the time period in which abortions may be performed legally, endowing fetuses with rights that may someday trump those of pregnant women, and limiting the abortion procedures doctors may employ.

This relatively soft or sneaky approach to Prohibition also characterizes the latest assault on smoking tobacco. Cigarettes will not be outlawed outright; too many voters enjoy or are addicted to smoking. But bans on smoking are increasing. In New York City, you cannot generally smoke indoors, except in your own home (and even there you might encounter complaints from your co-op neighbors). Restaurants, bars, and even private clubs are “smoke free” environments. New York and California have been at the vanguard of a movement to ban indoor smoking; according to a recent article in USA Today, “281 municipalities in 23 states had smoking bans in workplaces, restaurants, or bars.” One entire country, Ireland, mandates smoke-free workplaces, restaurants, and bars. Bans on outdoor smoking are next on the antismoking crusade. In Port Orange, Florida, smoking is banned in public parks whenever children are present, which is probably much if not most of the time. Santa Monica, California, has banned smoking on the beaches.

There are, of course, rational, medical arguments in favor of indoor smoking bans, based on the dangers of secondhand smoke. Outdoor bans, however, are harder to justify, except on moral grounds: a local California politician (quoted in the Los Angeles Times) expressed hope that Santa Monica’s outdoor ban would “catalyze a public discussion about where it is socially acceptable to smoke.”

Popular morality has always played a strong role in the drug war, accounting for the criminalization of drugs like marijuana, associated with the counterculture (and previously with racial minorities), and the celebration of drugs like Ritalin, as respectable as soccer moms. Popular morality is reviving efforts to prohibit alcohol consumption, through indirect restrictions not unlike efforts to ban abortion or smoking. A December 2003 Cato Institute report documents the new “backdoor” approach to prohibition, comprising taxing schemes, the censorship of alcohol advertising, zoning restrictions on bars, and, perhaps most ominously, a significant lowering of the legal limit for drunken driving. According to Cato, the new drinking and driving laws are not needed to control the “seriously inebriated drivers who threaten highway safety”; rather, they are aimed at “embarrassing” generally safe-driving social drinkers and “threatening them with draconian drinking and driving laws to the point where consuming alcohol away from home just isn’t worth the hassle.”

What makes these efforts so ominous? Like most crusades to criminalize behaviors that do not pose serious threats to others, the targeting of moderate drinking threatens individual liberty more than it protects communal health. As the Cato report notes, the antidrinking crusade includes (among other measures) an increase in sobriety checkpoints on the road, allowing police to stop motorists without probable cause and require them to take Breathalyzer tests, and it has encouraged police in two respective jurisdictions to raid taverns in a search for the intoxicated and to conduct warrantless searches of homes on the suspicion that minors might be drinking inside. These and other restrictions on liberty, which enforce public morality more than they ensure public health, confirm a depressing trend. Soon freedom may just be another word for nothing left to use. 


Wendy Kaminer is a lawyer and social critic. Her latest book is Free for ALL: Defending Liberty in America Today (Beacon Press, 2002).

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