Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era

By Post, Robert | William and Mary Law Review, October 2006 | Go to article overview

Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era


Post, Robert, William and Mary Law Review


ABSTRACT

This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control.

During the 1920s the Supreme Court was a strictly "bone-dry" institution that regularly sustained the administrative and law enforcement techniques deployed by the federal government in its losing effort to prevent the manufacture and sale of liquor throughout the continental United States. This is surprising, because the Taft Court was in other respects dominated by conservative Justices, who were temperamentally opposed to the expansion of the national administrative state, particularly in contexts in which the national government sought to displace local police power. Prohibition represented the greatest expansion of federal regulatory authority since Reconstruction. It caused a major crisis in the theory and practice of American federalism, as the national government, which lacked the courts or police necessary for implementing the Eighteenth Amendment, sought to conscript state judicial and law enforcement resources.

Close inspection reveals that the Taft Court's support for prohibition came from an unlikely alliance between two liberal Justices--Holmes and Brandeis--and three conservative Justices--Taft, Van Decanter, and Sanford. Three conservative Justices--McReynolds, Sutherland, and Butler--remained adamantly opposed to prohibition.

Holmes's and Brandeis's support of prohibition likely reflects pre-New Deal liberalism's conviction that courts ought to defer to democratic lawmaking. This conviction was sorely tested by the flagrant and persistent defiance of prohibition, as well as by the repressive criminal and administrative techniques used to secure prohibition's enforcement. Not only did progressives grow suspicious of federal regulatory efforts to enforce sumptuary legislation, but they began to question the legitimacy of positive law that lacked resonance with the customs and mores of the population. These trends in American liberalism are visible in Brandeis's famous dissent in Olmstead. They would vanish with the advent of the New Deal and not reappear until the 1960s, in cases like Griswold v. Connecticut, at a time when the American administrative state had become as effectively entrenched as it had been during prohibition in the 1920s.

The opposition to prohibition of McReynolds, Sutherland, and Butler represents the traditional pre-New Deal judicial conservative position that positive law, particularly positive national law, was to be judicially disciplined whenever it departed from customary social values. The vigorous support of prohibition by otherwise conservative Justices like Taft, Van Decanter, and Sanford, by contrast, represents a new development in American judicial conservatism. These Justices fused a conservative belief in social control with an embrace of legal positivism. This fusion disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state.

The brief constitutionalization of prohibition, in other words, forced Justices on both the right and the left to stop debating whether there should be an American administrative state, and required them instead to reconstruct their judicial philosophy on the assumption that the administrative state was an unalterable reality. It provoked a brief efflorescence of judicial perspectives that would not come into full flower until late in the twentieth century. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.