Burns and Novick’s Prohibition: Fahey on Episode Two

Editors’ Note: David Fahey returns to comment on Episode Two of the Prohibition series.  Readers may also wish to take a look at David’s take on Episode One, or Frankie Bailey’s take on Episode Two.

In contrast to the previous episode that covers a hundred years, “A Nation of Scofflaws” looks at only the early and mid-1920s.  This short span of years allows Burns and Novick to develop stories.  Since the time period is relatively recent, “Scofflaws” can provide brief comments by people who were children during Prohibition.  They include sons and a daughter of bootleggers and a Supreme Court Justice who grew up in a teetotal family.  “Scofflaws” emphasizes the widespread and increasing defiance of National Prohibition.  It acknowledges that total alcohol consumption declined at least during the early 1920s.  Although there is little or nothing about upper middle class “flappers” dancing and drinking at speakeasies, there is plenty about illegal drinking and legal drinking too.  The Volstead Act that interpreted the Eighteenth Amendment’s ban on the manufacture and sale of intoxicating drink was both severe and riddled with holes.  Some people had expected that beer and light wines would remain legal, but the Volstead Act allowed only the weakest “near beer.”  On the other hand, drinking was never illegal and there were all sorts of exceptions about access to alcoholic beverages.

Exemption form for medicinal alcohol
Feeling Dry? Consult Your Physician

Prior to the effective date for prohibition, the Yale Club stocked a fourteen-year supply of liquor that didn’t run out before Repeal.  With the help of a rabbi’s certification, Jews could obtain alcohol for household religious observances.  The membership of Jewish congregations grew ten-fold.  “Scofflaws” documents the failures of enforcement, in part because most states failed to provide the federal government support.  Federal agents were few and often corrupt.  The energetic Mabel Walker Willebrandt (1889-1963), assistant attorney general, stands out as the exception in federal law enforcement. 

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Burns and Novick’s Prohibition: Bailey on Episode Two

Editors’ Note: The Points review of Prohibition continues with a consideration of Episode Two: “A Nation of Scofflaws,” which examines the rise of the illicit alcohol market and the state response.  Thanks to Prof. Frankie Bailey for providing her assessment (readers can learn more about Prof. Bailey at our Guest Bloggers page).  Readers interested in Episode One can read David Fahey’s take here.

In Episode Two: “A Nation of Scofflaws,” legal scholar Noah Feldman observes: “To pass a law in the real world means nothing; to enforce the law means everything.” The inability to enforce the Volstead Act is the focus of the second episode of Prohibition. In 1924, the Boston Herald sponsored a contest to come up with a new word to describe someone who flaunted the law by drinking alcoholic beverages that had been illegally made and sold. The newspapers received 25,000 entries, and awarded the $200 prize to the two readers who independently coined the same word – “scofflaws.” As the episode tells us, by 1924, Americans across the country were flaunting the Volstead Act.
Episode Two deals with the reasons Prohibition was not only “an experiment that failed”

Smashing a Beer Keg
Episode Two: Whole Lotta Smashing Going On

but an experiment that had little chance of succeeding. These reasons are familiar to students of Prohibition: (1) the draconian language of the Volstead Act which banned not only hard liquor but beer and wine and created resistance and resentment; (2) the decision not to place the federal Prohibition agents under the Civil Service system which allowed politicians to hand out the positions without regard to the qualifications of the applicants and/or their commitment to enforcement of the liquor law; (3) the failure to hire a sufficient number of Prohibition agents or to pay them an adequate salary; (4) the lack of interest at the state level in committing manpower and other resources to enforcing an increasingly unpopular federal law; (5) the ability of organized crime to corrupt local, state, and federal politicians and law enforcement agents; and (6) the demands placed on the criminal justice system – particularly the courts – to process the cases brought under the Volstead Act.

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