From 1920 until 1933, the manufacture, transportation, and sale of alcoholic beverages was banned in the United States under the policy known as Prohibition, enshrined in the Eighteenth Amendment to the U.S. Constitution. While some states had already gone dry, Prohibition on the national level represented a huge victory for the American temperance movement that had existed for a century. The policy represented a massive expansion of federal power, as the government made the most extensive effort in its history to regulate the daily habits and lifestyles of the American people.

Prohibition produced myriad effects. It strained law enforcement resources at the federal, state, and local levels. It spawned an explosion of official corruption. It turned millions of otherwise law-abiding citizens into criminals virtually overnight. It spurred a rise in organized crime and the deadly gang violence that came with it. And it overwhelmed the federal judicial system, which was ill-equipped to handle the deluge of cases that flooded the courts. After thirteen years, the difficulties of enforcement, the rampant corruption, the widespread disrespect for the law, and the economic strain brought about by the Great Depression combined to put an end to the Prohibition era. This timeline tells the story of Prohibition with a particular emphasis on the federal courts—a topic that is largely omitted from many popular histories of the subject.

Wartime Prohibition Measures (click to learn more)

In the standard historical narrative, national Prohibition began on January 17, 1920, the date the Eighteenth Amendment and its enforcement vehicle, the National Prohibition Act, or Volstead Act, became effective. The start of constitutional Prohibition, however, did not bring about as dramatic a change in national habits as some believe. Well before that date, the federal government had used its war powers to promulgate extensive alcohol regulations during World War I.

The first restrictions came via the Selective Service Act of May 18, 1917, which made it "unlawful to sell any intoxicating liquor, including beer, ale, or wine, to any officer or member of the military forces while in uniform." For purposes of this Act, the War Department considered beverages containing at least 1.4% alcohol to be intoxicating, a provision less strict than the 0.5% standard imposed by later legislation. Additionally, as authorized by the act, the armed forces began in the spring of 1918 to set up "dry zones" within a five-mile radius of military camps where alcohol could not be sold.

A few months later, on August 10, 1917, the Food and Fuel Control Act (or Lever Act), prohibited the use of "food, fruits, food materials, or feeds . . . in the production of distilled spirits for beverage purposes." The Act also authorized the president "to commandeer any or all distilled spirits" deemed necessary for production of war supplies.

Between December 1917 and March 1919, President Woodrow Wilson used his expanded wartime presidential powers to issue three alcohol-related proclamations. The first prohibited the brewing of malt liquor, except ale and porter, containing more than 2.75% alcohol. Wilson later extended the provision to all malt beverages, whether or not they contained alcohol, and finally limited the ban to "intoxicating malt liquors."

The most significant war-related liquor law was the Wartime Prohibition Act. Despite the fact that it did not become law until November 21, 1918—ten days after the armistice that ended fighting in Europe—the Act's stated purpose was "conserving the man power of the Nation, and [increasing] efficiency in the production of arms, munitions, ships, food, and clothing for the Army and Navy." The Act provided that, beginning on June 30, 1919, until the end of the war and completion of demobilization (as determined by the president), selling distilled spirts, beer, wine, "or other intoxicating malt or vinous liquor" for beverage purposes (other than for export) would be illegal and that no food products could be used to make intoxicating beverages.

When the Wartime Prohibition Act went into effect in the summer of 1919, the fighting had been over for more than six months and the Treaty of Versailles had just been signed (though not by the United States, as the Senate had rejected it). In consequence, many believed the Act was no longer necessary. Nevertheless, the Volstead Act passed by Congress in October 1919 kept wartime prohibition in force and added measures for its enforcement. Wilson vetoed the Volstead Act on the grounds that the emergency had passed and wartime prohibition was no longer needed. Congress overrode his veto.

The Wartime Prohibition Act generated litigation from sellers of alcohol who claimed that because the war was over the Act was no longer in effect and could not be enforced. In Hamilton v. Kentucky Distilleries, decided in December 1919, the Supreme Court held that the conditions for terminating the Act did not yet exist. In his opinion for the Court, Justice Louis Brandeis pointed out that the United States had not signed a peace treaty, the federal government was still exercising its war powers to control the nation's railroads, "other war activities" had not concluded, and "it can not even be said that the man power of the nation has been restored to a peace footing." Although President Wilson had referred specifically to the "demobilization of the army and navy" in his message vetoing the Volstead Act, Justice Brandeis deemed the president to have used those words "in a popular sense." If Wilson considered demobilization formally concluded, Brandeis asserted, he would have issued a proclamation to that effect.

In January 1920, the Court decided Ruppert v. Caffey, which was a challenge to the wartime prohibition provisions of the Volstead Act. Unlike the original Wartime Prohibition Act, which courts had interpreted to prohibit only intoxicating beverages, Title I of the Volstead Act applied wartime prohibition to any beverage containing 0.5% alcohol or above. The plaintiff, a maker of non-intoxicating beer, argued first that wartime prohibition had expired, and second that even at the height of its war powers, Congress did not have the authority to ban non-intoxicating beverages. The Court rejected both contentions by a 5–4 vote. In another opinion by Justice Brandeis, the majority held that, for the reasons given in Hamilton, wartime prohibition had not expired. As for the scope of congressional power, Brandeis wrote, it was immaterial whether or not the plaintiff’s beer was intoxicating. The Court would not second-guess the judgment of Congress that a ban on intoxicating beverages must include any containing alcohol, if enforcement was to be effective.

Justice James McReynolds filed a dissenting opinion in which Justices William R. Day and Willis Van Devanter joined. (Justice John H. Clarke dissented separately, without issuing or joining in a written opinion.) The Court's conservatives believed that the scope of congressional power during wartime should depend on "actual necessities consequent upon war." The question as they saw it was whether, on the date the Volstead Act became law, a ban on non-intoxicating beverages "could afford any direct and appreciable aid in respect of the war declared against Germany and Austria." Reviewing the circumstances, Justice McReynolds pointed out that by the time the Volstead Act was passed, the military forces had returned home, demobilization had been completed, the production of war materiel had ceased, and much of what remained had been sold. He also quoted several statements by President Wilson to the effect that the war was over. As a result, McReynolds could see "no reasonable relationship" between the war and the banning of the plaintiff's product.

The United States remained at war, technically speaking, for a year and a half after the Volstead Act went into effect. On May 27, 1920, Wilson vetoed a congressional resolution that would have formally ended the war by declaring a state of peace with Germany and Austria-Hungary. With the U.S. Senate having rejected the Treaty of Versailles, Wilson opposed making peace without demanding any action from Germany to repair the wrongs it had committed. Not until President Warren G. Harding signed the Knox-Porter Resolution on July 2, 1921, would U.S. participation in World War I formally end.

National Prohibition Cases (click to learn more)

Prohibition, which entailed federal regulation in an area traditionally left to the states, quickly resulted in an unusual attempt to contest the constitutionality of a constitutional amendment. At the dawn of Prohibition, the states of New Jersey and Rhode Island and private parties in several other states sued federal officials for an injunction against the enforcement of the Eighteenth Amendment. Seven separate lawsuits were consolidated for argument before the Supreme Court under the name National Prohibition Cases (1920). The plaintiffs asserted that the amendment invaded the sovereignty of the states by intruding on their traditional police powers, adding that federal enforcement regarding alcohol was anti-democratic because people expected their daily habits of life to be regulated not by a distant federal government but instead by state and local officials with whom they were more familiar. The plaintiffs also claimed that the amendment's grant of "concurrent" enforcement power meant that the federal and state governments must act jointly; in other words, federal Prohibition legislation such as the Volstead Act could not operate within a state without that state's consent.

In a brief opinion, the Court found the Eighteenth Amendment valid, holding that it had been properly executed and was within the amending power provided by Article V of the Constitution. The Court also rejected the plaintiffs' contention that the federal and state governments exercised their Prohibition powers in separate spheres, with each being supreme within its respective sphere, such that states could refuse to be bound by federal Prohibition legislation. Perhaps finding it premature or unnecessary to the resolution of the case to give a precise definition to the term "concurrent power," the Court explained what the phrase did not mean. "The words ‘concurrent power,'" wrote Justice Willis Van Devanter for the majority, "do not mean joint power or require that legislation . . . by Congress, to be effective, shall be approved or sanctioned by the several States or any of them; nor do they mean that the power to enforce is divided between Congress and the several States along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs."

Justices Joseph McKenna and John Clarke each wrote dissenting opinions taking issue with the majority's assertion regarding "concurrent power." Justice McKenna believed the term required "united action between the States and Congress, or, at any rate, concordant and harmonious action." Similarly, Justice Clarke asserted that Congress and the states had been granted equal power to enforce the Eighteenth Amendment and that no state could be bound by the Volstead Act without its consent.

The presence of Justices Willis Van Devanter, Oliver Wendell Holmes, Jr., and Louis Brandeis in the majority on the National Prohibition Cases and the skepticism of Justice James McReynolds—who concurred in the result but found it premature to construe the Eighteenth Amendment before the Court had been called upon to resolve specific controversies—represented those justices' positions on Prohibition generally. During the chief justiceship of William H. Taft, which lasted from 1921 to 1930, that is, for most of Prohibition, the Court was divided into three factions. Three members of the Court—Justices McReynolds, Pierce Butler, and George Sutherland (who succeeded Justice Clarke in 1922)—opposed Prohibition from a traditional conservative point of view. They disfavored a major expansion of federal legislative power and further governmental intrusion into the lives of American citizens. Justice Harlan Stone (who succeeded Justice McKenna in 1925) was not as staunchly opposed to Prohibition but sometimes voted with this bloc of justices. The Court’s other conservatives—Justices Van Devanter and Edward Sanford and Chief Justice Taft—supported enforcement of Prohibition not on policy grounds, but because they saw widespread disobedience to the alcohol ban as a threat to the legal order itself. Justices Holmes and Brandeis were the only members of the Court who supported the expansion of national authority that Prohibition represented and favored deference to this expression of legislative authority.

Olmstead v. United States (click to learn more)

Roy Olmstead, a former Seattle police officer (he left the force after pleading guilty to bootlegging in 1920), led a successful criminal enterprise that illegally imported alcohol from Canada in ships supposedly bound for Mexico. Using his connections with the local police, Olmstead built a large criminal network that was difficult for federal authorities to break using traditional law enforcement techniques. In 1924, federal investigators resorted to wiretaps of telephones at Olmstead's home and office—in violation of Washington state law—to capture incriminating information. In combination with evidence obtained through Canadian police, the wiretapped information eventually led to the seizure of records supporting charges of conspiracy to violate the Volstead Act against Olmstead and dozens of other defendants.

At trial, the transcripts of the wiretapped conversations were not themselves admitted into evidence, though witnesses used them to refresh their recollections while testifying, and District Judge Jeremiah Neterer permitted the admission of records and of other incriminating evidence obtained as a result of the wiretaps. Olmstead was convicted and sentenced to four years imprisonment and an $8,000 fine. On appeal to the U.S. Court of Appeals for the Ninth Circuit, Olmstead's lawyers argued that the wiretaps, and the use of any evidence obtained through them, violated the Fourth Amendment's prohibition on unreasonable searches and seizures and the Fifth Amendment's protection against self-incrimination. The appeal was unsuccessful, however, as a panel of Ninth Circuit judges ruled against Olmstead by a 2–1 vote.

Olmstead appealed to the Supreme Court of the United States and, again, a divided Court ruled against him. Chief Justice William Howard Taft emphasized that government agents had not physically entered Olmstead's home or office and reasoned that the Fourth Amendment "can not be extended and expanded to include telephone wires reaching to the whole world from the defendant's house or office. The . . . wires are not part of his house or office any more than are the highways along which they are stretched."

Justice Louis Brandeis wrote the most famous and legally significant of the four dissenting opinions. The Fourth and Fifth Amendments, Justice Brandeis argued, reflected a wide-ranging concern with excessive government intrusion against privacy and should not be interpreted too narrowly or too literally. It was misguided, he reasoned, to expect the authors of these amendments to have anticipated modern innovations like the telephone. Similarly, he reasoned that the Fifth Amendment should not be limited to self-incrimination by physical coercion. Modern technology had opened up new means, including phone taps, for the government to procure self-incriminating evidence against an individual's will.

In 1934, Congress passed the Federal Communications Act, which provided that "no person not being authorized by the sender shall intercept any communication and divulge or publish the existence, contents, [or] substance." In Nardone v. United States (1937), the Supreme Court interpreted the statute to prohibit warrantless wiretapping by federal agents.

Although Brandeis was in the minority in Olmstead, his view of the right to privacy eventually won over a majority of the Court. In Katz v. United States (1967), the Court ruled evidence obtained through a device attached to a public telephone booth inadmissible based on a telephone caller’s reasonable expectation of privacy.

Legislative Proposals to Reduce Court Congestion (click to learn more)

In late 1929, the Wickersham Commission proposed several pieces of legislation meant to work in conjunction to reduce the court congestion caused by Prohibition. The first, enacted in December 1930, amended a section of the U.S. criminal code to define "petty offenses." Previously, the code had defined offenses punishable by death or more than one year in prison as felonies and all other offenses as misdemeanors. The amendment specified that any misdemeanor for which the sentence did not exceed six months in jail without hard labor or a fine of $500 would be termed a petty offense. Petty offenses, according to the amended statute, could be prosecuted by information (that is, on the initiative of a prosecutor) rather than requiring an indictment by a grand jury.

The classification of some crimes as petty offenses was meant to work in harmony with another statute reducing penalties for certain minor Prohibition violations. The Increased Penalties Act of 1929 (or Jones Act) had strengthened some of the maximum punishments provided by the Volstead Act. Although Congress expressed in the Act the hope that courts would "discriminate between casual or slight violations" and more serious ones, courts applied the increased penalties more strictly than Congress had intended. As a result, Congress amended the Increased Penalties Act in January 1931, giving precise definitions to casual or slight violations. These offenses included manufacturing or selling liquor not exceeding one gallon in quantity, assisting in making or transporting liquor "as a casual employee only," and transporting liquor not exceeding one gallon "by a person not habitually engaged or employed" in activities that violated Prohibition. By making the maximum penalty for these offenses a fine of $500 or six months in jail without hard labor, the law converted these crimes to "petty offenses" under the terms of the statute it had enacted the previous month.

The most complex and controversial piece of the puzzle was a proposal that would have provided for "summary prosecution" of petty offenses. The plan relied on U.S. commissioners, officers of the U.S. district courts who were the forerunners of modern U.S. magistrate judges (though not deemed judges and having far fewer powers). The bill provided that a defendant who pleaded not guilty would have a hearing before a commissioner who would then make a report to the court and recommend for or against conviction. The accused could demand a trial by jury in two circumstances: if the commissioner recommended conviction or if a district judge disapproved a commissioner's recommendation of acquittal and found the defendant guilty.

Proponents of the bill believed that disposing of minor criminal cases in summary fashion would increase efficiency and allow courts to clear the backlog that Prohibition had created. Opponents of the bill asserted that on the contrary, it would cause only delay and confusion. In a minority report opposing the bill, four members of the House Judiciary Committee called its provisions "circuitous" and "indirect." The bill sought to make trial judges out of commissioners, they asserted, but still required district judges to pore over the entire record of a case to determine whether to accept or reject the commissioner's recommendation.

More importantly, the committee members in the minority believed the bill to be unconstitutional. "The defendant cannot be deprived of a jury trial in the first instance, and the defect is not cured by the remote and technical right of a jury trial provided in the bill," they wrote. While the federal courts recognized the existence of a category of minor offenses not covered by the Sixth Amendment right to a jury trial, it was not until the 1960s that the Supreme Court defined such offenses as those subject to less than six months' imprisonment. As a result, it was uncertain whether the courts might hold the summary prosecution bill to violate the Sixth Amendment. Because of concerns as to its efficacy and constitutionality, the bill failed to pass, leaving unfinished the Wickersham Commission's plan to improve the federal courts' handling of Prohibition cases.

Al Capone (click to learn more)

Al Capone was the most notorious gangster of the Prohibition era, leading a violent and ruthless syndicate between 1925 and 1931 that by some estimates made over $100 million per year, primarily from bootlegging and gambling. Despite his prominence, his great wealth, and the frequent murders of rival gangsters carried out at his behest, Capone was never successfully prosecuted for bootlegging, extortion, racketeering, or murder. Instead, the U.S. government eventually proved that Capone had failed to pay taxes on the income from his illegal operations.

Initially, Capone pled guilty based on an agreement with the government that he would serve two and a half years in prison, but he switched his plea to not guilty when Judge James H. Wilkerson of the U.S. District Court for the Northern District of Illinois rejected the deal, insisting that Capone would not be permitted to bargain with the court. Before trial began, an informant presented one of the Treasury agents who had investigated the case with evidence that Capone had tampered with the jury pool. As a result, Judge Wilkerson switched his jury pool with that of another judge who was also about to begin a trial. Because of the large amount of evidence meticulously gathered by Treasury agents during their lengthy investigation, Capone was convicted on several counts of federal income tax evasion on October 18, 1931. Judge Wilkerson sentenced him to eleven years in prison. Capone was released in 1939 but was in poor health and never resumed leadership of his gang, which had followed the trend of others involved in organized crime by turning to alternative sources of illegal income such as gambling, drugs, and prostitution. He died in 1947 at age 48.

While many popular histories of Prohibition do not include a significant focus on the federal courts, there is a consensus among scholars of legal and judicial history that Prohibition was highly consequential for the federal judiciary. The courts suffered from a crushing workload and a blow to their prestige that ended only with Prohibition's repeal. The impact of Prohibition did not dissipate entirely, however, as some of the principles established in that era have remained alive in federal case law.