You saved the very foundation of our Government. No man can tell where we would have gone, or to what we would have fallen, had not this repeal been brought about.” – Letter to the VCL, 1933.
This is a story about a small, remarkable group of lawyers who took it upon themselves, as a self-appointed committee, to propel a revolution in drug policy: the repeal of the 18th Amendment. In 1927, nine prominent New York lawyers associated themselves under the intentionally bland name “Voluntary Committee of Lawyers,” declaring their purpose “to preserve the spirit of the Constitution of the United States by bringing about the repeal of the so-called Volstead Act and the Eighteenth Amendment.” With the modest platform they thus commanded, reinforced by their significant stature in the legal community, they undertook first to draft and promote repeal resolutions for local and state bar associations.
Their success culminated with the American Bar Association calling for repeal in 1928, after scores of city and state bar associations in all regions of the country had spoken unambiguously, in words and ideas cultivated, shaped, and sharpened by the VCL. As it turned out, this success was but a prelude to their stunning achievements several years later. Due in large part to the VCL’s extraordinary work, the 18th Amendment was, in less than a year, surgically struck from the Constitution. Repeal was a reality. The patient was well.
People could drink. Here’s how it happened. Climaxing decades of gathering hostility towards saloons and moral outrage over the general degeneracy said to be flowing from bottles and kegs, the Constitution of the United States had been amended, effective 1920, to prohibit the manufacture and sale of “intoxicating liquors.” The Volstead Act, the federal statute implementing the Prohibition Amendment, prohibited commerce in beer as well.
At first, Prohibition was popular among those who had supported it and tolerated by others. But before long, unmistakable grumbling was heard in the cities. To meet the uninterrupted demand for alcohol, there sprang up bathtub gin works and basement stills, tight and discrete illegal supply networks, and speakeasies: secret, illegal bars remembered chiefly today as where, for the first time, women were seen smoking in public. Commerce in alcohol plunged underground and soon fell under the control of thugs and gangsters, whose organizations often acquired their merchandise legally in Canada.
Violence often settled commercial differences, necessarily it might be said, as suppliers and distributors were denied the services of lawyers, insurance companies, and the civil courts. On the local level, widespread disobedience of the prohibition laws by otherwise law-abiding citizens produced numerous arrests. Courts were badly clogged, in large part because nearly all defendants demanded jury trials, confident that a jury of their peers was likely to view their plight sympathetically. With the growth of well-organized and serious national anti-Prohibition groups like Americans Against the Prohibition Amendment and the Women’s Organization for National Prohibition Reform, popular support for repeal grew geometrically during the thirteen years of Prohibition. In the midst of the 1932 presidential election campaign, it erupted. It was summer.
Millions were broken from economic depression, beleaguered by crime and corruption, and thirsty. As expected, the Republicans nominated the incumbent President, Herbert Hoover, who was pledged to support Prohibition. The VCL made a stalwart effort to gain a repeal plank in the platform, taking the debate as far as the convention floor, where they were turned away by a preponderance of delegates. The situation was much different with the Democrats. Governor Franklin D. Roosevelt of New York, who led in the delegate count, had carefully avoided taking a position on repeal. At the convention, a successful floor fight produced a pro-repeal plank, drafted and defended by the VCL, in the Democratic platform, which FDR unambiguously endorsed in his acceptance speech. “This convention wants repeal,” he declared. “Your candidate wants repeal.” During the election campaign, FDR made one unequivocal speech endorsing repeal.
Otherwise, both candidates successfully avoided the issue, despite, or perhaps because of, their having taken opposite positions. “Politics is the art of changing the subject,” observed Walter Mondale many years later. When the only thing standing in the way of repeal was the election of FDR, thousands of “wets” and hundreds of “wet” organizations moved unambiguously behind the Democrat. The message was clear: Roosevelt meant repeal, and repeal meant Roosevelt. People wanted both, and Roosevelt triumphed in the election. The number of “wets” in Congress grew significantly.
In the nine states, voters passed referenda repealing the state prohibition laws. This is when the VCL stepped forward and took on the remarkable leadership and responsibility for which they were so uniquely equipped. It required no particular insight into the nature of democracy to know that when the weight of public opinion demanded repeal of Prohibition, Prohibition would be repealed. The question was how. Certainly, lest the repeal process, like any important undertaking, become mired in political and legal entanglements, a thorough and solid legal plan was essential.
For years, repeal advocates had urged that the repeal question should be resolved by conventions in the states, which is one of two methods prescribed in the Constitution for ratifying amendments. The problem was that this method had never been used. Always, the matter of amending the Constitution had been (and to this day still is) decided by state legislatures. But to “wets,” that was out of the question, as state legislatures were notoriously “dry,” being dominated by rural, fundamentalist interests passionate in their defense of prohibition.
(The “one man, one vote” rule would not become law for another thirty-one years.) The repeal resolution had to bypass state legislatures and go to the popularly elected conventions if it were to succeed. But by whom were such conventions to be called? How were delegates to be chosen? When and where were they to convene? Who would preside? By what rules should the convention conduct itself? What rights and privileges would delegates have? How were conflicts between state and federal law to be resolved? Heavy questions, these, and neither Congress nor any state had spoken on the subject. Enter the VCL.
Conferring with eminent Constitutional scholars, conducting exhaustive legal and historical research, feverishly circulating drafts of statutes, memoranda, briefs, summaries, etc. – the working drawings of legal change – the VCL quickly produced a prototype state statute that dealt with all of the organizational problems involved in setting up Constitutional conventions in the states. It was as invulnerable to legal challenge as the best legal minds could make it. Called “truly representative,” the conventions were carefully set up to mirror exactly the preferences of voters. This was accomplished by voters electing delegates pledged for or against repeal and apportioning delegates based on the for or against vote. Thus the convention process became essentially a two-step referendum: voters would speak, and delegates would vote accordingly.
In no way were the conventions to be deliberative bodies. The pretense of debate was not to stand in the way of repeal. Copies of the draft bills were sent to every governor and legislative leader in all the states. Utilizing their impressive network of affiliate members throughout the forty-eight states, as well as their exquisite and plucky legal skills, the VCL provided expert witnesses for legislative hearings, submitted thorough legal briefs, defended legal challenges, answered Constitutional questions – in short, enabled states to prepare for the day that Congress would pass a repeal resolution and send it to the states for ratification. Congress finally loosened the steamroller on February 20, 1933, and by December 5, in thirty-six states (the necessary three-fourths), legislation setting up conventions had been enacted, the conventions had been called, delegates had been elected and convened, and the repeal resolution had passed! The final roll-call vote, in Utah, was eagerly monitored by millions over a national radio broadcast.
Nearly all the states that ratified the repeal resolution relied heavily on the prototype statute promulgated by the VCL. Many enacted it verbatim, while others borrowed heavily from it. Several hours after Utah ratified the 21st Amendment, while millions of Americans were celebrating, the VCL treasurer quietly balanced the books by making a final contribution from his own pocket in the amount of $6.66 and closed them permanently. Who were they? At its peak, the VCL claimed around 3,500 “affiliate” lawyers in all states among its members.
The organization was managed, however, by a tight coterie of nine impeccably established “white shoe” lawyers. For the entire term of its existence, the VCL was chaired by Joseph H. Choate, Jr., son of Theodore Roosevelt’s ambassador to England and an eminent Park Avenue lawyer. The organization’s treasurer was Harrison Tweed, another Harvard/Harvard man, one of the country’s most successful lawyers, and a prime mover in many important civic causes. Choate and Tweed and seven others, similarly pedigreed, called themselves the Executive Committee and prudently managed the affairs of the organization.
They were elite, but by no means elitist. They solicited affiliates in every state and participation by as many lawyers as possible, using ads placed in lawyers’ magazines. Every inquiry brought a thoughtful and deliberate response, as well as an appeal for financial support. The executive committee hired an Executive Secretary, Mrs. H. P. Rhoudy, who ran the national office and visited many state capitals, enlisting local lawyers and political figures in the cause. Her dispatches back to New York ring of diplomacy at its best. What motivated these men? Their formal corporate charter, adopted in 1927, declared their grievances: The Eighteenth Amendment and the Volstead Act violate the basic principles of our law and government and encroach upon the powers properly reserved to the States and the people. The attempt to enforce them has been productive of such evils and abuses as are necessarily incident to violation of those principles, including disrespect for laws; obstruction of the due administration of justice; corruption of public officials; abuse of legal process; resort by the Government to improper and illegal acts in procurement of evidence; infringement of such constitutional guarantees as immunity from double jeopardy and illegal search and seizure.
Surely, the VCL executive committee were men of society where Prohibition was decidedly unpopular, but their declared objective was to excise from the Constitution a vexatious and festering sore. When they achieved that objective, they disbanded. What are the lessons of their success? Certainly, timing, preparation, and the creed of any good lobbyist: that one doesn’t have to be a politician to make policy. A more foreboding lesson is that the United States Constitution, upon which we ultimately rely for the preservation of our form of government and our sacred individual liberties, is highly vulnerable to the force of public opinion. If the 18th Amendment can be repealed in a mere 288 days, cannot the First or the Fifth? As the VCL prototype stature was not specific to repeal, the mechanism they helped put in place likely remains on the books in all states that enacted it.
Leaders of the VCL were railroad lawyers. What railroads paid them handsomely for, they did for the public gratis. They saw a train coming and hurriedly secured all the rights and easements necessary if it were to reach its destination, avoiding a morass of debilitating lawsuits and other legal complications. Had they not made this vital contribution, ratification may well have failed.
