Monday, February 19, 2024

An Experiment in Federal Centralization: Prohibition and the Taft Court

Guest Blogger

For the Balkinization symposium on Robert Post,  The Taft Court: Making Law for a Divided Nation, 1921–1930 (Cambridge University Press, 2024).

Lisa McGirr 

Robert Post’s magisterial book is breath-taking. It is impeccably researched, beautifully written, and carefully argued--a model of legal history at its best.  The two volumes provide a rich portrait of the Taft Court, its rulings, and the philosophies guiding its decisions. The book deepens historians’ interpretations of this period as a conservative interregnum between the progressive era and New Deal. Backed by the Court, political elites from employers to three Republican presidents rolled back the clock on the progressive legislative effort to reign in the power of capital and balance economic power more equitably. Post underscores the crucial role of the Taft Court in this rightward turn. Over and again, the Court bolstered the privileges of employers and property, undercut the campaigns for minimum standards of wages and hours, and stymied union efforts to organize. The uncompromising rightwing tilt of the Court led to its loss of public legitimacy, with Senator Robert LaFollette leading the call to nullify the Court’s right of judicial review through a constitutional amendment.  Given current concerns over the Court’s politicization and rightward tilt, this history is relevant and timely. It serves as a reminder that concerns over partisanship and the porous boundaries between the Court’s Justices and powerful private economic interests are far from new.

          There was one arena, however, that stood in tension with the Court’s over-arching opposition to government centralization: Prohibition.  The effort to ban the trade in alcohol from shore to shore was, in Post’s word’s, an extremely “disorienting legal innovation.”  Post puzzles through the stark tensions between the Taft’s court’s dominant legal conservatism in economic arenas, and its uncompromising backing of Prohibition. The Court’s “four-square” stand for enforcement was, in some ways surprising, given Taft’s own strong opposition to Prohibition prior to its ratification. In 1914, Taft labeled the Prohibition amendment, “a dangerous proposition” continuing to oppose it up until ratification. Once passed, however, Post writes, he stood as an “unfailing tower of strength to the prohibition’s cause.”

In a particularly illuminating discussion, Post convincingly argues that the massive flouting of the law required a rethinking of conservative legal doctrine: Prohibition forged a coalition of conservatives like Taft and progressive jurists such as Holmes who now embraced positive law and muscled federal authority in backing strict enforcement. Indeed, faced with Prohibition’s unintended consequences, jurists on both sides of the political spectrum of the Court, rethought their earlier ideas. In contrast to Holmes, progressives like Brandeis became increasingly skeptical of the use of positive law to reshape custom and opposed the expansion of government powers to enforce the law. Brandeis’s dissent in Olmstead v. United States (1928), foregrounded a right to privacy, an idea that would only later become a core part of liberalism, with Supreme Court decisions such as Griswold v. Connecticut (1965).  Prohibition, Post tells us, generated innovative thinking among a segment of conservatives and progressives. That innovative thinking would largely disappear after the 21st amendment, only to emerge again several decades later.

Post also argues that the Taft court in its Prohibition jurisprudence, may have paradoxically opened the door to wider legitimacy of state building in the 1930s.  Indeed, the fear of the conservatives like Taft who had opposed Prohibition proved prescient. Prohibition, in continuing the trend toward more expansive central governance reveals a surprising but significant line of continuity between the Progressive era and the New Deal. Prohibition, arguably, provides a missing link a between the two periods of state growth.

Post emphasizes the irony of Taft’s contribution to the growth of central state authority.   Yet, Taft’s abandonment of localism to enforce Prohibition should, perhaps, not come as too much of a surprise. After all, conservatives frequently espoused localism in principle, while abandoning it when it collided with the protection of property rights.  In addition, the government’s primary role in enforcing Prohibition was to eradicate the traffic in liquor through criminal law. Prohibition massively expanded central state authority, but primarily in the realm of crime control, policing, and surveillance.  As the rise of mass incarceration and federal penal approaches toward drugs since the 1980s and beyond suggests, conservative jurists have historically been more amenable to backing the government’s law and order responsibilities over its regulatory bureaucracy.    

Still, Post is convincing in pointing to the ways the Taft Court’s Prohibition rulings upended customary understandings of federal and state responsibilities. Indeed, Prohibition cracked open a door to other forms of regulation in its wake. The visibility of government authority throughout the Prohibition era, and new institutional spaces of power--from the growing FBI to the new Federal Bureau of Narcotics--increased state authority and visibility permanently. As I argue in my book, The War on Alcohol (itself influenced by Post’s article “Federalism, Positive Law, and the Emergence of the American Administrative State),” this growth of government authority enabled even Prohibition’s worst critics to seek to use that new muscle and to redirect its energies during the Great Depression. The conservative leaders of the Association Against the Prohibition Amendment had viewed the law as the opening wedge to the growth of government authority in other spheres. It turns out they were right. Of all the unintended consequences of Prohibition, this has proved one of its most significant, enduring, if under-appreciated legacies. It surely would have been Taft’s worst nightmare had he lived to see the tremendous growth of the administrative state during the New Deal that Prohibition helped engender. 

Lisa McGirr is the Charles Warren Professor of American History at Harvard University. She can be reached at



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