I got an email from Bob Skilnik yesterday. Bob, you will recall wrote Beer and Food: An American History which I recently enjoyed and reviewed. His email, however, is not about the pleasures of his book but the characterization of today, April 7, as the day when Prohibition was repealed in the USA some 74 years ago. Here is Bob's email in full with a bit of format changing:
For a beer historian, there's nothing more aggravating than a writer who plays fast and loose with the facts. I was reviewing a press release yesterday from the Brewers Association (beertown.org) about April 7, 1933 and how that date signified the end of Prohibition in the U.S. Of course, if you subscribe to this bit of nonsense, it makes it even harder to ignore December 5, 1933, when the 21st Amendment to the U.S. Constitution was ratified, ending the scope of the 18th Amendment and National Prohibition. I contacted Julia Herz at the BA and pointed out the real story of April 7 vs. December 5, and to her credit, she changed the copy on BA's website. From the original verbiage on the BA site:
"While the full repeal of Prohibition came on December 5, 1933, an amendment to Prohibition legalized beer with 3.2 percent alcohol by weight (4.0 percent by volume) starting on April 7 of that year."
Incorrect. There was no amendment to Prohibition that legalized beer with 3.2 percent alcohol. On March 21, 1933, the United States House of Representatives completed action on the Cullen-Harrison bill, permitting the resumption of the manufacture and sale of 3.2% beer and light wines in those states that were now legally considered wet. This was NOT an amendment to the Constitution, merely a revision of the Volstead Act which defined any beverage with an alcoholic content of .5 % or less by volume as "intoxicating":
TO PROVIDE FOR THE ENFORCEMENT OF WAR PROHIBITION.
The term "War Prohibition Act" used in this Act shall mean the provisions of any Act or Acts prohibiting the sale and manufacture of intoxicating liquors until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States. The words "beer, wine, or other intoxicating malt or vinous liquors" in the War Prohibition Act shall be hereafter construed to mean any such beverages which contain one-half of 1 per centum or more of alcohol by volume: . .
Now with the upcoming presentation of "The American Brew," the original BA web copy was playing fast and loose with American beer history:
"The premiere coincides with the anniversary of the Repeal of Prohibition."
Nope. Not so. The 18th Amendment to the Constitution was repealed on December 5, 1933 after final ratification by the states. April 7 brought back beer with an alcoholic strength of 3.2%.
"It was on this date in 1933 that newly elected President Roosevelt spurred Congress to modify the Volstead Act..."
Wrong again. On March 13, President Roosevelt used the bully pulpit of his office to formally recommend to Congress a looser interpretation of the Volstead Act, which limited alcohol in beer to one-half of one percent: "I recommend to the Congress the passage of legislation for the immediate modification of the Volstead Act, in order to legalize the manufacture and sale of beer..." Finally, on March 21, 1933, the United States House of Representatives completed action on the Cullen-Harrison bill, permitting the resumption of the manufacture and sale of 3.2% beer and light wines in those states that were now legally considered wet. The next morning, President Roosevelt was scheduled to sign the bill, but a bureaucratic mix up postponed his signing until March 23.
Today, however, the web copy on the Brewers Association website has been changed after I contacted them yesterday. It now reflects the actual history of beer returning to the U.S. and the end of National Prohibition. I tip my hat to Julia and the BA for correcting some real errors in their original web copy. Unfortunately, I've also contacted some beer writers and brewery web sites to explain to them that what they're spouting is just one more example of often-repeated errors in American beer history.
Guess what? They're blowing me off. Actually, they're blowing off the actual history of the end of National Prohibition for a fantasy that equates the return of beer with the end of Prohibition. Of course, the fact that beer was brewed to a ceiling of 3.2% alcohol by weight (no "extreme" beers) and that you couldn't purchase ardent spirits nor wine seems to be irrelevant to these history spinners. But worst of all is that annoying date of December 5, 1933, the date that the 21st Amendment to the Constitution was passed, is being ignored. It's all explained in Beer and Food: An American History, but I guess revisionist history works best in the beer community. Such a shame.
What to make of all that? It is pretty clear from the original quote on the Brewers Association website that there was an legal absurdity being suggested: a change of rights made in December 1933 that is somehow effective in April 1933. Perhaps fine for some technical classes of rights but, if you think about it, it is pretty hard to backdate public access to beer.Beyond that it gets a bit fuzzy for me. While I have two law degrees, I did not take one course in US constitutional law. Like here in Canada, I am aware that prohibition was multi-jurisdictional meaning that it is the construct of laws at the Federal, state/provincial and municipal levels. As a result, there were many prohibitions with various introduction and repeal dates. Vermont and Rhode Island appear to have even had prohibitions from the early 1850s to the 1860s.¹
But Bob's point relates to only one point in time - the repeal of prohibition within the US Constitution and I think he is right. The Cornell Law School in Ithaca New York has a great web based annotated commentary on the US Constitution which includes this discussion on the 21st Amendment and this is where I start to get uncertain as that website confirms the wording includes the following section:
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
So did it come into force as of the date of the original passage or on the ratification? Clearly by its own words, on ratification which is the process by which a certain number of states consent to the alteration of the set of master laws for the entire nation. And if you look at this handy-dandy chart of the ratifications of the US Constitution, you see that the 21st Amendment was "proposed" on February 20, 1933 and "ratified in 288 days" which I take to be December 5, 1933 without actually doing the math.Why is anyone suggesting today has any significance? All that happened was the legislative permission to brew beers up to 3.2% instead of 0.5% as the definition of intoxicating was changed. Certainly a big change but not a change to the Constitution. From what I can gather borrowing heavily from Wikipedia and other sources a slacker can borrow from is that the legislative process proceeded thusly:
♦ Congress proposed the Eighteenth Amendment on December 18, 1917. Ratification was completed on January 16, 1919. It stated in part: "After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."
♦ What is called "The Volstead Act" is the popular name for the National Prohibition Act. It enabled Federal enforcement of the Eighteenth Amendment to the U.S. Constitution, which had banned the "manufacture, sale, or transportation of intoxicating liquors" in the United States...The bill was vetoed by President Woodrow Wilson but overridden by Congress on the same day, October 28, 1919. Importantly for present purposes, the Volstead Act defined intoxicating liquor as any beverage over 0.5% alcohol.
♦ On March 23, 1933, President Franklin Roosevelt signed into law an amendment to the "Volstead Act" known as the "Cullen-Harrison Act" - no longer called a bill once in force - allowing the manufacture and sale of "3.2 beer".
♦ I can't find a copy of the "Cullen-Harrison Act" but I understand that it sets April 7, 1933 as the day on which this change in the legal definition of the degree of alcohol content which is not intoxicating is effective.
So, Prohibition was not repealed on 7 April 1933 and brewers were not even allowed to brew intoxicating beers as of that date. All that occurred was the alteration of the definition of intoxicating, so today is the day when something approximating the thinnest beer-like substance excusable was allowed. And it is still an important law as many 3.2% laws still exist in the US as "Oklahoma convenience and grocery stores cannot sell beer or wine coolers with more than 3.2 percent alcohol. Big-name domestic breweries, including Anheuser-Busch, Miller and Coors, brew lower-point beer for the Sooner State and five others. Colorado, Kansas, Missouri, Minnesota and Utah also sell 3.2 beer. Liquor stores in Oklahoma can sell beer with higher alcohol content, but they have more rules to follow. For one, they have to sell beer at room temperature."
So, there you go. Not the end of prohibition so much as the beginning of the finger-wagging conservative social engineering that continues to fail miserably in its goals. Reason to celebrate today? Hardly.
¹ Great American Beer, p.25.