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Prohibition didn't require an amendment, except insofar as the people pushing for it wanted to make it hard to overturn. State and local governments had outlaw

Prohibition didn't require an amendment, except insofar as the people pushing for it wanted to make it hard to overturn. State and local governments had outlawed alcohol since the founding. If outlawing alcohol were somehow special, that wouldn't have been possible.

jeffdavis 7y ago
"State and local governments had outlawed alcohol since the founding." That's because the scope of state power is very wide in the Constitution. The federal government is much more constrained (or was intended to be), and outlawing alcohol with an act of Congress would be a violation of the 10th Amendment. Interestingly, even the 1st Amendment did not originally prevent states from infringing on the freedom of speech. It begins "Congress shall make no law...". Later the 14th Amendment changed that through "incorporation", which is a process I don't fully understand.
- joshuamorton 7y ago
  > The federal government is much more constrained (or was intended to be), and outlawing alcohol with an act of Congress would be a violation of the 10th Amendment. Commerce clause, among others. There are all kinds of federal regulations and bans that have been upheld as constitutional. Claiming that they aren't really is wishful, not legal, thinking. > Interestingly, even the 1st Amendment did not originally prevent states from infringing on the freedom of speech This isn't correct. It's the due process clause that is operative, and the supreme Court has ruled that states can't remove rights, including those technically protected only from the federal gov, without due process.
  - comex 7y ago
    They said “originally”, i.e. before the 14th Amendment, which contains the due process clause. Edit: There’s also a “due process” clause in the Fifth Amendment, but it’s not the one used for incorporation (although it’s been used for so-called “reverse incorporation”).

jeffdavis 7y ago

"State and local governments had outlawed alcohol since the founding." That's because the scope of state power is very wide in the Constitution. The federal government is much more constrained (or was intended to be), and outlawing alcohol with an act of Congress would be a violation of the 10th Amendment. Interestingly, even the 1st Amendment did not originally prevent states from infringing on the freedom of speech. It begins "Congress shall make no law...". Later the 14th Amendment changed that through "incorporation", which is a process I don't fully understand.

joshuamorton 7y ago
> The federal government is much more constrained (or was intended to be), and outlawing alcohol with an act of Congress would be a violation of the 10th Amendment. Commerce clause, among others. There are all kinds of federal regulations and bans that have been upheld as constitutional. Claiming that they aren't really is wishful, not legal, thinking. > Interestingly, even the 1st Amendment did not originally prevent states from infringing on the freedom of speech This isn't correct. It's the due process clause that is operative, and the supreme Court has ruled that states can't remove rights, including those technically protected only from the federal gov, without due process.
- comex 7y ago
  They said “originally”, i.e. before the 14th Amendment, which contains the due process clause. Edit: There’s also a “due process” clause in the Fifth Amendment, but it’s not the one used for incorporation (although it’s been used for so-called “reverse incorporation”).