"It is not what a lawyer tells me I may do; but what humanity, reason, and justice tell me I ought to do." ~ Edmund Burke
Prohibition and the Birth of the National Security State
Column by Michael Kleen.
Exclusive to STR
In his recent column, “Prohibition Did Work, Sort Of,” Bob Wallace raised an interesting point. If not for the National Prohibition Act of 1919, he argued, Joseph Kennedy would never have profited (as much) from liquor importation and thus become a multi-millionaire. Therefore, he would not have bequeathed the political dynasty that gave us President John F. Kennedy and all the erosion of liberty that stemmed from his and subsequent administrations.
While Bob’s list of cascading consequences is accurate, I would say that he omitted one large consequence of Prohibition: the birth of the National Security State. If not for the nationwide law enforcement necessities of Prohibition, the Federal Bureau of Investigation would be nothing more than a few dozen agents in the Justice Department, and the Bureau of Alcohol, Tobacco, and Firearms would not exist.
For the first 100 years of United States history, the Federal government had very little internal policing power. Instead, it relied on private agencies like the Pinkerton Detective Agency, or left criminal investigation up to local authorities and individual states. In 1886, however, the Supreme Court ruled that states had no power to regulate interstate commerce. It was not until 1908 that the Attorney General organized the Bureau of Investigation and hired 12 agents for interstate policing.
After being linked to the Bureau of Prohibition, J. Edgar Hoover found a broader role for the agency in investigating and busting the organized crime that resulted from the Volstead Act. The Federal Bureau of Investigation officially became its own independent entity inside the Federal government in 1935. During the era of Prohibition, the nascent FBI was a pioneer in wiretapping, infiltration, and other surveillance techniques, which spawned an entirely new branch of case law. (The FBI has been the focus of several Supreme Court cases. Between 1939 and 1967, the Supreme Court held that evidence obtained by the FBI through wiretapping was inadmissible in court. The “Omnibus Crime Control and Safe Streets Act of 1967” allowed wiretapping with a warrant.)
Since Prohibition, the types of crime investigated by the FBI have gradually expanded, while the laws restraining the agency’s activity have been loosened, especially in the wake of the September 11th terrorist attacks. If not for Prohibition, however, the Bureau of Investigation might have remained a very small and obscure office within the Justice Department, and its notorious director, J. Edgar Hoover, would be long forgotten.
Another national security agency to come out of Prohibition was the Bureau of Alcohol, Tobacco, and Firearms. Few Americans had ever heard of the BATF before its agents stormed the Branch Davidian compound outside of Waco, Texas in 1993. In one bloody afternoon, however, the agency became a symbol of federal power run amok. Like the FBI, the BATF also cut its teeth enforcing the Volstead Act—the enabling legislation of the 18th Amendment. The BATF was originally known as the Prohibition Unit, which was created in 1920 to keep alcohol off America’s streets. In 1927, the Prohibition Unit became an independent entity within the Department of the Treasury and was renamed the Bureau of Prohibition.
After the repeal of the 18th Amendment in 1933 and the Federal government turned from prohibiting alcohol to taxing and regulating it, the Bureau of Prohibition struggled to justify its continued existence. It was transferred to the Internal Revenue Service, where it began to collect responsibilities, first by adding tobacco to its mandate, then firearms, and finally explosives. Each responsibility was attained after the Federal government expanded its regulatory powers through legislation like the Gun Control Act of 1968. By 2002, the old Bureau of Prohibition was known as the Bureau of Alcohol, Tobacco, Firearms, and Explosives.
It has been frequently observed that government tends to expand rather than contract, and that was certainly the case with the agencies that arose out of Prohibition. When Prohibition was repealed in 1933, these agencies did not disappear. They were entrenched in the Federal bureaucracy where they found a growing list of reasons to justify their existence (not to mention their budgets).
While we can never know for certain whether some other issue would have spurred the growth of these agencies (or others like them), it is clear that America’s experiment with alcohol prohibition provided the reasoning and the legal groundwork for robust Federal law enforcement. The climate of organized crime caused by Prohibition provided the proving ground for domestic surveillance programs like COINTELPRO and, eventually, the Patriot Act. If the 18th Amendment and the Volstead Act had never been passed, a significant step in the centralization of power in the U.S. would have been missed.