In Re John Barleycorn:
The Role of NYCLA in the Repeal of Prohibition
By K. Jacob Ruppert, J.D.

From the two-part article appearing in the October and
November 2005 issues of
The New York County Lawyer,  a  publication
by the New York County Lawyers' Association (NYCLA) to its
membership of 10,000.

Mother's in the kitchen, washing out the jugs;
Sister's in the pantry, bottling the suds;
Father's in the cellar, mixing up the hops;
Johnny's on the porch, watching for the cops.

As NYCLA celebrates its 75th year in its landmark building, it’s befitting
to hear about NYCLA’s work on behalf of the profession as the time
neared for the big move to Vesey Street.  NYCLA and its members had
more that just building deadlines to meet; it had to maintain its momentum during WWI and the extremes of the Roaring
‘20s and the Great Depression.  One big national issue at play at the time, one through which the major historical events of
the early 20th Century could be told, was Prohibition.  

    Prohibition was a product of a century-long temperance movement on a collision
    course with the 20th Century’s burgeoning progressivism, anti-German sentiment and
    fervent wartime sacrifice.  By the early 1890s, the Temperance Movement ultimately
    galvanized into an identifiable lobbying body called the Anti-Saloon League.  Graduating
    from name-taking church ladies banging drums on saloon steps, the League launched a
    long term national campaign to demonize the German-American community and to win
    local, then state, then national elections with their candidates.  The plan worked so well
    that by 1913 there were nine states with prohibition statutes and Americans nationwide
    were identifying themselves politically as either “wet” or “dry.”  

    The Anti-Saloon League’s first success at the federal level was in 1913 with the Webb-
    Kenyon Act that penalized alcohol transportation through dry states.  Then came The
    Lever Food and Fuel Control Act banning the production of distilled spirits for the
    balance of the war.  One year later, The War Prohibition Act was passed forbidding the
manufacture and sale of all intoxicating beverages of more than 2.75 percent alcohol until demobilization from the war.  

America did not seem to mind a temporary dry spell for the sake of its doughboys overseas, a character trait the
Progressives extrapolated upon theorizing that the social and economic costs of legal alcohol outweighed one’s personal
right to drink.  Brewers thought otherwise.  In a 1917 public address, former Congressman Col. Jacob Ruppert Jr.,
President of the United States Brewers’ Association and his family’s upper east side brewery, stressed to the country that
a personal liberty was a stake and that the several states giving in to such an abuse of Federalism would “out-Bolshevik
Bolshevism!”  However, there was no wet political machine to match that of the League.  Ultimately the burden fell upon
the moneyed shoulders of the major brewers but, being German-American, were personae non gratae with legislators.  
Furthermore, introduction of the federal income tax in 1913 was a crushing blow as the new tax removed the
government's reliance on the substantial revenue from beer taxes, the brewers' most compelling defense. Women’s
suffrage and a worsening World War I also conspired against the brewers. Unsurprisingly, the Anti-Saloon League
exploited these opportunities with insidious precision.   Prohibition flew though Congress and was ratified on January 16,
1919.

With ratification came The Volstead Act, a.k.a. The National Prohibition Act, Prohibition’s strict enforcement act authored
by the Anti-Saloon League itself. This act,
inter alia, stealthily redefined “intoxicating liquors” as anything more than .5
percent alcohol, not the 2.75 percent as the country was accustomed during the “war beer” years and 7-plus percent or
more before that.

Ruppert, represented by good friend and honorary NYCLA member Elihu Root, took up the cause in
Jacob Ruppert vs.
Caffey , a last ditch effort to kill the amendment before enactment.  Ruppert claimed that the principal effect of the
Volstead Act was to extend wartime measures to peacetime, a power exclusive to the President, not Congress. He further
argued that proclaiming 2.25 percent alcohol as “intoxicating” was unscientific and contrary to contemporary notions of
hard and soft liquors.  Dismissed below, the case was appealed directly to the US Supreme Court and in a 5-4 decision,
Judge Brandeis, writing for the Court, said that “[T]he right of Congress to suppress the liquor traffic is not an implied
power but one specifically granted.  That power has not ended thought the cessation of hostilities.”   The New York
Times reported on January 6, 1920 that the
Ruppert decision “was so sweeping as to give little hope to the ‘wets.’”
thereby setting the stage for the National Prohibition Cases to follow (also argued by Root) that began after the 18th
Amendment and the Volstead Act went into effect 10 days later.  

Once “John Barleycorn”  was dead, the nation’s 1100 breweries began dropping like flies.  By Prohibition’s end, only
about 500 remained.  George Ehret, undoubtedly the largest regional brewer, was on vacation in Germany when the WWI
broke out and was prohibited by the INS from returning (his American citizenship notwithstanding) and fighting the
seizure of his brewery by “Alien Property Custodians.”  Ruppert survived better than most only because his family never
trusted the stock market and, most notably, they owned the New York Yankees and Yankee Stadium that always provided
a demand for their “near beer” (post-war Prohibition beer).  Most brewers eked out a living making candy, syrup, ice and
soda.  Meanwhile, deaths escalated exponentially from both mob violence and poisoning due to back-ally distilling and
heimgemacht.

Enter the NYCLA Special Committee on the Eighteenth Amendment.  
While construction was ongoing for the Home of Law on Vesey Street
in January of 1928, the New York County Lawyers’ Association, after
seeing the consecutive failure of each of the National Prohibition Cases,
passed a resolution “[b]y a thunderous vive voca vote” at a special open
meeting held on January 25, 1928 at the Astor Hotel (the frequent location
for NYCLA open and committee meetings) demanding in part:

    [T]hat the Board of Directors of this Association be requested to
    examine…the abuses that Prohibition and its attempted enforcement
    have created, as well as to devise and recommend suitable and
    adequate remedies and to report…to this Association its recom-
    mendations and the remedies by it devised.

The proposed resolution contained unequivocal opposition to the 18th
Amendment stating it is “filled with graft and debauchery” and  “has
deteriorated and demoralized” the law.  The resolution was read aloud,
accompanied “with frequent applause, and shouts of encouragement or
disagreement” by impassioned NYCLA member, John Vernou “Blackjack” Bouvier III, father of future First Lady
Jacqueline Kennedy Onassis.

Next week, Part II:  NYCLA Attacks the 18th Amendment with U.S. vs. Sprague.

___________________________________________________________________________________________
In Re John Barleycorn: The Role of NYCLA in the Repeal of Prohibition
By K. Jacob Ruppert, Esq.

Part II:  NYCLA Attacks the 18th Amendment with
U.S. vs. Sprague.

Re-christened the Special Committee on the Constitutionality of the 18th Amendment,
it now boasted a stellar list of NYCLA members: former NYS Supreme Court Justice
Daniel F. Cohalan; NYU Law School Dean Leslie J. Thompson; New York Port Authority
General Counsel and renowned author on commercial arbitration, Julius Henry Cohen;
Former NYS Assembly member Robert McC. Marsh; Constitutional Law litigator Selden
Bacon; William H. Hamilton; NYCLA co-founder and ethicist Charles Strauss, and Martin
Conboy, later infamous US Attorney who prosecuted Mayor Jimmy Walker and gangster
Dutch Schultz.  By March 1930, after two years deliberation, the Committee voted 6-1
that ratification method of the 18th Amendment was unconstitutional alleging it was illegally
ratified in defiance of the 10th Amendment and that their arguments should be put before
the United States Supreme Court.  The Committee’s findings were reduced to a pamphlet
authored by Selden Bacon entitled
The X Amendment, Its Supreme Importance and Its Effect
on the XVIII Amendment.
 The pamphlet became a popular handout and debate topic in the midtown and downtown legal
communities.  

Following through with its mission, Committee members Bacon, Cohalan, Thompkins and Cohen brought forth the test
case of
U.S. vs. Sprague defending a Coast Guard captain indicted for bootleg trafficking.  On December 16, 1930,  New
Jersey Federal District Judge William Clark shocked pundits when he agreed with the NYCLA
Sprague counsel holding
that the 18th Amendment was unconstitutional because it was illegally ratified.  The New York Times reported that

    [J]udge Clark’s decision results directly from a movement begun in 1927 by the New York County Lawyers’ Association to
    bring about a clear-cut test of the validity of the Eighteenth Amendment.

    In 1931, the NYCLA Special Committee, standing on the brink of
    Constitutional history, defended the Sprague decision before the
    Supreme Court.  In a devastating stroke of the pen, the Court
    upheld the validity of Prohibition holding that the Amendment
    “added nothing to the [Constitution] as originally ratified.”  The
    Special Committee returned to NYCLA, collapsing in the
    upholstered chairs of the 2nd floor Lounge (then furnished like a
    hotel lobby) brainstorming as to what to do next.  Meanwhile,
    breadlines from St. Peter’s Church and St. Paul’s Chapel were
    circling the building.  Fewer Americans held any hope for any
    repeal, including NYCLA Secretary Terence J. McManus who
    said at Christmas 1930 that “supporters of the ‘wet’ cause are
perforce relegated to December 1933 as the earliest moment … [for] a proposed repealing amendment…”  He was
referring to the upcoming elections of November 1932 as the political shift necessary for such a change.  He was
absolutely right.

Prohibition eclipsed all other issues at the 1932 Democratic National Convention as voters understood that America was in
economic crisis. Unemployment spoke louder than intemperance as few could deny that legalizing beer would create
thousands of new jobs and bring in desperately-needed tax revenues.  President Herbert Hoover stubbornly remained loyal
to Prohibition in his re-election campaign despite the damning self-authorized Wickersham Report proclaiming the
profound failure of Prohibition.  It quickly became clear that a vote for Roosevelt was a vote for repeal.  On November 8,
1932, in one of the greatest Democratic electoral victories in the history of American politics, Franklin Delano Roosevelt
was elected President and the Democrats held the Congress.  Three months later, after the Congressional seat shuffle, the
proposed 21st Amendment was passed and sent to the states for ratification.  Christmas came early that year, on
December 5, 1933, when Utah became the mandatory 36th state to ratify the 21st Amendment.  Happy days were here
again.

However, for beer brewers and drinkers, Christmas 1933 came even earlier.  The new Congress, covering all of its bases,
concurrently revised the Volstead Act’s definition of “intoxicating liquors” and agreed upon 3.2 percent alcohol as the new
maximum. It wasn't the hearty 6 or 7 percent of pre-Prohibition days, but it was a victory nonetheless and at 12:01 a.m.
on April 7, 1933, brewery whistles around the country heralded the return of beer. Many brewers from New York City,
including Ruppert’s, sent kegs upon kegs of brew to the White House to celebrate what was dubbed “New Beer’s Eve”
(with less than half arriving!).  For Ruppert, it was a delayed justice from his suit 14 years earlier and for brewers, it was
the first legal alcohol in 13 years and the only legal alcohol available for the next nine months.  After that, the once familiar
kick in hooch and the high foam on beer returned home for good.

The NYCLA Special Committee on the Constitutionality of the 18th Amendment surely saw the repeal of Prohibition as a
fait accompli upon the election of Roosevelt.  They led the Association to new highs during a troubling and changing time
in New York and America.  As today, NYCLA met human need with justice and raised a voice against legislative
encroachment on personal liberties.  It is this determination that
is so tightly woven into the mission and membership of the New
York County Lawyers’ Association and sustains its legacy
from one century to the next.
K. Jacob Ruppert is the great-great
grandson of brewer
Jacob Ruppert Sr.
(1842-1915).  He was NYCLA's Senior
Program Attorney from 2001 to 2004
and is now practicing law in New
Orleans.  He is his family's historian
and can be reached at
jacob@jacobruppert.com.