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 email@example.com.