Forwarded to ATHG, an H-Net review of Richard Hamm's new book
 
>From <@uga.cc.uga.edu:[log in to unmask]> Thu Jun  8 08:38:00 1995
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>From: H-Pol Moderator Peter Knupfer <[log in to unmask]>
>Subject:      HPOL REVIEW: Hamm, _Shaping 18th Am._ (O'Fallon)
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>Date: Wed, 7 Jun 1995 15:00:12 PST
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>SHAPING THE EIGHTEENTH AMENDMENT: TEMPERANCE REFORM, LEGAL CULTURE, AND
>THE POLITY, 1880-1920. By Richard F. Hamm.(Chapel Hill: University of
>North Carolina Press, 1995, Pp. x, 341. $49.95 cloth, $18.95 paper.)
>
>        The Virginia Plan, presented to the constitutional convention by Edmund
>Randolph, provided for national legislative authority "in all cases to
>which the separate States are incompetent, or in which the harmony of
>the United States may be interrupted by the exercise of individual
>Legislation" as well as a national legislative veto of any state
>legislation "contravening the articles of Union." In the final event,
>the convention produced a document providing a more detailed statement
>of the powers of the national government.  That listing of powers,
>together with the tautologous tenth amendment, provides the foundation
>of federalism.
>
>        Federalism is both a fact of life of American political practice, and a
>constitutional theory.  As a practice, it marks the often convoluted
>sharing of governmental power by two fully-articulated governing
>entities.  As constitutional theory, it has been the mechanism for
>transforming many struggles for comparative advantage into apparent
>arguments of principle. Contending constructions of federalism were the
>ideological focus of battles over the national bank, protective tariffs,
>slavery in new states, and financing of internal improvements. The
>arcanum of the original package doctrine and the distinction between
>"commerce" and "manufacture", or more recently "integral operations in
>areas of traditional governmental functions" mark the courts' engagement
>with the task of distributing authority between governments. Not
>infrequently, the object of at least one of the parties to a federalism
>controversy has been to insure that authority and competency end up in
>different hands.
>
>        Richard Hamm's study of the temperance movement offers an enlightening
>view
>of the ways that federalism complicates American political
>practice.  His primary focus is the interaction of prohibition politics
>and federalism between 1880 and 1920. He describes a transformation of
>dry legal ideology, from a "Mosaic" conception of law as a moral code,
>to a more pragmatic and functional conception. The transformation was
>driven by the need to deal with the ways in which federalism undermined
>state-based prohibition.
>
>        The early success of the drys at the state and local level was
>undermined by legal protection of interstate commerce in alcoholic
>beverages, and by the fact that the federal government "licensed"
>alcohol dealers as part of its tax system, regardless of the legality of
>the trade in the local jurisdiction. Persistent activity by the drys
>eventually led to adoption by Congress of the Wilson Act in 1890, by
>which states were allowed to enforce their alcohol regulations
>notwithstanding what would otherwise be considered unconstitutional
>interference with a matter in the purview of the national government. In
>sustaining the Wilson Act, the Supreme Court took a major step towards
>transferring primary responsibility for maintaining the federal balance
>from the courts to Congress, though the full implication of the decision
>would not be realized for another fifty years.
>
>        On Hamm's account, the ultimate success of the drys in fashioning a
>regime of joint federal-state responsibility for prohibition, enacted
>through the 18th Amendment and the Volstead Act, was also their undoing.
>Drys had anticipated aggressive state enforcement of prohibition.  In
>the event, many states decided to let Uncle Sam do it.  The result was a
>failed enforcement system, which helped bring about prohibition's
>demise.
>
>        Shaping the 18th Amendment is a fine example of the wedding of legal
>and social history.  It exhibits the "relative autonomy" of the law in
>action, by demonstrating the reciprocal influence of the law on the
>movement for reform, and of the reform movement on the legal structure.
>It makes a significant contribution to our understanding of how we got
>from the state-centered polity of the 19th Century to the presumption of
>federal competence upon which our contemporary governing edifice was
>erected.
>
>                                        James M. O'Fallon
>                                        Frank Nash Professor of Law
>                                        University of Oregon
>
>James M. O'Fallon                   Office: 503/346-3870
>Frank Nash Professor of Law         FAX: 503/346-1564
>University of Oregon School of Law  Inet: [log in to unmask]
>Eugene, OR 97403
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David M. Fahey
History Department
Miami University
Oxford, OH 45056-1618, USA
tel. 513-529-5134
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