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 >Message-Id: <[log in to unmask]> >Date: Thu, 8 Jun 1995 08:28:29 -0500 >Reply-To: H-Net Political History discussion list ><[log in to unmask]> >Sender: H-Net Political History discussion list ><[log in to unmask]> >From: H-Pol Moderator Peter Knupfer <[log in to unmask]> >Subject: HPOL REVIEW: Hamm, _Shaping 18th Am._ (O'Fallon) >X-To: [log in to unmask] >To: Multiple recipients of list H-POL <[log in to unmask]> > >************* >From: [log in to unmask] >Date: Wed, 7 Jun 1995 15:00:12 PST > >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 >___________________________________________________________________ > Copyright (c) 1995 by H-Net, all rights reserved. This work > maybe copied in whole or in part, with proper attribution, > as long as the copying is not-for-profit "fair use" for > research, commentary, study, or teaching. For > other permission, please contact [log in to unmask] > David M. Fahey History Department Miami University Oxford, OH 45056-1618, USA tel. 513-529-5134 FAX 513-529-3841 e-mail: <[log in to unmask]>