We Have Been Here Before

“The most peaceful way to carry out this vital public safety mission is for Republicans and Democrats to do it together, and for state and local law enforcement to work together with federal law enforcement.” White House press secretary Karoline Leavitt.

Congress passes a law. States where the law is unpopular refuse to enforce it. The federal government hires hundreds of armed federal agents, sets then to enforcing the law. Chaos follows, the law is widely violated with the approval of many, including a state governor and prominent media figures.

The time is the early Twentieth Century. The law is the Volstead Act, setting up federal enforcement of prohibition. Some states pass parallel state laws, some decline to do so. Albert Ritchie, governor of Maryland, publicly opposes prohibition, supported by the Sun Papers and their most prominent journalist, H.L.Mencken. Ritchie is reelected in a landslide, becoming the first governor of the state to serve two terms. In the democratic convention that ended up nominating FDR for president Ritchie is his chief rival, offered but not accepting the VP position on Roosevelt’ ticket.

It is not a perfect parallel to the present situation. Prohibition was the result of a constitutional amendment, was ended by the repeal of that amendment. The present conflict was started by the election of a president with majorities in both houses of Congress who was determined to enforce existing law more energetically than in the past. It will be ended, if it is ended, either by the election of a president with different views, probably from the other party, by congressional action, or by the current administration concluding that the political costs of continuing its enforcement efforts are more than it is willing to pay.

One other difference is that the division between state and federal enforcement was explicit in section 2 of the 18^th Amendment: “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.” It is implicit this time in the division between state and local authority in our system; ICE, like the FBI, is under the authority of the president, police in Minneapolis under that of the governor of the state or the mayor of the city — who are appointed not by the federal government but by their voters. Maryland could choose not to enforce prohibition by simply not passing a state equivalent to the Volstead act. Minnesota or California do it by explicit statements of the limits of their willingness to cooperate with federal enforcement or instructions to state law enforcement implementing those limits.

The other, perhaps larger, difference is in the setting of the conflict, changes in technology and politics. We are living in a transparent society,¹ they were not. If prohibition agents made lethal mistakes, killed people they had no right to kill,² Mencken could tear into them in print but supporters of prohibition were free to believe denials by the federal authorities.

When it happened a few days ago in Minneapolis the event was extensively recorded, the videos widely shared online. Trump supporters could choose between believing Kristi Noem or believing their eyes. It took only a few days for the federal authorities to recognize the difficulty of the situation and abandon claims that were demonstrably false. I was reminded of another and much worse case, back when I was a graduate student in Chicago before cell phones existed, pretty clearly first degree murder by police officers, none of whom were ever charged, although the city and county did end up paying damages to settle a civil suit by the survivors. The ability of bystanders to record interactions with law enforcement and share the recordings has made it more difficult for authorities to cover up misdeeds by their employees, especially spontaneous misdeeds; if ICE had been deliberately assassinating Alex Preti they could have done it somewhere with fewer witnesses. The fact that it was not deliberate is what makes this homicide manslaughter rather than murder.

A second difference between this conflict and that one is a political change, a large scale shift from state to federal. In the 1920’s, federal expenditure was usually less than a third of the combined federal, state and local total. Currently, federal expenditure is about three quarters of the total. That change means that policies in one state have more effect on citizens in other states now than then. In my previous post, arguing that the federal authorities should refrain from efforts to enforce immigration law in states that don’t want it enforced, I wrote:

If illegal immigrants are mostly criminals and welfare scammers, as one side’s rhetoric implies, the blue states will bear most, although not all, of the cost.

I was assuming that welfare costs were mostly born by the state. A commenter on the post pointed out that the assumption was mistaken, that currently a substantial majority of state welfare expenditure is funded by federal grants. That makes the federalism solution I was arguing for less convincing to supporters of more energetic enforcement.

From my standpoint, also from the traditional conservative standpoint, the fact that large scale federal funding of state and local expenditures makes federalism less workable is an argument against the funding. For those who support the funding it is an argument against federalism, in this and other contexts.

One further difference between the two conflicts is the motivation of the opponents of enforcement. During prohibition, many voters, probably a majority, continued to drink, taking advantage of successful violations of federal and, in some states, state, law. Prohibition raised the cost of alcoholic drinks and lowered their quality, imposing a direct and visible cost on voters, and that cost was probably a more important factor in repeal than the costs of enforcement activities, conflicts between prohibition agents and bootleggers or speakeasy proprietors.

This time the direct cost is born by illegal immigrants, by legal voters only in the costs inflicted on them by enforcement activity and in their sympathy for the direct victims. There is an indirect cost to ordinary taxpayers in the reduced availability of immigrant labor to pick crops and build houses but although that may be part of the reason that some states are willing to tolerate illegal immigrants it is not, I think, a major source of the current opposition.

That is a difference, but less of a difference than it might appear. The split this time is largely an ideological difference between red tribe and blue tribe. The split, both when prohibition was passed and when it was repealed, was largely ideological, in part religious, between those who viewed drinking as both a moral and social evil and those who did not.

P.S. At a considerable tangent …

If things had gone differently at the 1932 Democratic convention Ritchie would have been nominated, run on the same conservative platform FDR ran on, been elected and, unlike FDR, followed the policies he had been elected on. His response to the early stages of the Depression would have been the same as Harding’s response in 1921 to similar economic figures, a reduction in federal expenditure instead of an increase. There would have been no New Deal and also, judging by the previous episode, no Great Depression; the depression that started in 1920 was over by 1923.

An interesting alternate history.³

Assuming that I have got the economics right — the two episodes are more similar than most realize but of course not identical — the question is whether the shift in the path of political history would have been temporary or permanent. Much of the leftward shift in both academic and popular opinion was motivated by the Great Depression, widely seen as evidence of the failure of capitalism, but not all. Hitler was appointed Chancellor a few weeks after FDR was inaugurated. By 1933 Mussolini had been in power for eleven years. In the UK, the Labour Party had adopted a socialist constitution in 1918, replaced the Liberal Party as the chief opposition to the Conservative Party by 1922, formed minority governments in 1924 and 1929. Ritchie replacing Roosevelt would have changed none of that.

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1. The title of a book by David Brin exploring and extrapolating the consequences of modern surveillance technology, the most important form of which, so far, has been cell phones used as video cameras.

2. I have no specific examples in mind but my guess is that there were some. Readers more familiar than I am with the historical details are invited to provide them.

3. Consequences of Ritchie’s election have been touched on in alternatehistory.com but the examples I have seen accept the orthodox account of Roosevelt and the Great Depression, ignore the evidence from the 1920-23 experience, and so assume that Ritchie’s approach would have been a failure. Assuming it would have worked is more interesting.