In a fascinating 1921 Atlantic piece, journalist Louis Graves reported on “weeks inquiring into the working of National Prohibition” in various states: “Now you find law-abiding citizens, who have drunk nothing alcoholic in years, making wines and beer in their homes. Many men who had quit drinking . . . seem to have taken a fresh start.” Writing barely a year after the 18th Amendment came into effect, Graves noted that alcohol prohibition had most effectively gained adherents from a “gradual building up of dry sentiment." But “Federal interference has dealt a blow to the cause of real prohibition” because “the Volstead Act has awakened a spirit of contrariness.” Graves presciently concluded: “if it comes to be recognized, as many believe it will be, that this Federal enterprise was a mistake, the lesson may be useful when it is proposed to prohibit by Constitutional amendment any other reprehensible habit.”
Similar themes find expression throughout Judge Jeffrey Sutton’s majestic Who Decides, a terrific new book which serves as an impressive follow-up to his 51 Imperfect Solutions and continues to promote state constitutions and institutions as protectors of our democratic traditions and individual freedoms. Judge Sutton is clearly eager to champion the political and social lessons from Prohibition’s failings that Graves suggested a century ago; indeed, Judge Sutton concludes his book with a parable highlighting why “some matters should not be nationalized” and urges a “renewed appreciation for the virtues of localism.”
And yet, while Judge Sutton develops a sophisticated account of American constitutionalism, Prohibition’s dynamic history goes entirely unmentioned. Because Who Decides is a rich opus running nearly 500 pages with astute insights on nearly every page, it is somewhat daft to lament what it does not discuss. But Judge Sutton’s illuminating analysis of the past and present of our ever-changing federalist system left me eager for his take on the local, state, and federal structures that first brought (and then brought down) the 18th Amendment, which is still the only constitutional amendment to restrict individual freedoms as well as the only one ever to be repealed.
More generally, because drug policy in the United States has long reflected a remarkable and unpredictable kind of federalism in action, talented scholars like Judge Sutton ought to more deeply engage the broad history of drug prohibitions and enforcement efforts. Of course, this history is full of failures ranging from the doomed “Noble Experiment” of Prohibition to the myriad (racialized) harms of the “war on drugs” to an opioid epidemic producing hundreds of thousands of overdose deaths. But critical lessons can be drawn from a careful study of failure’s structural underpinnings, especially since we here continue to see the worrisome tendency, as Judge Sutton puts it, “toward national solutions over local ones.” When a local nonprofit seeks to partner with Philadelphia to create a safe drug consumption site to reduce overdose deaths, the federal executive branch and federal courts embrace a debatable interpretation of federal law to stop the experiment. As states and localities from coast to coast serve as real-time laboratories testing an array of marijuana reforms, congressional leaders push for comprehensive federal reform rather than seeking to cultivate the diverse and developing state experiences and local wisdom.
Judge Sutton surely does not need advice from me about his next big project, but the myriad challenges presented by modern drug policy call for and need the engagement of our very best and brightest thinkers. And I sincerely hope all those working in the drug reform arena will embrace Judge Sutton’s rich account in Who Decides of the values of legal diversity, policy modesty, social exploration, and political evolution. These themes are important in every aspect of American life and law, and they strike me as especially essential in the arena of drug enforcement and policy, where Americans historically have been much more likely to get it wrong than get it right.
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