Alcohol Prohibition functions in The Bob Zadek Show as the settled case: the episode of American history that guests and host alike treat as proof that prohibiting an intoxicant produces more harm than the substance itself. The show returns to it in four episodes spanning 2012 to 2017, always as analogy rather than as subject, and the analogy is doing argumentative work — it supplies the empirical premise for the claim that drug prohibition is failing and the constitutional premise for the claim that states may opt out.
The Ken Burns documentary and the question “what were they thinking”
Bob Zadek opened the theme in a 2012 interview with Gary Johnson by citing Ken Burns’ five-part documentary on prohibition, then available on DVD, and describing the retrospective reaction it produces: watching it, people scratch their heads and ask what the government was thinking to try to prohibit alcohol. Bob’s own answer was that prohibition created the cash flow that gave organized crime in this country its impetus, and invited corruption. He extended the thought forward — someday Americans will look back on the war on drugs and ask the Americans of the 1980s, 1970s and 1990s what they were thinking — and added that the policy harms third-world economies that become feeders of the illicit drug market The Triumph of Principle Over Politics (2012).
Johnson took up the documentary directly, saying he could not help wondering, while watching it, whether everyone sees the correlation between what is happening now and what happened then. He cited a Gallup poll from three months earlier showing that 50% of Americans now supported legalizing marijuana, and attributed the shift to more people talking about the issue and understanding that it is a health issue first, middle and last, and anything but a criminal justice issue. His formulation of the stakes was familial rather than constitutional: a bad choice should not end you up in jail, kids do not belong in jail, and the issue belongs with the family, not the government and the criminal justice system The Triumph of Principle Over Politics (2012).
Judge Gray: New York’s statute and the beginning of the end
Judge Jim Gray, in a 2013 episode, supplied the show’s most concrete historical claim about how alcohol prohibition actually ended. He told Bob that the beginning of the end was the people of the state of New York passing a statute saying alcohol is no longer illegal in the state of New York — illegal under federal law, but not under state law. Gray grounded this in a claim of state right: the states have that power under the Constitution, even under the supremacy clause and even under Supreme Court dictates. He used it as the model for California, where he said a measure to treat marijuana like wine would be on the ballot in 2016, and for the earlier attempt to qualify “Regulate Marijuana Like Wine” for 2012, which failed for lack of funding but whose ballot language, returned by Attorney General Harris’s office, would have stated that California alone would save tens of millions of dollars a year in enforcement costs and generate hundreds of millions in revenue We Are All Libertarians (2013).
Gray’s framing of the choice was stark: marijuana is the largest cash crop in California, ahead of grapes, so the question is not whether it will be here but whether it will be here with Mexican drug cartels and juvenile street gangs, or regulated, controlled and taxed. He credited Libertarians with spearheading the movement, and predicted that drug prohibition is on its way out and that people will look back, just as they do with alcohol prohibition, aghast that such a failed system was perpetuated so long. In the same passage he linked the drug issue to marriage equality, calling the latter the next logical constitutional step after racial equality and gender equality We Are All Libertarians (2013).
Gray also credited Johnson with having stood up in 1999, as a Republican governor in a Democratic state, and said at a time when no constituency demanded it that the war on drugs is not working. Bob’s framing of the same development was that federalism is producing the de facto repeal of federal criminalization of drug use, and that the winning would probably be complete no later than the 2016 election cycle We Are All Libertarians (2013).
Boaz: the moral point and the social costs
David Boaz, in 2015, gave the analogy its cleanest statement. He said we tried alcohol prohibition, it turned out that didn’t work very well, and that while there are a lot of problems caused by alcohol use, there are even more problems caused by alcohol prohibition — which is what ought to be recognized about drug prohibition. From this he drew a moral conclusion: it is wrong to put people in jail because of what they smoke, and it simply should not be the role of government to tell adults what they can smoke or even what they can snort or shoot up David Boaz on The Libertarian Mind (2015).
Boaz then enumerated the social effects he attributed to prohibition rather than to drugs: a whole lot of young black men placed in the criminal justice system, many people in jail at great cost, prisoners coming out more associated with criminals than before, corruption of law enforcement officers, and destroyed inner-city communities with high crime rates arising from turf warfare between drug gangs. His illustration was economic: a Chevrolet dealer who wants a Ford dealer’s corner lot can offer more money or buy it out, and failing that must build elsewhere, but a drug dealer whose corner is encroached upon cannot go to the police or the courts, so the only thing he can do is shoot. Boaz put the burden of responsibility on supporters of the drug war: if you support it because you saw your nephew messed up with drugs, you have to take responsibility for the corruption of law enforcement and the high level of crime and even murder in many parts of our cities David Boaz on The Libertarian Mind (2015).
Bob’s contribution in that episode was to sharpen the underlying question: whether government should be in the business of criminalizing behavior that may or may not be self-destructive but does not of necessity harm others. He stressed that government is the only societal organization permitted to use force and coercion, that Walmart can never point a gun at you and coerce you to shop there, and that the core libertarian issue is that people are allowed to make decisions, even wrong decisions, and cannot be coerced into making right decisions David Boaz on The Libertarian Mind (2015).
Miron: the Eighteenth Amendment and the Controlled Substances Act
Jeffrey Miron, in 2017, brought the constitutional dimension to the foreground. He noted that eight states had by then legalized recreational use and about 15 more had legalized for medicinal purposes, and that the federal interest in enforcing such laws, especially for marijuana, had waned at the state level. He described as interesting and frustrating for libertarians the position of an official who wants to reinvigorate federal enforcement: libertarians might have some sympathy for the idea that elected and appointed officials should not arbitrarily decide to enforce some laws and not others, since that could lead to laws enforced in racist ways, or to foster crony capitalism, or to promote some political agenda. But he found the position overall not at all convincing, noting that prosecutors everywhere have finite resources and must choose priorities, and that the first-order fix is not to reform one official’s attitude but to convince the electorate to change the federal law and get it off the books Miron vs. Sessions on the Drug War (2017).
Miron’s historical contrast was precise. In the case of alcohol prohibition, Congress and the country adopted an amendment — the 18th Amendment — that gave Congress the authority to outlaw intoxicating liquors. He noted as a slight aside that some libertarian friends would argue that even a constitutional amendment of that kind was inconsistent with other parts of the Constitution and therefore highly problematic, but granted that at least Congress then recognized that the Constitution gives the federal government only a small number of explicitly enumerated powers — making war, coining money, raising taxes in certain ways — and not arbitrary power to do all the things it has done for the last 100 years, in particular not the authority to outlaw a particular substance. With the explicit amendment, he said, it perhaps did have the authority to ban alcohol. By contrast, there has never been any constitutional amendment giving Congress authority to outlaw drugs, and so many constitutional scholars, and certainly libertarians, would argue that the Controlled Substances Act is itself unconstitutional and should be stricken down Miron vs. Sessions on the Drug War (2017).
Setting that aside, Miron explained that under existing interpretations the federal government can enforce its prohibition in the various states, and a federal officer who identifies someone possessing or trafficking an outlawed drug has authority under the Controlled Substances Act and its sequelae to enforce federal law on citizens of any state. But that in no way says the states must criminalize it themselves or cooperate in enforcement; they are absolutely entitled to repeal their own laws outlawing drugs. He noted that during alcohol prohibition a whole bunch of states never outlawed alcohol, including many of the more populous states, and enforcement came only from the federal government. In recognition of its limited ability to force state enforcement, he said, the federal government returns proceeds from seized assets to cooperating state and local agencies as an enticement Miron vs. Sessions on the Drug War (2017).
Bob named that practice equitable sharing and characterized it as policing for profit, an insidious process resting on the fact that the federal government lacks a federal police force in theory and lacks the resources to enforce its own laws, so it must dragoon or incentivize state and local governments by something close to bribery, hiring them as subcontractors Miron vs. Sessions on the Drug War (2017).
Across episodes: the analogy hardens into a constitutional argument
The treatment changes across the run. In 2012 the reference is cultural and evidentiary — a documentary, a Gallup number, a rhetorical question about what the government was thinking — and the argument is that prohibition does not work and produces crime and corruption. By 2013 Gray has converted the analogy into a mechanism, naming New York’s statute as the beginning of the end and asserting a state’s right to legalize notwithstanding the supremacy clause. By 2015 Boaz states the moral case as primary and the consequentialist case as secondary. By 2017 Miron shifts the ground entirely to constitutional text, contrasting the 18th Amendment’s explicit grant of authority over intoxicating liquors with the absence of any amendment authorizing federal drug prohibition, and questioning the Controlled Substances Act itself. The through-line is the same analogy; what changes is that it migrates from a lesson about outcomes to a lesson about enumerated powers.
What the sources do not cover
The excerpts do not describe the repeal of the 18th Amendment, the passage of the 21st, or any case in which a court ruled on the constitutionality of the Controlled Substances Act. They do not state the outcome of the California ballot effort Gray describes, or whether the 2016 measure he anticipated reached the ballot. No excerpt gives the text or holding of any decision, and none states the date of New York’s statute or the terms of the Gallup poll beyond the figure Johnson cites.