The Time a New York Governor Disobeyed the Federal Government
When Al Smith had the chance not to enforce Prohibition, he took it.
New York Gov. Al Smith speaks in New York on Nov. 2, 1928. | AP Photo
By TERRY GOLWAY 04/25/2020
Terry Golway is a senior editor at POLITICO. His most-recent book is “Frank and Al,” a dual biography of Franklin Roosevelt and Al Smith.
The coronavirus is pitting states against the federal government on issues ranging from testing to stay-at-home orders to how best to restart the economy. After President Donald Trump claimed to have “total authority” over how and when states should ease their restrictions, New York Gov. Andrew Cuomo made it clear not only that the president had no such power, but that he would fight any premature orders to open up the Empire State.
He isn’t the first New York governor to thumb his nose at Washington. In fact, if Cuomo were looking for a precedent for such defiance, he need only glance at one of the several framed pictures of Al Smith that decorate his office.
Nearly a century ago, in 1923, Smith—then in the second of his four terms—shocked the country and delighted his supporters when he signed a bill that effectively ended his state’s enforcement of the 18th Amendment, which had made Prohibition the law of the land.
Of course, selective enforcement of the Constitution was not exactly new in the 1920s. The 11 states in the old Confederacy had essentially voided the 14th and 15th amendments through Jim Crow laws and state-sanctioned terrorism by white supremacists. The 14th Amendment’s right to equal protection under the law and the 15th Amendment’s abolition of whites-only voting laws were little more than cruel jokes in the South and in other states as well.
But Smith’s defiance of the 18th Amendment was of another order, in part because there was greater national support for Prohibition than there was for equal rights for African Americans, and in part because of who he was—a child of the city, a Roman Catholic, and the grandson of immigrants at a time when the country was about to close the country to most immigrants. A newspaper in upstate Auburn said of Smith’s flouting of federal law, “The opening gun at Fort Sumter did not echo a more outright defiance.”
Smith’s decision to flout a government order he despised transformed him from a regional curiosity to a national figure just as he was beginning to prepare for the 1924 presidential campaign. He would seek the White House three times—in 1924, 1928 and 1932—and while he never won the prize, he became a beloved symbol of the new America that was taking shape in the nation’s cities as the children of Ellis Island came of age, politically and culturally, in the 1920s. Breaking the rules worked for Smith.
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The 18th Amendment, which outlawed the manufacture, transportation and sale—but not consumption—of “intoxicating spirits,” was ratified in January 1919 and took effect the following January. Congress then passed the federal Volstead Act, which gave Washington the power to enforce the amendment and set penalties for those caught in the act, and it defined “intoxicating spirits” as any beverage containing more than 0.5 percent alcohol by volume. It became law over Woodrow Wilson’s veto in October 1919.
After Republicans took control of Albany in the Warren Harding landslide of 1920, they passed several bills that mimicked most aspects of the federal Volstead Act, empowering police in New York to enforce Prohibition. Many considered the statute unnecessary, but the dry forces in New York were intent on making a statement, and indeed included even tougher language than the federal law. For example, the New York enforcement bills, known collectively at the Mullan-Gage Act, declared that possession of a hip flask containing booze was the “equivalent of carrying an unlicensed handgun.”
The legislation pleased the powerful Anti-Saloon League and rural portions of upstate New York, where evangelical voters and the Ku Klux Klan looked askance (to put it mildly) at the growing power of Catholics and Jews in the state’s urban areas, particularly New York City. The dry forces associated drinking with foreign cultures. Prohibition, they argued, would help Americanize these alien peoples.
Suffice it to say, this didn’t sit well with people like Al Smith, who embraced city life and all its racial, ethnic and religious complexities. He recaptured the governor’s office in 1922 after losing reelection two years earlier, and his fellow Democrats—many of whom were Catholics and Jews from the cities—won control of the Legislature, thanks in part to urban opposition to Prohibition.
Lawmakers did not waste time. A bill to repeal Mullan-Gage was introduced on January 3, 1923, as the new session was beginning and on the same day that the newly elected governor of Connecticut, Charles Templeton, declared that Prohibition was “one of the greatest sociological experiments ever undertaken by any nation.”
The repeal bill passed the Legislature in early May—the Senate’s back-slapping majority leader, Jimmy Walker, helped win over some crucial but wavering votes in his chamber—and was dispatched to Smith’s desk. And that’s when the eyes of the nation turned to the governor’s second-floor office in New York’s state Capitol.
Smith despised Prohibition—he continued to serve cocktails in his office in the state Capitol—and resented the self-righteousness of its advocates. Passage of the Mullan-Gage repeal would have sent a signal far and wide that New York would no longer enforce laws it detested.
But that’s precisely what worried Smith. Smith was a consensus-seeker who, as governor, found ways to work with Republican majorities in the Legislature. But there was no room for splitting the difference now. A Tennessee newspaper compared New York’s attitude toward Prohibition to South Carolina’s assertion in the early 1830s that it could void federal laws—more specifically, tariffs—it didn’t like. The bitter nullification crisis was a precursor to South Carolina’ secession in 1860, and most Americans knew how that ended. While nobody was predicting that Smith’s decision would lead to civil war, some feared repeal of Mullan-Gage would lead to more widespread defiance of the Volstead Act, leading to the kinds of bitter divisions Smith preferred to bridge rather than exacerbate.
There was another complication as well. Smith intended to run for president in 1924, and he would need support from the Democratic Party’s dry-as-dust factions in the South and West to win the nomination. Then again, his base in the cities of the Northeast and the Midwest expected him to sign the repeal. If he failed to stand up for those who saw him as their champion, they’d be unlikely to stand up for him at the convention.
There was little question that he wanted to sign, but he’d have to think it over.
During a month of deliberation, the national press focused intently on the looming rebellion in Albany, and some of the country’s leading political figures warned Smith of the stakes in play.
“This disposition of the Mullan-Gage repeal bill will show the mettle of the man,” Harvard law professor Felix Frankfurter wrote to Smith’s closest political adviser, Belle Moskowitz. “If he vetoes the repeal, he will be damned for a comparatively brief time … if he signs it, he would be damned for good.”
Franklin Roosevelt, who would one day succeed Smith as governor and would, as president, appoint Frankfurter to the Supreme Court, was more sympathetic to Smith’s dilemma. He wrote: “Frankly, it is going to hurt you nationally a whole lot to sign the Repealer Bill. … On the other hand I well realize that the vote in all the cities of this state will shriek to heaven if you were to veto the Bill.”
Ultimately, Smith took the advice of his political mentor, Tammany Hall boss Charles Francis Murphy, a saloonkeeper by trade—before, that is, his trade was declared illegal. “Al,” Murphy said at a summit meeting with the governor on Long Island, “you must sign this bill.” Murphy was a taciturn sort—he saw no reason to explain his reasoning because it was obvious. The people who put Smith back in the governor’s office knew they were voting for the wettest of the wet, and they expected him to act accordingly, the presidency be damned.
Smith went through the motions of holding a public hearing in the state Assembly chamber in Albany. The dry forces packed the house, some of them bringing along sandwiches and beverages—soft, of course—as they settled in for the political equivalent of a revival meeting. One of the many anti-liquor speakers said the governor had to choose between the “Star-Spangled Banner” and “The Sidewalks of New York”—a song celebrating New York City that was long associated with Smith.
Toward the end, though, a prominent Republican, Thomas Douglas Robinson, a nephew of Theodore Roosevelt, delivered an impassioned speech denouncing the Prohibitionists as bigots who claimed to have “a 100 percent mortgage on law and order and Americanism.” He had voted in favor of repeal, Robinson said, and did so as an American. Robinson’s rebuke was noteworthy given his lineage, for he was saying that the white Anglo-Saxon Protestants who dominated the dry movement had no monopoly on the country’s values and culture.
Less than 24 hours later, on June 1, 1923, Al Smith signed the repeal bill. It contained the caveat that New York police would cooperate with federal agents if requested to do so, but officers would no longer enforce Prohibition on their own. In cities across the state, drinkers tripped the light fantastic long into the night. In the heartland, however, New York’s defiance inspired fear and resentment—law, order and the very foundations of what made America great were breaking down in the nation’s immigrant-filled cities. Smith, thundered the Kansas City Star, had “done an anarchistic thing.”
William Jennings Bryan, the spiritual leader of the Democratic Party’s influential evangelical faction, took to the pages of the New York Times to pronounce his judgment of Smith and his ilk in the cities he had made a career denouncing. Smith, Bryan said, should “expect resistance from the defenders of the home, the school and the Church.”
Smith had been uncharacteristically silent in the face of the onslaught from beyond the Hudson River, but he couldn’t resist taking Bryan’s bait. He issued a statement condemning the “narrow and bigoted” dry agenda, and then took note of Bryan’s three failed attempts at the presidency. Whenever the so-called Great Commoner presented himself to voters, Smith wrote, “a wise and discriminating electorate usually takes care to see that Mr. Bryan stays at home.”
Frankfurter’s bleak assessment of Smith’s future proved incorrect—for the most part anyway. While Smith did not become the Democratic Party’s presidential nominee in 1924, he was reelected as governor in a landslide over Theodore Roosevelt Jr. that year. And four years later, he won the prize that eluded him in 1924, becoming the first Catholic to win a major party’s presidential nomination. Herbert Hoover trounced him in the general election, but it was Smith’s religion more than his position on Mullan-Gage that became a defining issue of the campaign. Then again, urban Catholicism and defiance of the 18th Amendment were considered variations on the same un-American theme, at least in some portions of the country.
Smith is remembered today not only through the annual charity dinner in his name, but as one of the great governors of the 20th century, never mind that he was assailed as a virtual secessionist in 1923. The current governor, more than most of his predecessors, has kept Smith’s memory alive—and not just through a virtual shrine in his inner office.
During his decade in Albany, Andrew Cuomo has overhauled New York’s archaic restrictions on alcohol sales and production, leading to a tripling in the number of wineries, cideries, breweries and distilleries in the state.
And when he issued his stay-at-home orders last month, Cuomo not only declared liquor stores an essential business, but he allowed bars to serve drinks to go.
Al Smith would have signed that one, too.
