Robert Post has a new article on SSRN, Federalism, Positivism, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era. From the abstract:
This Article offers a detailed analysis of major Taft Court decisions involving prohibition, including Olmstead v. United States, Carroll v. United States, United States v. Lanza, Lambert v. Yellowley, and Tumey v. Ohio. Prohibition, and the Eighteenth Amendment by which it was constitutionally entrenched, was the result of a social movement that fused progressive beliefs in efficiency with conservative beliefs in individual responsibility and self-control. During the 1920s the Supreme Court was a strictly “bone-dry” institution... Close inspection reveals that the Taft Court's support for prohibition came from an unlikely alliance between two liberal Justices - Holmes and Brandeis - and three conservative Justices - Taft, Van Devanter, and Sanford. Three conservative Justices - McReynolds, Sutherland, and Butler - remained adamantly opposed to prohibition....
The brief constitutionalization of prohibition, in other words, forced Justices on both the right and the left to stop debating whether there should be an American administrative state, and required them instead to reconstruct their judicial philosophy on the assumption that the administrative state was an unalterable reality. It provoked a brief efflorescence of judicial perspectives that would not come into full flower until late in the twentieth century. Prohibition also forced a rethinking of the appropriate limits of national power, as well as fundamental developments in the meaning of Fourth Amendment limitations on law enforcement.
For the rest, go here.
