November 29, 1926 – The Supreme Court Decides Lambert v. Yellowley et al.

In Lambert v. Yellowley et. al., 272 U.S. 581 (1926), the U.S. Supreme Court, by a five to four decision delivered by Justice Louis D. Brandeis, held that the practice of medicine is everywhere subordinate to the exercise of police power by the government. In this case, the medical practice that occupied the attention of the Court was the dispensing of alcohol for therapeutic purposes subsequent to the passage of the Eighteenth Amendment, which had ushered in the era of Prohibition.

After Prohibition took effect on January 17, 1920, it soon became clear that not all Americans felt obliged to stop drinking. Alternative sources of procuring liquor mushroomed, increasing the popularity of physicians, who could legally prescribe “medicinal” spirits or beer for their patients. By June of 1920, more than 15,000 physicians and over 57,000 pharmacists had obtained licenses to dispense liquor.

Prescription forms for medicinal alcohol, via the Rose Melnick Medical Museum

During the 1920 presidential campaign, Republican nominee Warren G. Harding pledged to enforce the Volstead Act (the informal name of the enabling legislation for the Eighteenth Amendment), which prohibited the sale of alcohol “as a fundamental principle of the American conscience,” implying that the Wilson administration had neglected its duty. Once inaugurated, President Harding tried to fulfill his campaign promise. On November 23, 1921, he signed the Willis-Campbell Act, popularly known as the “anti-beer bill,” prohibiting doctors from prescribing any malt liquor for medicinal purposes and severely limiting the prescription of wine or beer for such purposes. (In early 1923, having become convinced of the importance of personal example, Harding gave up his own clandestine drinking.)

President Warren G. Harding

The medical profession grew alarmed at what it considered to be interference with the practice of medicine, and court challenges proliferated. In 1923, the Dean Emeritus of the College of Physicians and Surgeons of Columbia University, Dr. Samuel W. Lambert, obtained a District Court injunction forbidding the local prohibition director from interfering with his prescription of wines and spirits. He claimed that the Willis-Campbell Act had “no real or substantial relation to the appropriate enforcement of the Eighteenth Amendment.” Thus, he argued, Congress had exceeded the powers delegated to it by the amendment, and thereby violated his fundamental rights as a physician to treat his patients according to his judgment and training.

Justice Brandeis cited evidence that practicing physicians differed on the value of alcohol for medicinal purposes, and that in any event, at least some of the liquor was being diverted to beverage uses. He disagreed that the Act had no relation to the enforcement of the Eighteenth Amendment, observing:

The opportunity to manufacture, sell and prescribe intoxicating malt liquors for `medicinal purposes,’ opens many doors to clandestine traffic in them as beverages under the guise of medicines; facilitates many frauds, subterfuges and artifices; aids evasion; and, thereby and to that extent, hampers and obstructs the enforcement of the Eighteenth Amendment.”

Justice Louis D. Brandeis

He also spoke about the problems of “craving,” “hardihood,” “fraud,” and “cupidity” – all tending to circumvent the amendment.

Finally, and most importantly, Brandeis stated,

…there is no right to practice medicine which is not subordinate to the police power of the States, and also to the power of Congress to make laws necessary and proper for carrying into execution the Eighteenth Amendment. When the United States exerts any of the powers conferred upon it by the Constitution, no valid objection can be based upon the fact that such exercise may be attended by some or all of the incidents which attend the exercise by a State of its police power. The Eighteenth Amendment confers upon the Federal Government the power to prohibit the sale of intoxicating liquor for beverage purposes. Under it, as under the “necessary and proper” clause of Article I, § 8 of the Constitution, Congress has power to enforce prohibition “by appropriate legislation.” (272 U.S. 596-7, citations omitted).

Brandeis was joined in his opinion by Chief Justice William H. Taft, and Justices Oliver W. Holmes, Willis Van Devanter, and Edward T. Sanford.

Justices George Sutherland, James C. McReynolds, Pierce Butler, and Harlan F. Stone dissented. They argued that the Eighteenth Amendment authorizing the federal government to regulate “the manufacture, sale, or transportation of intoxicating liquors” was expressly limited to those used “for beverage purposes.” To the extent such liquors were used for other purposes (e.g. medicinal purposes), their regulation was beyond authority granted by the amendment. In their opinion, only the states could regulate the sale of liquor for medicinal purposes.

This case is interesting for several reasons. First, it combined a legal positivism approach to the law with a conservative belief in social control. [Legal positivism, in brief, views legal rules as valid not because they are rooted in moral or natural law, but because they are enacted by legitimate authority (in this case, Congress) and are accepted by the society as such.]

Robert Post contends that the “odd and singular alliance of conservatives and liberals” of this fusion “disappeared from judicial conservatism with the repeal of the Eighteenth Amendment, and it did not reappear until the 1970s and the philosophy of Justice Rehnquist, when judicial conservatism finally came to terms with the entrenchment of the American administrative state.” [Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1 (2006)].

Second, this case offers another example of the Court citing a so-called “Brandeis brief.” The Brandeis Brief pioneered the practice of legal briefs relying at least as much on a compilation of scientific information and findings of social science as on legal precedents. It was named after then-litigator Louis Brandeis, who presented it in his argument for the 1908 U.S. Supreme Court case Muller v. Oregon.]

And third, the precedent it set continues to be important today with the medical marijuana issue winding its way through the court system.

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