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 Amendments right to equal protection under the law and the 15th Amendments abolition of whites-only voting laws were little more than cruel jokes in the South and in other states as well.

But Smiths 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 wasa 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 Smiths flouting of federal law, The opening gun at Fort Sumter did not echo a more outright defiance.

Smiths 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 timesin 1924, 1928 and 1932and while he never won the prize, he became a beloved symbol of the new America that was taking shape in the nations 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 salebut not consumptionof 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 Wilsons 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 states 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 didnt sit well with people like Al Smith, who embraced city life and all its racial, ethnic and religious complexities. He recaptured the governors office in 1922 after losing reelection two years earlier, and his fellow Democratsmany of whom were Catholics and Jews from the citieswon 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 Maythe Senates back-slapping majority leader, Jimmy Walker, helped win over some crucial but wavering votes in his chamberand was dispatched to Smiths desk. And thats when the eyes of the nation turned to the governors second-floor office in New Yorks state Capitol.

Smith despised Prohibitionhe continued to serve cocktails in his office in the state Capitoland 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 thats 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 Yorks attitude toward Prohibition to South Carolinas assertion in the early 1830s that it could void federal lawsmore specifically, tariffsit didnt 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 Smiths 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 Partys 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, theyd be unlikely to stand up for him at the convention.

There was little question that he wanted to sign, but hed 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 countrys 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 Smiths 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 Smiths 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 tradebefore, 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 sorthe saw no reason to explain his reasoning because it was obvious. The people who put Smith back in the governors 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 beveragessoft, of courseas 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 Yorka 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. Robinsons 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 countrys 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 Yorks defiance inspired fear and resentmentlaw, order and the very foundations of what made America great were breaking down in the nations immigrant-filled cities. Smith, thundered the Kansas City Star, had done an anarchistic thing.

William Jennings Bryan, the spiritual leader of the Democratic Partys 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 couldnt resist taking Bryans bait. He issued a statement condemning the narrow and bigoted dry agenda, and then took note of Bryans 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.

Frankfurters bleak assessment of Smiths future proved incorrectfor the most part anyway. While Smith did not become the Democratic Partys 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 partys presidential nomination. Herbert Hoover trounced him in the general election, but it was Smiths 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 Smiths memory aliveand not just through a virtual shrine in his inner office.

During his decade in Albany, Andrew Cuomo has overhauled New Yorks 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.

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The Time a New York Governor Disobeyed the Federal Government - POLITICO