From Demon to Darling: A Legal History of Wine in America

1 Temperance

ONE Temperance One can scarcely study the history of liquor legislation leading up to the adoption of the Prohibition Amendment without coming to the conclusion that too often we have attempted to impose on law a burden which law by itself is not equipped to carry. RAYMOND B. FOSDICK AND ALBERT L. SCOTT, Toward Liquor Control (1933) Since the early days of the republic, Americans have turned to the law to achieve their social goals with respect to wine, devising elaborate systems of legal incentives, subsidies, restrictions, and penalties in an effort to shape behavior. American laws since the earlyseventeenth century have regulated everything from the manufactureand marketing of wine to its distribution and consumption, and theselaws have been almost continuously generated, dismantled, revived, revised, and reimagined. The content of the laws and regulations regarding wine has varied dramatically as cultural perspectives on alcoholic beverages changed.1 Over time, wine laws have been used for achieving highly divergent goals, ranging from directly encouraging viticulture in the colonies and the early republic to imposing stiff fines and criminal penalties upon people who distributed wine during statewide, and later national, prohibition. The early colonial governments went so far as to legally require citizensto plant vines; several hundred years later, state and federal governments were dispatching agents to wineries to enforce their permanent closure. Historically, temperance has been the most important objective of American liquor law, but the meaning of temperance has changed dramatically over time. In the eighteenth century, temperance meant the moderate use of all intoxicating liquors, including beer, wine, and spirits.2 By the early nineteenth century, it meant the moderate use of fermented liquors and 6 total abstinence from distilled spirits. Bythe mid-i8oos, it meant abstinence from all liquors, including fermented drinks. These varying conceptions of temperance have been influenced by changing moral, religious, medical, social, and economic factors, which in turn shaped American culture and drinking customs. Keyfiguresin American history have embraced and personified these views of temperance, and they have relied on various legal approaches to achieve their objectives, including the criminalization of public drunkenness, liquor licensing, local plebiscites on whether and when to allow alcoholic beverage sales (known as local option), and prohibition. During the nineteenth century, these laws were challenged repeatedly in the courts on constitutional grounds ranging from free trade to due process. The courts became the battleground for the fight between individual liberties (the right to manufacture wine and drink it) and public welfare (the concept of order and public health). Despite the support of a domestic wine industry by early American leaders like Puritan minister Increase Mather and President Thomas Jefferson, wine could not escape the drive toward prohibition in the nineteenth century . The failed early efforts at domestic viticulture stymied the development of a wine tradition that might have withstood the onslaught of those who were now advocating abstinence. By the mid-i8oos, when technical progress in grape growing and winemaking enabled the production of decent wine, prohibition already was taking hold of the country. Wine became just another form of alcohol, caught up in the crusade against "demon rum," the whiskey trust, and brewery-owned saloons. The courts, which for a time insisted on free trade among the states, could not thwart the political and ideological zeal of the prohibitionists. Local option led to statewide prohibition and, eventually, National Prohibition. Yet this evolution did not ultimately promote the causeof temperance. Regulating personal behavior was both unpopular and unrealistic, and those who wanted to drink found a way to do so. EARLY ASPIRATIONS FOR WINE The earliest wine laws in America were designed by settlers and colonial governments to actively develop and encourage an American wine tradition . The settlers had come to the New World in search of riches and the trappings of a prosperous life, and they viewed wine cultivation as a tangible sign of colonial success.3 The colonial governments wasted no time in devising a range of laws and T E M P E R A N C E 7 inducements to encourage vineyard development and wine production. One form of support wasto arrangeand sponsor the immigration of experts from France to advise the settlers in Virginia, Massachusetts, Pennsylvania, and the Carolinas on vine planting and to share technical expertise about viticulture and winemaking.4 In 1621, the king of England instructed the governor of Virginia "to plant abundance of vines, and take care of...