Drying Up Freedom of the Seas

During Prohibition, could the government enforce the alcohol ban by searching any ship coming in from the Atlantic or Pacific Oceans — even outside U.S. territorial waters?

A 1923 New York Times Magazine article described the debate:

Hitherto, the infringement of such maritime liberty has been confined to periods of war and, even then, has been accepted, if at all, only under protest. The present position is, however, that the right of search would be exercised by the United States, not under the necessity of war nor for the enforcement of any international covenant, but for the sole purpose of preventing an evasion of a domestic law.

Four years later in 1927, the Supreme Court unanimously held in United States v. Lee that the government could search ships beyond just U.S. territorial waters, in the name of enforcing Prohibition — so long as they had probable cause.

As Justice Louis Brandeis wrote in the majority opinion:

There was probable cause to believe that our revenue laws were being violated by an American vessel and the persons thereon in such manner as to render the vessel subject to forfeiture. Under such circumstances, search and seizure of the vessel, and arrest of the persons thereon, by the Coast Guard on the high seas is lawful, as like search and seizure of an automobile, and arrest of the persons therein, by prohibition officers on land is lawful.

The Court had recently found that such “automobile searches” were constitutional in the 1925 decision Carroll v. United States.

Drying Up Freedom of the Seas

Published: Sunday, May 6, 1923

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