Amendment 18 — Repeal Of The Eighteenth Amendment

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Eighteenth Amendment

Section 1:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2:

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3:

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

The Eighteenth Amendment and Volstead Act were controversial in part because they empowered the federal government to police activities that implicated individual social habits and morality—a role traditionally led by state and local governments.[1](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn1amd18 " Nat’l Comm’n on Law Observance and Enf’t, Enforcement of the Prohibition Laws of the United States, H.R. Doc. No. 71-722, at 20 (1931) ( “The Eighteenth Amendment represents the first effort in our history to exten[d] directly by Constitutional provision the police control of the federal government to the personal habits and conduct of the individual.” ); Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 2–4, 6–7 & n.8, 11–12 (2006) (noting that the Eighteenth Amendment “caused a major crisis in the theory and practice of American federalism, as the national government, which lacked the courts or police necessary for implementing the [Amendment], sought to conscript state judicial and law enforcement resources.” ). For more on the gradual development of a limited federal police power during the early twentieth century, see Richard F. Hamm, Shaping the Eighteenth Amendment Shaping the Eighteenth Amendment Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Studies in Legal History) 189 (1995). ") Nationwide Prohibition quickly fell out of favor with the American public because of ineffective enforcement, harsh enforcement techniques, crime related to the illegal liquor traffic, a need for tax revenue during the Great Depression, and widespread defiance of the law.[2](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn2amd18 " Post, supra 1, at 1–4, 11–12, 20; Daniel Okrent, Last Call: The Rise and Fall of Prohibition 206, 275-76, 361, 373 (2010). Some enforcement techniques that federal or state authorities employed to investigate violations of Prohibition, such as wiretapping telephone lines, were challenged in federal court as violations of criminal defendants’ constitutional rights. See, e.g., Olmstead v. United States, 277 U.S. 438, 465 (1928) (holding that the Fourth Amendment did not protect conversations transmitted via telephone wires beyond a person’s house), overruled by Katz v. United States, 389 U.S. 347, 359 (1967); Okrent, supra, at 285–86. For more on the Supreme Court’s Prohibition Era Fourth Amendment jurisprudence, see and . ") The Eighteenth Amendment was repealed when the states ratified the Twenty-First Amendment on December 5, 1933.[3](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn3amd18 " U.S. Const. amend. XXI, § 1; . ")

The Supreme Court decided a few cases that examined the repeal’s legal implications. In United States v. Chambers, the Court held that the Twenty-First Amendment ’s ratification immediately rendered the Eighteenth Amendment inoperative.[4](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn4amd18 " 291 U.S. 217, 222 (1934). ") Consequently, “[n]either the Congress nor the courts could give it continued vitality.” [5](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn5amd18 " Id. ") The Twenty-First Amendment also nullified provisions of the Volstead Act that rested upon Congress’s Eighteenth Amendment powers, including provisions that imposed penal sanctions for violations of Prohibition.[6](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn6amd18 " Id. at 222–23. See also United States v. Constantine, 296 U.S. 287, 294–96 (1935) (holding that the Eighteenth Amendment’s repeal deprived Congress of the power to impose penalties for violating state liquor laws that criminalized the sale of alcoholic beverages). Congress repealed Titles I and II of the Volstead Act in the Liquor Law Repeal and Enforcement Act of August 27, 1935, ch. 740, § 1, 49 Stat. 872, 872. ") Courts were thus required to dismiss for lack of jurisdiction all pending prosecutions for Volstead Act violations, including proceedings on appeal.[7](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn7amd18 " Chambers, 291 U.S. at 222–23, 226. See also Massey v. United States, 291 U.S. 608, 609–10 (1934). The Supreme Court declined to consider whether final judgments of conviction entered before the Eighteenth Amendment’s repeal remained valid. Chambers, 291 U.S. at 226. ")

Nonetheless, Prohibition’s repeal did not extinguish all forms of legal liability related to the transportation, sale, or manufacture of alcoholic beverages (e.g., liability for federal taxes on alcohol).[8](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn8amd18 " See United States v. Rizzo, 297 U.S. 530, 533 (1936) (noting that the Eighteenth Amendment’s repeal did not extinguish liability for federal taxes on alcohol unless such taxes were imposed as penalties for violating liquor laws); United States v. Mack, 295 U.S. 480, 481–84 (1935) (holding that the owner of a vessel seized for illegally transporting intoxicating liquors remained liable on a bond executed pursuant to the Volstead Act). In Mack, the Court noted that the bond became payable when the owner failed to return the vessel to an officer’s custody before the day of trial. Conviction and sentencing of the crew had occurred before the end of Prohibition. Id. ") Moreover, the Twenty-First Amendment recognized that states could regulate or prohibit alcoholic beverages within their jurisdictions for nonprotectionist purposes, such as health or safety.[9](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn9amd18 " U.S. Const. amend. XXI, § 2 ( “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” ). See also Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 31–32 (U.S. 26, 2019) ( “[Section 2] allows each State leeway to enact the measures that its citizens believe are appropriate to address the public health and safety effects of alcohol use and to serve other legitimate interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests.” ); Granholm v. Heald, 544 U.S. 460, 476–482 (2005); Bacchus Imp. v. Dias, 468 U.S. 263, 276 (1984). ") Exercising this authority, a few states banned the liquor traffic within their borders until the mid-20th century.[10](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn10amd18 " Okrent, supra 2, at 374. Some “dry” counties in the United States continue to exercise the local option under state law and prohibit the liquor trade. ") In addition, the federal government continued to regulate or tax activities involving alcoholic beverages, including aspects of beverage production, wholesale distribution, importation, labeling, and advertising.[11](https://www.law.cornell.edu/constitution-conan/amendment-18/repeal-of-the-eighteenth-amendment#fn11amd18 " See, e.g., Sherman Antitrust Act, 15 U.S.C. § 1 (prohibiting “[e]very contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations” ); 26 U.S.C. § 5001 (imposing taxes on various activities related to distilled spirits, wines, and beer); Federal Alcohol Administration Act, 27 U.S.C. §§ 201–212 (requiring producers, importers, and wholesalers of certain alcoholic beverages to obtain federal permits and regulating the advertising and labeling of such beverages). In 1987, the Supreme Court upheld the National Minimum Drinking Age Act against constitutional challenges. The Act threatened to withhold five percent of highway funding from states that refused to adopt a minimum drinking age of twenty-one. See South Dakota v. Dole, 483 U.S. 203, 211 (1987). For more on federal and state authority over alcoholic beverages after Prohibition, see Twenty-First Amendment Repeal of Prohibition. See also Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 110 (1980) ( “[Prior Supreme Court] decisions demonstrate that there is no bright line between federal and state powers over liquor. . . . Although States retain substantial discretion to establish . . . liquor regulations, those controls may be subject to the federal commerce power in appropriate situations. The competing state and federal interests can be reconciled only after careful scrutiny of those concerns in a ‘concrete case.’” (quoting Hostetter v. Idlewild Bon Vouage Liquor Corp., 377 U.S. 324, 332 (1964)); William Jameson & Co. v. Morgenthau, 307 U.S. 171, 172–73 (1939) (per curiam) ( “Here, the Federal Alcohol Administration Act was attacked upon the ground that the Twenty-first Amendment to the Federal Constitution, U.S.C.A., gives to the States complete and exclusive control over commerce in intoxicating liquors, unlimited by the commerce clause, and hence that Congress has no longer authority to control the importation of these commodities into the United States. We see no substance in this contention.” ). ")

Footnotes

1

Nat’l Comm’n on Law Observance and Enf’t, Enforcement of the Prohibition Laws of the United States, H.R. Doc. No. 71-722 , at 20 (1931) ( “The Eighteenth Amendment represents the first effort in our history to exten[d] directly by Constitutional provision the police control of the federal government to the personal habits and conduct of the individual.” ); Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 2–4, 6–7 & n.8, 11–12 (2006) (noting that the Eighteenth Amendment “caused a major crisis in the theory and practice of American federalism, as th