Amendment 21 — Alcohol Regulation And The Fourteenth Amendment Due Process And Equal Protection Clauses

prev | next

Twenty-First Amendment , Section 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.

The Supreme Court has confirmed that a state cannot ignore the Fourteenth Amendment ’s Due Process and Equal Protection Clauses when it relies on its Twenty-First Amendment powers to regulate alcoholic beverages.[1](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn1amd21 " For more on the Fourteenth Amendment’s Due Process and Equal Protection Clauses, see . ") Generally, the Fourteenth Amendment ’s Due Process Clause requires state actors to provide certain procedural protections before they deprive a person of any protected life, liberty, or property interest.[2](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn2amd21 " . ") In 1971, the Court held that the Fourteenth Amendment requires a state to provide an individual with due process when a state’s liquor law would deprive an individual of a protected liberty interest.[3](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn3amd21 " Wisconsin v. Constantineau, 400 U.S. 433, 434–36 (1971). ") In Wisconsin v. Constantineau, the Hartford police chief, enforcing a Wisconsin statute intended to combat excessive drinking, posted a notice in the city’s retail liquor stores forbidding sales or gifts of liquor to a local adult resident for one year.[4](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn4amd21 " Id. at 434-35. ") The Court struck down the Wisconsin statute, determining that the law prevented an individual from buying liquor without adequate notice or the opportunity for an impartial hearing.[5](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn5amd21 " Id. at 434–39; Paul v. Davis, 424 U.S. 693, 707–09 (1976) (construing the liberty interest in Constantineau as the individual’s right to obtain liquor rather than her interest in preventing reputational damage “standing alone” ). For more information on these cases, see . ") The Court determined that the state could not rely on its Twenty-First Amendment authority or its general police powers to enact a statute that lacked such procedural due process safeguards.[6](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn6amd21 " See Constantineau, 400 U.S. at 436. ")

In the Fourteenth Amendment equal protection context, the Supreme Court has held that it will closely scrutinize state liquor laws that single someone out based on a suspect classification (e.g., race) or quasi-suspect classification (e.g., gender).[7](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn7amd21 " Craig v. Boren, 429 U.S. 190, 207–08 (1976) (addressing gender-based discrimination); Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 175–79 (1972) (addressing state-sanctioned, private racial discrimination). When the government legislates or acts on the basis of a suspect classification such as race, the Supreme Court sets aside the traditional standard of equal protection review and exercises a heightened standard of review referred to as strict scrutiny. See . See also Equal Protection, Black’s Law Dictionary 654 (10th ed. 2014) (referring to “equal protection” as the “14th Amendment guarantee that the government must treat a person or class of persons the same as it treats other persons or classes in like circumstances” ). ") In Craig v. Boren the Court determined that the Twenty-First Amendment did not override Fourteenth Amendment equal protection guarantees that prevent a state from drawing invidious distinctions based on gender.[8](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn8amd21 " Craig, 429 U.S. at 204-10. ") Craig involved a challenge to an Oklahoma law prohibiting the sale of beer with a low alcohol content to males under twenty-one years of age and females under eighteen.[9](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn9amd21 " Id. at 191-92. ") The Court held that this “gender-based differential” in minimum drinking ages amounted to a “denial of the equal protection of the laws to males aged 18–20.” [10](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn10amd21 " Id. at 192, 210. See also . ") Differential treatment of young men was not “substantially related” to achieving the state’s asserted objective of traffic safety, and the Twenty-First Amendment could not “save the invidious gender-based discrimination from invalidation.” [11](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn11amd21 " Craig, 429 U.S. at 199, 204–05, 208–210 & n.23 ( “[T]he operation of the Twenty-first Amendment does not alter the application of equal protection standards that otherwise govern this case.” ). In Craig, the Supreme Court overruled its earlier decision in Goesaert v. Cleary, 335 U.S. 464, 465–67 (1948), which had cited the Twenty-First Amendment when upholding against a Fourteenth Amendment Equal Protection Clause challenge a Michigan law prohibiting women from acting as bartenders unless they were the “wife or daughter” of a male owner of a licensed liquor establishment. ") Quoting a constitutional law treatise, the Court stated, “Neither the text nor the history of the Twenty-First Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where the sale or use of liquor is concerned.” [12](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn12amd21 " Craig, 429 U.S. at 206 (quoting P. Brest, Processes of Constitutional Decision Making, Cases and Materials 258 (1975)) (internal quotation marks omitted). ")

By contrast, in several cases decided during the early to mid-twentieth century, the Supreme Court held that the Fourteenth Amendment ’s Equal Protection Clause did not prevent states from exercising their Twenty-First Amendment powers to discriminate against out-of-state liquor products.[13](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn13amd21 " See, e.g., Mahoney v. Joseph Triner Corp., 304 U.S. 401, 402–04 (1938) (upholding against a Fourteenth Amendment equal protection challenge a Minnesota law prohibiting a foreign corporation from importing certain finished liquor products whose brands had not been registered with the U.S. Patent Office even though the law discriminated among competing out-of-state liquor brands and against liquor processed entirely out-of-state). See also Joseph E. Seagram & Sons, Inc. v. Hostetter, 384 U.S. 35, 46–52 (1966) (upholding against Fourteenth Amendment substantive due process and equal protection challenges New York liquor laws that required liquor brand owners to file monthly schedules of prices at which liquor would be sold to wholesalers and retailers in the state and to affirm that “the bottle and case price of liquor” was “no higher than the lowest price at which sales were made anywhere in the United States during the preceding month” by the brand owner, his agent, or a related person) (internal quotation marks omitted), overruled on other grounds by Healy v. Beer Inst., 491 U.S. 324, 343 (1989); Ziffrin, Inc. v. Reeves, 308 U.S. 132, 133–34, 138–40 (1939) (rejecting Fourteenth Amendment equal protection and due process challenges to the application of a Kentucky law that required the carriage of alcoholic beverages between Kentucky distillers and another state to occur only by state-licensed common carrier as a reasonable exercise of the state’s Twenty-First Amendment and reserved police powers and noting that interstate commerce was subject to “the same regulations as those applicable to intrastate commerce” ); Indianapolis Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391, 394 (1939) (determining that a retaliatory Michigan law that banned the sale of imported beer from states that discriminated against Michigan-produced beer did not violate the Fourteenth Amendment’s Due Process or Equal Protection Clauses because “discrimination between domestic and imported intoxicating liquors, or between imported intoxicating liquors, is not prohibited by the equal protection clause” and the “substantive power of the State to prevent the sale of intoxicating liquor is undoubted” ); State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 63–64 (1936) (upholding a California law that imposed a license fee on wholesale importers of beer and concluding that a “classification recognized by the Twenty-First Amendment cannot be deemed forbidden by the Fourteenth. Moreover, the classification in taxation made by California rests on conditions requiring difference in treatment.” ). ") Although it is unclear whether these rulings reflect the current state of the law,[14](https://www.law.cornell.edu/constitution-conan/amendment-21/alcohol-regulation-and-the-fourteenth-amendment-due-process-and-equal-protection-clauses#fn14amd21 " See Craig, 429 U.S. at 207 & n.21 (1976) (characterizing as nonbinding “dictum” the Supreme Court’s statement in State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 64 (1936), that “a classification recognized by the <a href="