Amendment 21 — Drafting Of The Twenty First Amendment

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Twenty-First Amendment , Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

The November 1932 elections resulted in victories for many candidates who supported the Eighteenth Amendment’s repeal, including President-elect Franklin D. Roosevelt.[1](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn1amd21 " See Senate Stories: Beer by Christmas, U.S. Senate, https://www.senate.gov/artandhistory/senate-stories/beer-by-christmas.htm. ") Shortly after the elections, the lame-duck 72nd Congress renewed its efforts to end nationwide Prohibition.[2](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn2amd21 " Id. Because the Twentieth Amendment, which prescribes the date on which the terms of Senators and Representatives end, did not become effective until October 15, 1933, the 72nd Congress ended in March 1933. Beginning with the 73rd Congress, the terms of Representatives and Senators ended on January 3 after an election year. U.S. Const. amend. XX, § 1; . ") On December 6, 1932, Senator John J. Blaine of Wisconsin introduced a joint resolution, S.J. Res. 211, that would, as modified, be ratified by the states as the Twenty-First Amendment .[3](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn3amd21 " S.J. Res. 211, 72d Cong., 2d Sess. (1932); 76 Cong. Rec. 64–65 (1932). On December 5, 1932, a joint resolution to repeal the Eighteenth Amendment was introduced in the House. H.J. Res. 480, 72d Cong., 2d Sess. (1932). On December 5, 1932, the House narrowly rejected the resolution. 76 Cong. Rec. 12–13 (1932). During debate over the resolution, some House Members suggested that they would vote against the measure on procedural grounds because it had been offered under suspension of the rules with no amendments allowed and minimal time allotted for debate. Id. at 8–9. Since the beginning of Prohibition, a number of resolutions that would have repealed or revised the Eighteenth Amendment were introduced in the House and Senate. See, e.g., S. Doc. No. 163, at 1–3, 24–27, 87th Cong., 2d Sess. (1963) (listing joint resolutions proposing amendments to the Constitution that had been introduced in various Congresses). ")

As originally introduced in the Senate, the Blaine resolution did not clearly repeal the Eighteenth Amendment.[4](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn4amd21 " S.J. Res. 211, 72d Cong., 2d Sess. (1932). ") Instead, the resolution barred Congress from authorizing the transportation or importation of intoxicating liquors into “dry” states in violation of state law while permitting federal legislation that would assist the states in enforcing their prohibition laws.[5](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn5amd21 " Id. (prohibiting Congress from exercising its commerce power to allow liquor imports into “dry states” ). ") During a January 1933 markup session, the Senate Judiciary Committee significantly revised the resolution.[6](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn6amd21 " See S. Rep. No. 72-1022, at 1 (1933). ") The revised resolution, which the committee reported favorably, specifically repealed the Eighteenth Amendment and protected dry states from illegal liquor imports.[7](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn7amd21 " 76 Cong. Rec. 4138–39 (1933) (reproducing the text of S.J. Res. 211 as reported by the Senate Judiciary Committee). The revised joint resolution imposed a ratification deadline of seven years. Id. Initially, Section 3 of the revised joint resolution granted Congress “concurrent power” to “regulate or prohibit the sale of intoxicating liquors” for consumption on premises (e.g., restaurants or bars)—a provision intended to prohibit the return of the licensed saloon. See id. at 4138–39, 4141. The Senate agreed to an amendment removing Section 3 after some Senators suggested it would defeat the purpose of repealing Prohibition by granting the federal government a general police power to impose on the states a “single standard of conduct . . . without regard to local sentiment and local habits.” Id. at 4145–46, 4178–79. ")

During Senate debates over the draft Twenty-First Amendment , opponents argued that repealing the Eighteenth Amendment would permit licensed saloons and their negative societal impacts.[8](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn8amd21 " See, e.g., id. at 4216 (statement of Sen. Robinson); id. at 4219–20 (statement of Sen. Glass). ") Responding to such objections, Senator Blaine, the resolution’s floor manager, noted that, during the 1932 elections, both major political parties had supported Congress’s submission of an amendment to the states revising or repealing Prohibition.[9](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn9amd21 " Id. at 4139–40. ") Describing the Eighteenth Amendment as an “inflexible police regulation which might be appropriate in a municipal ordinance,” [10](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn10amd21 " Id. at 4143. ") Senator Blaine offered his interpretations of the draft Twenty-First Amendment ’s provisions.[11](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn11amd21 " Id. at 4139–41. ")

Section 1 of the draft Twenty-First Amendment , which repealed the Eighteenth Amendment, did not require much explanation. However, Section 2 was more ambiguous and controversial.[12](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn12amd21 " Section 2, which was ratified as part of the Twenty-First Amendment, provides that “[t]he 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.” ") Senator Blaine contended that Section 2 would “restor[e] to the States” the power to regulate alcoholic beverages that they had exercised in the nation’s early years.[13](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn13amd21 " See 76 Cong. Rec. 4141 (1933). Since the Founding, the states had possessed broad authority to regulate or prohibit the manufacture and sale of alcoholic beverages within their borders. See Mugler v. Kansas, 123 U.S. 623, 659 (1887). Early American laws regulating establishments that served alcoholic beverages established licensing requirements, closing times, “limitations on the volume of liquor served,” and imposed fines for excessive drinking on patrons and businesses. Indomitable Spirits: Prohibition in the United States: Saloons, Digital Pub. Libr. of Am., >https://dp.la/exhibitions/spirits/early-alcohol-consumption/saloons; Clark Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp. Probs. 544, 544–47, 552 (1940) (surveying the history of early American legislation regulating the retail sale of alcoholic beverages, including licensing, regulatory, and taxation provisions that applied to taverns); 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 3 (1931) (describing “systems of restriction, through taxation and excise, closing hours, prohibition of selling to certain types of person, high license, local option, state dispensaries, state prohibition, and finally national prohibition” ). ") Noting that the Supreme Court’s pre-Prohibition Era Commerce Clause jurisprudence had limited the states’ power over liquor imports,[14](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn14amd21 " See 76 Cong. Rec. 4141 (1933). During the late 1800s, the Supreme Court held that the Commerce Clause prevented the states from banning the importation or initial sale of out-of-state beverages that remained in their original packages. See Bowman v. Chi. & Nw. Ry. Co., 125 U.S. 465, 498 (1888); Leisy v. Hardin, 135 U.S. 100, 122–23 (1890). The Court decided that, absent contrary federal law, such state bans impermissibly burdened interstate commerce. See sources cited supra. In response to concerns that various Supreme Court decisions would prevent “dry” states from enforcing their prohibition laws fully, Congress enacted the Webb-Kenyon Act and other federal laws that specifically subjected imported alcoholic beverages to state regulation. For a discussion of these federal laws and the Court’s earlier temperance-law jurisprudence, see Granholm v. Heald, 544 U.S. 460, 476–482 (2005); and Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 12–20 (U.S. June 26, 2019). See also . ") Senator Blaine contended that Section 2 would “assure the so-called dry States against the importation of intoxicating liquor into those States [by writing] permanently into the Constitution a prohibition along that line.” [15](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn15amd21 " See 76 Cong. Rec. 4141 (1933). ") Several other Members of Congress echoed Sen. Blaine’s characterization of Section 2 as “protecting” dry states from liquor imports that a future Congress or Supreme Court majority might authorize after Prohibition’s repeal.[16](https://www.law.cornell.edu/constitution-conan/amendment-21/drafting-of-the-twenty-first-amendment#fn16amd21 " Id. at 4170–71. See also Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 21 (U.S. June 26, 2019) (citing 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah) (arguing that Section 2 of the Twenty-First Amendment would “incorporat[e] [the Webb-Kenyon Act] permanently in the Constitution of the United States” ); id. at 4168 (statement of Sen. Fess) ( “[T]he second section of the joint resolution . . . is designed to permit the Federal authority