Amendment 21 — Overview Of Twenty First Amendment Repeal Of Prohibition

Twenty-First Amendment , Section 1:

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

The Twenty-First Amendment repealed the Eighteenth Amendment, thereby ending the Constitution’s nationwide ban on the manufacture, sale, or transportation of “intoxicating liquors” for beverage purposes. Section 2 of the Twenty-First Amendment authorized the states to regulate or prohibit alcoholic beverages within their jurisdictions for legitimate, nonprotectionist purposes, such as health or safety.; Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 31–32 (U.S. June 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, 484–85 (2005). Legitimate reasons for states to regulate alcoholic beverages might include “promot[ing] temperance and responsible drinking,” “ensur[ing] an orderly marketplace,” preventing beverage producers’ “undue influence” over retailers, and “maintain[ing] oversight through reporting and taxation.” Daniel J. Croxall, Delirium of Disorder: Tension Between the Dormant Commerce Clause and the Twenty-First Amendment Stunts Independent Craft Brewery Growth, 126 Penn. St. L. Rev. 435, 447 n.87, 463 (2022). ") Much of the Supreme Court’s Twenty-First Amendment jurisprudence has addressed the scope of the states’ Section 2 powers.. ")

The Twenty-First Amendment ’s proposal and ratification resulted from the United States’ problematic experience with Prohibition. From their inception, the Eighteenth Amendment and its implementing law, the 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. ( “The Eighteenth Amendment represents the first effort in our history to [extend] 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. 1, 2–4, 6–7 & n.8, 11–12 (2006). ") 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.. ") The Twenty-First Amendment ’s framers sought to eliminate the Eighteenth Amendment’s inflexible and problematic nationwide ban on the liquor trade while recognizing the states’ authority to regulate or prohibit alcoholic beverages within their borders in keeping with local sentiment.; . ") However, it is unclear whether the Amendment’s framers intended to give the states sweeping regulatory power over alcoholic beverages or merely sought to protect “dry” states from beverage imports that were illegal under state law.. ")

In its early decisions interpreting the Twenty-First Amendment , the Supreme Court adopted an expansive view of the states’ authority to regulate the importation, transportation, sale, distribution, and use of alcoholic beverages within their jurisdictions. The Court initially determined that Section 2 superseded some of the Constitution’s limits on state action, including the Dormant Commerce Clause doctrine, which prohibits states from discriminating against interstate commerce. However, beginning later in the twentieth century, the Court embraced a much narrower view of the states’ Twenty-First Amendment powers. Viewing the Amendment as “one part of a unified constitutional scheme,” ">Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 12 (U.S. June 26, 2019) (discussing the Supreme Court’s contextual approach to interpreting the Twenty-First Amendment). ") the Court has held that Section 2 did not automatically override limits on state authority found in the Commerce Clause (citation and internal quotation marks omitted). ") and other provisions of the Constitution, such as the First Amendment ’s Establishment and Free Speech Clauses (incorporating the First Amendment’s Establishment Clause against the states); Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the First Amendment’s guarantees of freedom of speech and the press against the states). See also Larkin v. Grendel’s Den, 459 U.S. 116, 122 n.5 (1982); . ") and the Fourteenth Amendment ’s Due Process and Equal Protection Clauses.; . ")

In the decades after the Twenty-First Amendment ’s ratification, the Supreme Court also confirmed that Congress’s constitutional authority over interstate and foreign commerce allows the federal government to regulate many aspects of the liquor trade. …