The Eighteenth Amendment and National Prohibition, Part 4: Early Prohibition Laws

The Eighteenth Amendment and National Prohibition, Part 4: Early Prohibition Laws

Legal Sidebari

The Eighteenth Amendment and National
Prohibition, Part 4: Early Prohibition Laws
June 26, 2023
This Legal Sidebar post is the fourth in a seven-part series that discusses the Eighteenth Amendment to
the Constitution. Prior to its repeal, the Eighteenth Amendment prohibited the manufacture, sale, or
transportation of “intoxicating liquors” for “beverage purposes” within the United States. Section 2 of the
Amendment granted Congress and the state legislatures “concurrent power” to enforce nationwide
Prohibition by enacting “appropriate legislation.” The Eighteenth Amendment was partly a response to the
Supreme Court’s pre-Prohibition Era Commerce Clause jurisprudence, which limited the federal and state
governments’ power over the liquor traffic. As such, the Eighteenth Amendment’s history provides insight
into the judicial evolution of the Commerce Clause, which operates as both a positive grant of legislative
power to Congress and a limit on state authority to regulate commerce. Additional information on this
topic will be published in the Constitution Annotated: Analysis and Interpretation of the U.S.
Constitution.
Early Federal and State Prohibition Laws
Before the Civil War, several states enacted laws that restricted or banned the manufacture and sale of
alcoholic beverages statewide. However, by the war’s end, most of these states had repealed or weakened
their prohibition laws. In the late 1800s, a resurgent temperance movement prompted the enactment of
new statewide bans or restrictions on the liquor traffic. Producers and sellers of alcoholic beverages
challenged some of these state prohibition laws in federal court, contending that they violated various
provisions of the Constitution, including the Commerce Clause.
In evaluating constitutional challenges to late 19th century state prohibition laws, the Supreme Court
confirmed the states’ power to prohibit the intrastate manufacture and sale of alcoholic beverages.
However, the 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. The Court decided that,
absent contrary federal law, such state bans impermissibly burdened interstate commerce.
Responding to concerns that the Supreme Court’s decisions would prevent “dry” states from enforcing
their prohibition laws fully, Congress enacted various statutes that specifically subjected imported
alcoholic beverages to state regulation. For instance, the Webb-Kenyon Act of 1913 effectively
authorized the states to restrict the direct shipment of imported alcoholic beverages to consumers for
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personal use. In 1917, Congress enacted the Reed Amendment to penalize anyone who imported
alcoholic beverages into a “dry” state for personal use by subjecting them to imprisonment or payment of
a fine.
In addition to facilitating state prohibition efforts, Congress passed nationwide laws restricting the
production and sale of alcoholic beverages during the United States’ participation in World War I. In May
1917, one month after declaring war on Germany, Congress prohibited the sale of alcoholic beverages to
soldiers in uniform. Some wartime prohibition laws were ostensibly designed to preserve grain and other
food ingredients for soldiers’ provisions. For instance, later in 1917, Congress enacted the Food Control
Act or “Lever Act,” which prohibited liquor producers from using food materials to manufacture distilled
alcoholic beverages. The President, acting pursuant to authority delegated to him in the Act, proclaimed
restrictions on the production of less potent beverages, including beer.
In November 1918, about two months before the states ratified the Eighteenth Amendment—and a little
more than a year before Prohibition took effect—Congress enacted the War-Time Prohibition Act. The
Act banned the sale of “intoxicating” alcoholic beverages until the President declared an end to the
country’s mobilization for World War I. Charged with enforcing the Act, the Commissioner of Internal
Revenue determined that “a beverage containing as much as one-half of one per centum of alcohol by
volume would be regarded as intoxicating.” Thus, even before the states ratified the Eighteenth
Amendment, the federal government had imposed stringent nationwide restrictions on the liquor trade to
facilitate state prohibition laws and support the nation’s efforts in World War I.
Click here to continue to Part 5.

Author Information

Brandon J. Murrill

Legislative Attorney

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