The Eighteenth Amendment and National Prohibition, Part 7: Repeal

The Eighteenth Amendment and National Prohibition, Part 7: Repeal

Legal Sidebari

The Eighteenth Amendment and National
Prohibition, Part 7: Repeal
June 26, 2023
This Legal Sidebar post is the last 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.
Repeal of the Eighteenth Amendment
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. 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 The Eighteenth Amendment was repealed when the states ratified the Twenty-First Amendment on
December 5, 1933.
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. Consequently, “neither the Congress nor the courts could give it
continued vitality.” 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. Courts were thus required to dismiss for lack of jurisdiction all
pending prosecutions for Volstead Act violations, including proceedings on appeal.
Congressional Research Service
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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).
Moreover, the Twenty-First Amendment recognized that states could regulate or prohibit alcoholic
beverages within their jurisdictions for legitimate, nonprotectionist purposes, such as health or safety.
Exercising this authority, a few states banned the liquor traffic within their borders until the mid-20th
century. 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.
Additional References
DANIEL OKRENT, LAST CALL: THE RISE AND FALL OF PROHIBITION (2010)
ERIC BURNS, THE SPIRITS OF AMERICA: A SOCIAL HISTORY OF ALCOHOL (2004)
MARK EDWARD LENDER & JAMES KIRBY MARTIN, DRINKING IN AMERICA: A HISTORY (1982)
RICHARD F. HAMM, SHAPING THE EIGHTEENTH AMENDMENT (1995)

Author Information

Brandon J. Murrill

Legislative Attorney

Disclaimer
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