The Twenty-First Amendment and the End of Prohibition, Part 1: Introduction

Legal Sidebari

The Twenty-First Amendment and the End of
Prohibition, Part 1: Introduction
October 31, 2023
This Legal Sidebar is the first in a six-part series that discusses the Twenty-First Amendment to the
Constitution. The Twenty-First Amendment repealed the Eighteenth Amendment, which prohibited the
manufacture, sale, or transportation of “intoxicating liquors” for “beverage purposes” within the United
States. Section 2 of the 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.” As interpreted by the Supreme Court, Section 2 recognizes that
states may regulate or prohibit alcoholic beverages within their jurisdictions for legitimate,
nonprotectionist purposes, such as health or safety.
Since the Twenty-First Amendment’s ratification in 1933, the Supreme Court has grappled with difficult
questions about how the Constitution allocates the power to regulate alcoholic beverages between the
federal and state governments. Such questions implicate the concept of federalism, which refers to the
division and sharing of power between the national and state governments. Accordingly, understanding
how the Twenty-First Amendment interplays with other constitutional provisions may assist Congress in
its legislative activities. Additional information on this topic is available at the Constitution Annotated:
Analysis and Interpretation of the U.S. Constitution.
Historical Overview
The Twenty-First Amendment’s proposal and ratification resulted from the United States’ 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 filled 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 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 nationwide ban on the
liquor trade while recognizing the states’ authority to regulate or prohibit alcoholic beverages within their
borders in accordance with local sentiment. However, it is unclear whether the Amendment’s framers
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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
20th 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,” the Court has held that Section
2 does not automatically override limits on state authority found in the Commerce Clause and other
provisions of the Constitution, such as the First Amendment’s Establishment and Free Speech Clauses 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. Generally, federal law may preempt conflicting state liquor laws
when the federal government’s regulatory interests outweigh those asserted by the states.
Click here to continue to Part 2.

Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)




Disclaimer
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