The Twenty-First Amendment and the End of Prohibition, Part 3: Drafting and State Ratification

The Twenty-First Amendment and the End of Prohibition, Part 3: Drafting and State Ratification

Legal Sidebari

The Twenty-First Amendment and the End of
Prohibition, Part 3: Drafting and State
Ratification
October 31, 2023
This Legal Sidebar is the third 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 The Twenty-First Amendment repealed the Eighteenth Amendment, which prohibited the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. As interpreted by the Supreme Court, Section 2 of the Twenty-First Amendment 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.
Drafting of the Twenty-First Amendment
The November 1932 elections resulted in victories for many candidates who supported the Eighteenth
Amendment’s repeal, including President-elect Franklin D. Roosevelt. Shortly after the elections, the
lame-duck 72nd Congress renewed its efforts to end nationwide Prohibition. 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.
As originally introduced in the Senate, the Blaine resolution did not clearly repeal the Eighteenth
Amendment. 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. During a January 1933 markup session, the
Senate Judiciary Committee significantly revised the resolution. The revised resolution, which the
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committee reported favorably, specifically repealed the Eighteenth Amendment and protected dry states
from illegal liquor imports.
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. Responding to
such objections, Senator Blaine, the resolution’s floor manager, observed that, during the 1932 elections,
both major political parties had supported Congress’s submission of an amendment to the states revising
or repealing Prohibition.
Describing the Eighteenth Amendment as an “inflexible police regulation which might be appropriate in a
municipal ordinance,” Senator Blaine offered his interpretation of the draft Twenty-First Amendment’s
provisions.
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. Section 2 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. Observing that the Supreme Court’s pre-
Prohibition Era Commerce Clause jurisprudence had limited the states’ power over liquor imports,
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.” Several other Members of Congress echoed Senator 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. Nonetheless, a few remarks of Senator Blaine and other Senators
suggest that some Members may have intended to grant the states even broader authority over alcoholic
beverages.
During consideration of the draft Twenty-First Amendment, the Senate amended the joint resolution to
provide for its submission to specially elected delegates in state ratifying conventions rather than state
legislatures. At the time of its proposal, many politicians believed that state ratifying conventions, rather
than state legislatures, should approve constitutional amendments governing individual rights and morals.
In addition to seeking a ratification method deemed to better reflect the popular will, Congress may have
also wished to bypass the temperance lobby, which remained powerful in state legislatures. According to
this view, by requiring ratification from specially selected state delegates, rather than state legislators,
Congress increased the Amendment’s chances of successful ratification.
On February 16, 1933, the Senate agreed to the joint resolution, as amended, by a vote of 63-23. Four
days later, after a short debate, the House passed the joint resolution under suspension of the rules by a
vote of 289-121. With the House’s approval, the Twenty-First Amendment was submitted to the states on
February 20, 1933. In anticipation of the Eighteenth Amendment’s repeal, on March 22, 1933, Congress
enacted the Cullen-Harrison Act. The act legalized the manufacture and sale of beer and light wines with
up to 3.2% alcohol by weight, except where prohibited by state law, effective April 7, 1933.
Ratification of the Twenty-First Amendment
Congress proposed the Twenty-First Amendment on February 20, 1933, requiring state ratifying
conventions to approve it within seven years in order for it to become part of the Constitution. The
requisite 36 state ratifying conventions approved the Twenty-First Amendment in less than a year. In
general, the delegates at these state conventions, most of whom had pledged to vote for the Eighteenth
Amendment’s repeal, spent little time debating an issue that had already received strong popular support
at the polls. On December 5, 1933, Acting Secretary of State William Phillips certified that the
Amendment had been adopted, thereby ending almost 14 years of nationwide Prohibition.

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On the day of the Twenty-First Amendment’s ratification, President Franklin D. Roosevelt proclaimed the
end of nationwide Prohibition. Observing that the Twenty-First Amendment prohibited importing liquor
into states in violation of their laws, Roosevelt urged Americans to ensure “that this return of individual
freedom shall not be accompanied by the repugnant conditions that obtained prior to the adoption of the
Eighteenth Amendment and those that have existed since its adoption.” Roosevelt implored Americans to
stop buying untaxed, bootlegged liquor and asked “that no State shall by law or otherwise authorize the
return of the saloon either in its old form or in some modern guise.”
With the Eighteenth Amendment’s repeal, the states—and many local governments acting under delegated
state authority—again assumed primary responsibility for regulating alcoholic beverages. Exercising this
authority, a few states banned or significantly restricted liquor traffic statewide until the mid-20th century.
Nearly all of the states that permitted the sale of alcoholic beverages adopted a three-tier distribution
system, and some states granted an administrative agency a monopoly over the retailing or wholesaling of
some types of alcoholic beverages sold for off-premises consumption. State and local jurisdictions
adopted a variety of laws and policies governing the licensing, taxation, availability, prices, and
production of alcoholic beverages. The federal government continued to regulate or tax activities
involving alcoholic beverages, including aspects of beverage production, wholesale distribution,
importation, labeling, and advertising.
Click here to continue to Part 4.

Author Information

Brandon J. Murrill

Attorney-Adviser (Constitution Annotated)

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