Twenty-first Amendment to the United States Constitution

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The Twenty-first Amendment in the National Archives

The Twenty-first Amendment (Amendment XXI) to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide prohibition on alcohol. The Twenty-first Amendment was proposed by the 72nd Congress on February 20, 1933, and was ratified by the requisite number of states on December 5, 1933. It is unique among the 27 amendments of the U.S. Constitution for being the only one to repeal a prior amendment, as well as being the only amendment to have been ratified by state ratifying conventions.

The Eighteenth Amendment was ratified on January 16, 1919, after years of advocacy by the temperance movement. The subsequent enactment of the Volstead Act established federal enforcement of the nationwide prohibition on alcohol. As many Americans continued to drink despite the amendment, Prohibition gave rise to a profitable black market for alcohol, fueling the rise of organized crime. Throughout the 1920s, Americans increasingly came to see Prohibition as unenforceable, and a movement to repeal the Eighteenth Amendment grew until the Twenty-first Amendment was ratified in 1933.

Section 1 of the Twenty-first Amendment expressly repeals the Eighteenth Amendment. SectionTemplate:Nbsp2 bans the importation of alcohol into states and territories that have laws prohibiting the importation or consumption of alcohol. Several states continued to be "dry states" in the years after the repealing of the Eighteenth Amendment. Nonetheless, several states continue to closely regulate the distribution of alcohol. Many states delegate their power to ban the importation of alcohol to counties and municipalities, and there are numerous dry communities throughout the United States. SectionTemplate:Nbsp2 has occasionally arisen as an issue in Supreme Court cases that touch on the Commerce Clause.

Background

The Eighteenth Amendment to the Constitution had ushered in a period known as Prohibition, during which the manufacture, distribution, and sale of alcoholic beverages was illegal. The enactment of the Eighteenth Amendment in 1919 was the crowning achievement of the temperance movement, but it soon proved highly unpopular. Crime rates soared under Prohibition as gangsters, such as Chicago's Al Capone, became rich from a profitable, often violent, black market for alcohol. The federal government was incapable of stemming the tide: enforcement of the Volstead Act proved to be a nearly impossible task and corruption was rife among law enforcement agencies.<ref>Mark Thornton, The Economics of Prohibition, Salt Lake City: University of Utah Press, 1991.</ref> In 1932, wealthy industrialist John D. Rockefeller Jr. stated in a letter: Template:Quote

As more and more Americans opposed the Eighteenth Amendment, a political movement grew for its repeal. However, repeal was complicated by grassroots politics. Although the U.S. Constitution provides two methods for ratifying constitutional amendments,<ref>(Article V, U.S. Constitution)</ref> only one method had been used up until that time: ratification by the state legislatures of three-fourths of the states. However, the wisdom of the day was that the lawmakers of many states were either beholden to or simply fearful of the temperance lobby.Template:Cn

Proposal and ratification

The Congress adopted the Blaine Act, which proposed the Twenty-first Amendment, on February 20, 1933.<ref>Template:Cite web</ref><ref>Template:Cite journal</ref>

The proposed amendment was adopted on December 5, 1933. It is the only amendment to have been ratified by state ratifying conventions, specifically selected for the purpose.<ref>Template:Cite web "An Overlooked Reconsideration of a Fundamental Question in U.S. Constitutional Law". Gilder, Eric and Hagger, Mervyn. British and American Studies (University of the West, Timișoara) 13 (2007): 163–74.</ref>

The Twenty-first Amendment ending national prohibition also became effective on December 5, 1933. The Acting Secretary of State William Phillips certified the amendment as having been passed by the required three-fourths of the states at 5:49 p.m. EST, just 17 minutes after the passage of the amendment by the Utah convention.<ref name= proclamation>Template:Cite news</ref><ref name= timetable>Template:Cite news</ref> President Roosevelt then issued a proclamation following the passage and certification of the amendment which stated in part the following: "I trust in the good sense of the American people that they will not bring upon themselves the curse of excessive use of intoxicating liquors to the detriment of health, morals and social integrity. The objective we seek through a national policy is the education of every citizen towards a greater temperance throughout the nation."<ref>Template:Cite news</ref><ref>Template:Cite news</ref> The end of prohibition was thought to be responsible for the creation of a half million jobs.<ref>Universal Newspaper Newsreel from late 1933</ref>

The various responses of the 48 states is as follows:<ref>Template:Cite web</ref><ref name="21AmdRat1938pg209">Template:Citation</ref>

The following states ratified the amendment: Template:Div col

1. Michigan: April 10, 1933 (99–1)<ref>"Immediate Action Promised on State Beer and Wine Bill". The Ludington Daily News (Ludington, Michigan). April 11, 1933. p. 1.</ref>
2. Wisconsin: April 25, 1933 (15–0)<ref name= delaware/>
3. Rhode Island: May 8, 1933 (31–0)<ref>"Rhode Island Casts Is Vote for Repeal: Governor Green Makes Address at Convention". Newport Mercury and Weekly News (Newport, Rhode Island). May 12, 1933. p. 4.</ref>
4. Wyoming: May 25, 1933 (65–0)<ref>"Wyoming Casts Formal Vote for Repeal: Final Action Is Unanimous". Casper Star-Tribune (Casper, Wyoming). May 25, 1933. p.1, 2.</ref>
5. New Jersey: June 1, 1933 (202–2)<ref>"State Formally Votes Repeal at Convention 202-2". The Central New Jersey Home News (New Brunswick, New Jersey). June 1, 1933. p. 1.</ref>
6. Delaware: June 24, 1933 (17–0)<ref name= delaware>"Delaware Repeal Convention Acts Against Dry Law". The News Journal (Wilmington, Delaware). June 24, 1933. p. 1, 20).</ref>
7. Indiana: June 26, 1933 (246–83)<ref>"Indiana Formally Votes For Prohibition Repeal". Associated Press. The Evansville Journal (Evansville, Indiana). June 27, 1933. p. 4.</ref>
8. Massachusetts: June 26, 1933 (45–0)<ref>"Bay State Rushes Through Wet Vote: Convention Takes Only 20 Minutes to Cast Ballots for Repeal". The Boston Globe. June 26, 1933. p. 1, 4.</ref>
9. New York: June 27, 1933 (150–0)<ref>"New York Ratifies Repeal of Dry Law". United Press International. Buffalo Evening News (Buffalo, New York). June 28, 1933. p. 16.</ref>
10. Illinois: July 10, 1933 (50–0)<ref>"Illinois, Tenth State, Ratifies Dry Law Repeal: 50 Delegates Cast Unanimous Vote". Chicago Tribune. July 11, 1933. p. 1, 6.</ref>
11. Iowa: July 10, 1933 (90–0)Template:Efn<ref name= iowa>"Iowa Formally Ratifies Dry Law Repeal". Associated Press. Sioux City Journal (Sioux City, Iowa). July 11, 1933. p. 1, 2.</ref>
12. Connecticut: July 11, 1933 (50–0)<ref>"Connecticut 12th to Vote to End National Prohibition". Associated Press. The Journal (Meriden, Connecticut). July 11, 1933. p. 1, 9.</ref>
13. New Hampshire: July 11, 1933
14. California: July 24, 1933
15. West Virginia: July 25, 1933
16. Arkansas: August 1, 1933
17. Oregon: August 7, 1933
18. Alabama: August 8, 1933
19. Tennessee: August 11, 1933
20. Missouri: August 29, 1933
21. Arizona: September 5, 1933
22. Nevada: September 5, 1933
23. Vermont: September 23, 1933
24. Colorado: September 26, 1933
25. Washington: October 3, 1933
26. Minnesota: October 10, 1933
27. Idaho: October 17, 1933
28. Maryland: October 18, 1933
29. Virginia: October 25, 1933
30. New Mexico: November 2, 1933
31. Florida: November 14, 1933
32. Texas: November 24, 1933
33. Kentucky: November 27, 1933
34. Ohio: December 5, 1933
35. Pennsylvania: December 5, 1933
36. Utah: December 5, 1933 (20–0)<ref name= utah>"Utah Vote Ends Prohibition Era: State's Decisive Ballot Flashed to Nation, 3:32 p. m." The Salt Lake Tribune. December 6, 1933. p. 1, 6, 15.</ref>

The amendment was officially added to the U.S. Constitution on December 5, 1933, when Utah's state convention unanimously ratified the amendment.<ref name=proclamation/><ref name= timetable/><ref name= utah/>

The amendment was subsequently ratified by conventions in the following states: Template:Ordered list

The amendment was unanimously rejected by South Carolina's state convention on December 4, 1933.<ref>"State Goes Officially Against Dry Law Repeal". The State (Columbia, South Carolina). December 5, 1933. p. 1.</ref> On November 7, 1933, North Carolina held a vote, and approximately 70% of its voters rejected holding a convention to consider the amendment.<ref>"Surprise Vote Is Tallied". The Charlotte News (Charlotte, North Carolina). November 8, 1933. p. 1.</ref>

Implementation

State and local control

Mississippi was the last state to remain entirely dry. In August 1966, 19 of Mississippi's counties voted to legalize alcohol.Template:Efn<ref name= MS-Dry>"Pike, 3 Others to Remain 'Dry': 19 Counties Vote for Legal Liquor". Associated Press. Enterprise-Journal (McComb, Mississippi). August 3, 1966. p. 1.</ref><ref>Template:Cite web</ref> Kansas continued to prohibit public bars until 1987.<ref>Template:Cite web</ref> Many states now delegate the authority over alcohol granted to them by this Amendment to their municipalities or counties (or both).Template:Citation needed

Court rulings

Early rulings suggested that SectionTemplate:Nbsp2 enabled states to legislate with exceptionally broad constitutional powers. In State Board of Equalization v. Young's Market Co., the Supreme Court recognized that "Prior to the Twenty-first Amendment it would obviously have been unconstitutional"<ref>Template:Ussc.</ref> for a state to require a license and fee to import beer anywhere within its borders. First, the Court held that SectionTemplate:Nbsp2 abrogated the right to import intoxicating liquors free of a direct burden on interstate commerce, which otherwise would have been unconstitutional under the Commerce Clause before passage of the Twenty-first Amendment.<ref name=SBOE64>State Board of Equalization v. Young's Market Co., 299 U.S. at 64.</ref> In its second holding, the Court rejected an equal protection claim because "A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."<ref name=SBOE64/>

In Craig v. Boren (1976), the Supreme Court found that analysis under the Equal Protection Clause of the Fourteenth Amendment had not been affected by the passage of the Twenty-first Amendment. Although the Court did not specify whether the Twenty-first Amendment could provide an exception to any other constitutional protections outside of the Commerce Clause, it acknowledged "the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful".<ref>Template:Ussc.</ref> Likewise, it has been held that SectionTemplate:Nbsp2 of the Twenty-first Amendment does not affect the Supremacy Clause<ref>Template:Ussc.</ref> or the Establishment Clause.<ref>Template:Ussc.</ref> However, the Craig v. Boren Court did distinguish two characteristics of state laws permitted by the Amendment, which otherwise might have run afoul of the Constitution. The constitutional issues in each centered or touched upon: (1) "importation of intoxicants, a regulatory area where the State's authority under the Twenty-first Amendment is transparently clear";<ref>Craig, 429 U.S. at 207 (citing Hostetter v. Idlewild Bon Voyage Liquor Corp.377 U.S. 324, 330 and n.9 (1964))</ref> and (2) "purely economic matters that traditionally merit only the mildest review under the Fourteenth Amendment".<ref>Craig, 429 U.S. at 207 (citing Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 47–48 and 50–51 (1966); and Template:Ussc) (emphasis added).</ref> As to the Dormant Commerce Clause in particular, the Court clarified that, while not a pro tanto repeal, the Twenty-First Amendment nonetheless "primarily created an exception to the normal operation of the Commerce Clause".<ref>Craig, 429 U.S. at 206 (citing Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330 & 322 (1964); Template:Ussc; Template:Ussc; Template:Ussc; and Template:Ussc) (emphasis added).</ref>

In South Dakota v. Dole (1987), the Supreme Court upheld the withholding of some federal highway funds<ref>See 23 U.S.C. § 158(a)(1) (2009) ("The Secretary [of Transportation] shall withhold 10 per centum of the amount required to be apportioned to any State under [23 U.S.C. § 104(b)(1)–(2), (5)–(6)]Template:Nbsp... in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.").</ref> to South Dakota, because beer with an alcohol content below a specified percentage could be lawfully sold to adults under the age of 21 within the state.<ref>Craig, 429 U.S. at 205; accord Griffin v. Sebek, 90 S.D. 692, 703–704 (1976) ("SDCL 35-6-27 provides: 'No licensee under this chapter shall sell or give any low-point beer to any person who is less than eighteen years old or to any personTemplate:Nbsp... who is intoxicated at the time, or who is known to the seller to be an habitual drunkard.Template:'") (quoting S.D. Codified Laws §§ 35-6-27 & 35-4-78(2) (1975)) (Dunn, C.J., dissenting), overruled on other grounds, Walz v. Hudson, 327 N.W.2d 120 (S.D. 1982), superseded by statute, S.D. Codified Laws § 35-4-78 (2009).</ref> In a 7–2 majority opinion by Chief Justice Rehnquist, the Court held that the offer of benefits is not coercion that inappropriately invades state sovereignty.<ref>Craig, 429 U.S. at 211.</ref> The Twenty-first Amendment could not constitute an "independent constitutional bar" to the spending power granted to Congress under Article I, section 8, clause 1 of the Constitution.<ref>Craig, 429 U.S. at 209.</ref> Justice Brennan, author of the majority opinion in Craig v. Boren, provided a brief but notable dissent based solely on Section 2.<ref>Craig, 429 U.S. at 212 ("[R]egulation of the minimum age of purchasers of liquor falls squarely within the ambit of those powers reserved to the States by the Twenty-first Amendment. Since States possess this constitutional power, Congress cannot condition a federal grant in a manner that abridges this right. The Amendment, itself, strikes the proper balance between federal and state authority.") (Brennan, J., dissenting) (alteration added) (citation omitted)</ref> Justice O'Connor also dissented, arguing that "the regulation of the age of the purchasers of liquor, just as the regulation of the price at which liquor may be sold, falls squarely within the scope of those powers reserved to the States by the Twenty-first Amendment."<ref>Craig, 429 U.S. at 218 (O'Connor, J., dissenting) (citing Template:Ussc).</ref>

In 44 Liquormart, Inc. v. Rhode Island (1996), the Court held states cannot use the Twenty-first Amendment to abridge freedom of speech protections under the First Amendment.<ref>Template:Ussc.</ref> Rhode Island imposed a law that prohibited advertisements disclosing the retail prices of alcoholic beverages sold to the public. In declaring the law unconstitutional, the Court reiterated that "although the Twenty-first Amendment limits the effect of the Dormant Commerce Clause on a State's regulatory power over the delivery or use of intoxicating beverages within its borders, the Amendment does not license the States to ignore their obligations under other provisions of the Constitution".<ref>44 Liquormart, 517 U.S. at 516 (quoting Template:Ussc) (quotation omitted).</ref>

Most recently, however, Granholm v. Heald (2005) held that the Twenty-first Amendment does not overrule the Dormant Commerce Clause with respect to alcohol sales, and therefore states must treat in-state and out-of-state wineries equally. The Court criticized its earliest rulings on the issue, (including State Board of Equalization v. Young's Market Co.) and promulgated its most limited interpretation to date: Template:Quote

In a lengthy dissent, Justice Thomas argued that the plain meaning of SectionTemplate:Nbsp2 removed "any doubt regarding its broad scope, the Amendment simplified the language of the Webb–Kenyon Act and made it clear that States could regulate importation destined for in-state delivery free of negative Commerce Clause restraints".<ref>Granholm, 544 U.S. at 514 (Thomas, J., dissenting).</ref>

See also

• Alcoholic beverage control state
• List of alcohol laws of the United States by state
• List of dry communities by U.S. state
• Section 113 of the Constitution of Australia

External links

• CRS Annotated Constitution: Twenty first Amendment