Eighteenth Amendment

Section 1:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2:

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3:

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Despite its broad scope, the Eighteenth Amendment did not “prescribe any penalties, forfeitures, or mode of enforcement.” 1 Instead, it empowered Congress and the state legislatures to enact “appropriate legislation” to enforce Prohibition.2 At the time of the Amendment’s ratification, a majority of states had enacted laws prohibiting the liquor traffic within their jurisdictions.3 To enforce Prohibition nationwide and regulate beverage and non-beverage uses of alcohol, Congress enacted the National Prohibition Act or “Volstead Act” on October 28, 1919.4

The Volstead Act prohibited the production, sale, transportation, and possession of beverages that contained 0.5% or greater alcohol by volume—a stringent definition that encompassed beer and light wines in addition to distilled alcoholic beverages, such as whiskey or gin.5 Declaring every place where liquor was illegally manufactured, sold, or kept to be a “nuisance,” the Volstead Act established civil and criminal penalties, including property forfeiture, for violations of Prohibition.6 The Act also granted federal Prohibition agents the power to enforce its requirements throughout the United States.7

Despite imposing a stringent ban on the liquor traffic, the Volstead Act allowed the licensed manufacture, production, use, and sale of alcohol for certain purposes (e.g., medicinal or religious), subject to valid state or local restrictions.8 The Act did not specifically prohibit drinking, and it allowed the private possession and consumption of intoxicating beverages that had been legally acquired.9

Footnotes

1

Cunard S.S. Co. v. Mellon, 262 U.S. 100, 126 (1923).

2

U.S. Const. amend. XVIII, § 2.

3

Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48Wm. & Mary L. Rev. 1, 5 n.6 (2006).

4

Volstead Act, ch. 85, tit. II, § 3, 41 Stat. 305, 308–09 (1919) (effective Jan. 17, 1920), repealed by Liquor Law Repeal and Enforcement Act, ch. 740, tit. I, § 1, 49 Stat. 872, 872 (1935). See also Donnelley v. United States, 276 U.S. 505, 513–15 (1928) (describing the enforcement provisions of the Act). Representative Andrew John Volstead of Minnesota, chairman of the House Judiciary Committee, sponsored and promoted the Act.

5

Volstead Act § 3, 41 Stat. at 307–08. Congress enacted the Volstead Act over President Woodrow Wilson’s veto. See 58 Cong. Rec. 7610–11, 7633–34 (1919). Wilson apparently objected to the Volstead Act’s extension of wartime prohibition measures to cover the time period between the end of mobilization for World War I and the entry into force of the Eighteenth Amendment. See id.

6

Volstead Act §§ 3, 18, 21, 25–29, 41 Stat. at 314–16.

7

The Bureau of Internal Revenue initially exercised primary responsibility for the Volstead Act’s enforcement. Id. §§ 2, 28, 41 Stat. at 308, 316. In 1927, Congress reorganized the Treasury Department and created a separate component, the Bureau of Prohibition, to enforce the Act. See Treasury Department Reorganization Plan of 1927, Pub. L. No. 69-751, ch. 348, 44 Stat. 1381. Three years later, Congress moved the Bureau into the Department of Justice. See Prohibition Reorganization Act of 1930, Pub. L. No. 71-273, ch. 342, § 2(a), 46 Stat. 427.

8

Volstead Act §§ 3-7, 41 Stat. at 307–11 (1919); McCormick & Co. v. Brown, 286 U.S. 131, 133, 141, 143–45 (1932) (referencing the Tenth Amendment when upholding a West Virginia law that required nonresident companies to obtain state permits before shipping alcoholic “preparations” to West Virginia dealers, regardless of whether the nonresidents held federal permits authorizing shipment).

9

The Volstead Act allowed the private possession and consumption of alcoholic beverages that were obtained before the Act took effect. Volstead Act § 33, 41 Stat. at 317; Cunard S.S. Co. v. Mellon, 262 U.S. 100, 127 (1923) (noting that the exception applied when the liquor was “kept in the owner’s dwelling for use therein by him, his family, and his bona fide guests.” ); Corneli v. Moore, 257 U.S. 491, 497 (1922) (holding that even lawfully acquired alcoholic beverages could not be legally transported from a government bonded warehouse to a person’s home for personal use because the beverages were not under the individual’s possession when stored in the warehouse); Street v. Lincoln Safe Deposit Co., 254 U.S. 88, 94–95 (1920) (determining that individuals could legally transport liquor from a third-party warehouse to the individuals’ dwelling because the individuals had retained possession during storage). In 1930, the Supreme Court confirmed that the Volstead Act did not criminalize the purchase of alcohol. United States v. Farrar, 281 U.S. 624, 634 (1930).