Drafting of the Twenty-First Amendment

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The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

The November 1932 elections resulted in victories for many candidates who supported the Eighteenth Amendment’s repeal, including President-elect Franklin D. Roosevelt.1 Shortly after the elections, the lame-duck 72nd Congress renewed its efforts to end nationwide Prohibition.2 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.3

As originally introduced in the Senate, the Blaine resolution did not clearly repeal the Eighteenth Amendment.4 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.5 During a January 1933 markup session, the Senate Judiciary Committee significantly revised the resolution.6 The revised resolution, which the committee reported favorably, specifically repealed the Eighteenth Amendment and protected dry states from illegal liquor imports.7

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.8 Responding to such objections, Senator Blaine, the resolution’s floor manager, noted that, during the 1932 elections, both major political parties had supported Congress’s submission of an amendment to the states revising or repealing Prohibition.9 Describing the Eighteenth Amendment as an “inflexible police regulation which might be appropriate in a municipal ordinance,” 10 Senator Blaine offered his interpretations of the draft Twenty-First Amendment’s provisions.11

Section 1 of the draft Twenty-First Amendment, which repealed the Eighteenth Amendment, did not require much explanation.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.12 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.13 Noting that the Supreme Court’s pre-Prohibition Era Commerce Clause jurisprudence had limited the states’ power over liquor imports,14 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.” 15 Several other Members of Congress echoed Sen. 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.16 Nonetheless, a few remarks of Blaine and other Senators suggest Congress may have intended to grant the states even broader authority over alcoholic beverages.17

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.18 At the time of its proposal, many politicians believed that only state ratifying conventions should approve constitutional amendments governing individual rights and morals.19 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.20 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.21

On February 16, 1933, the Senate agreed to the joint resolution, as amended, by a vote of 63-23.22 Four days later, after a short debate, the House passed the joint resolution under suspension of the rules by a vote of 289-121.23 With the House’s approval, the Twenty-First Amendment was submitted to the states on February 20, 1933.24 In anticipation of the Eighteenth Amendment’s repeal, on March 22, 1933, Congress enacted the Cullen-Harrison Act.25 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, 1933.26

1: See Senate Stories: Beer by Christmas, U.S. Senate, https://www.senate.gov/artandhistory/senate-stories/beer-by-christmas.htm.
2: Id. Because the Twentieth Amendment, which prescribes the date on which the terms of Senators and Representatives end, did not become effective until October 15, 1933, the 72nd Congress ended in March 1933. Beginning with the 73rd Congress, the terms of Representatives and Senators ended on January 3 after an election year. U.S. Const. amend. XX, § 1; Intro.3.5 Early Twentieth Century Amendments (Sixteenth Through Twenty-Second Amendments).
3: S.J. Res. 211, 72d Cong., 2d Sess. (1932); 76 Cong. Rec. 64–65 (1932). On December 5, 1932, a joint resolution to repeal the Eighteenth Amendment was introduced in the House. H.J. Res. 480, 72d Cong., 2d Sess. (1932). On December 5, 1932, the House narrowly rejected the resolution. 76 Cong. Rec. 12–13 (1932). During debate over the resolution, some House Members suggested that they would vote against the measure on procedural grounds because it had been offered under suspension of the rules with no amendments allowed and minimal time allotted for debate. Id. at 8–9. Since the beginning of Prohibition, a number of resolutions that would have repealed or revised the Eighteenth Amendment were introduced in the House and Senate. See, e.g., S. Doc. No. 163, at 1–3, 24–27, 87th Cong., 2d Sess. (1963) (listing joint resolutions proposing amendments to the Constitution that had been introduced in various Congresses).
4: S.J. Res. 211, 72d Cong., 2d Sess. (1932).
5: Id. (prohibiting Congress from exercising its commerce power to allow liquor imports into “dry states” ).
6: See S. Rep. No. 72-1022, at 1 (1933).
7: 76 Cong. Rec. 4138–39 (1933) (reproducing the text of S.J. Res. 211 as reported by the Senate Judiciary Committee). The revised joint resolution imposed a ratification deadline of seven years. Id. Initially, Section 3 of the revised joint resolution granted Congress “concurrent power” to “regulate or prohibit the sale of intoxicating liquors” for consumption on premises (e.g., restaurants or bars)—a provision intended to prohibit the return of the licensed saloon. See id. at 4138–39, 4141. The Senate agreed to an amendment removing Section 3 after some Senators suggested it would defeat the purpose of repealing Prohibition by granting the federal government a general police power to impose on the states a “single standard of conduct . . . without regard to local sentiment and local habits.” Id. at 4145–46, 4178–79.
8: See, e.g., id. at 4216 (statement of Sen. Robinson); id. at 4219–20 (statement of Sen. Glass).
9: Id. at 4139–40.
10: Id. at 4143.
11: Id. at 4139–41.
12: Section 2, which was ratified as part of the Twenty-First 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.”
13: See 76 Cong. Rec. 4141 (1933). Since the Founding, the states had possessed broad authority to regulate or prohibit the manufacture and sale of alcoholic beverages within their borders. See Mugler v. Kansas, 123 U.S. 623, 659 (1887). Early American laws regulating establishments that served alcoholic beverages established licensing requirements, closing times, “limitations on the volume of liquor served,” and imposed fines for excessive drinking on patrons and businesses. Indomitable Spirits: Prohibition in the United States: Saloons, Digital Pub. Libr. of Am., >https://dp.la/exhibitions/spirits/early-alcohol-consumption/saloons; Clark Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp. Probs. 544, 544–47, 552 (1940) (surveying the history of early American legislation regulating the retail sale of alcoholic beverages, including licensing, regulatory, and taxation provisions that applied to taverns); Nat’l Comm’n on Law Observance and Enf’t, Enforcement of the Prohibition Laws of the United States, H.R. Doc. No. 71-722, at 3 (1931) (describing “systems of restriction, through taxation and excise, closing hours, prohibition of selling to certain types of person, high license, local option, state dispensaries, state prohibition, and finally national prohibition” ).
14: See 76 Cong. Rec. 4141 (1933). During the late 1800s, the Supreme Court held that the Commerce Clause prevented the states from banning the importation or initial sale of out-of-state beverages that remained in their original packages. See Bowman v. Chi. & Nw. Ry. Co., 125 U.S. 465, 498 (1888); Leisy v. Hardin, 135 U.S. 100, 122–23 (1890). The Court decided that, absent contrary federal law, such state bans impermissibly burdened interstate commerce. See sources cited supra. In response to concerns that various Supreme Court decisions would prevent “dry” states from enforcing their prohibition laws fully, Congress enacted the Webb-Kenyon Act and other federal laws that specifically subjected imported alcoholic beverages to state regulation. For a discussion of these federal laws and the Court’s earlier temperance-law jurisprudence, see Granholm v. Heald, 544 U.S. 460, 476–482 (2005); and Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 12–20 (U.S. June 26, 2019). See also Amdt18.3 Early Federal and State Prohibition Laws.
15: See 76 Cong. Rec. 4141 (1933).
16: Id. at 4170–71. See also Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 21 (U.S. June 26, 2019) (citing 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah) (arguing that Section 2 of the Twenty-First Amendment would “incorporat[e] [the Webb-Kenyon Act] permanently in the Constitution of the United States” ); id. at 4168 (statement of Sen. Fess) ( “[T]he second section of the joint resolution . . . is designed to permit the Federal authority to assist the States that want to be dry to remain dry.” ); id. at 4518 (statement of Rep. Robinson) ( “Section 2 attempts to protect dry states.” )).
17: During the debates, Senator Blaine stated that Section 2 was intended “to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States.” 76 Cong. Rec. 4143 (1933). See also id. at 4225 (statement of Sen. Swanson) ( “[I]t is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported.” ). It is unclear whether these brief remarks accurately reflected the views of Senator Blaine or other proponents of the Twenty-First Amendment. The Supreme Court later wrote that the apparently incompatible statements of Senator Blaine demonstrated the “obscurity” of the intended scope of the states’ authority under Section 2. See, e.g., Bacchus Imps. v. Dias, 468 U.S. 263, 274–75 (1984). Nonetheless, early in the twenty-first century, the Court emphasized that the Twenty-First Amendment’s framers did not intend to allow states to discriminate against imported liquor in favor of domestically produced liquor. See, e.g., Tenn. Wine & Spirits Retailers Ass’n, slip op. at 21.
18: 76 Cong. Rec. 4169–70 (1933).
19: Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws 3 (2003).
20: Robert P. George & David A. J. Richards, The Twenty-First Amendment, Nat’l Const. Ctr., >https://constitutioncenter.org/the-constitution/amendments/amendment-xxi/interpretations/151 ( “[P]olitical prudence pointed in the direction of ratifying conventions as a way of leaving gun-shy legislators with their eyes on re-election out of the process and ‘off the hook.’” ).
21: See id.; Letter from the Women’s Committee for Repeal of the 18th Amendment to the United States Congress Regarding the Repeal of Prohibition (Jan. 25, 1930), >https://www.docsteach.org/documents/document/letter-from-womens-committee-for-repeal-of-the-18th-amendment-to-the-united-states-congress-regarding-the-repeal-of-prohibition (advocating for submission of a repeal amendment to state ratifying conventions and noting that delegates would not be “running for a political office” and would therefore have “no political axe to grind” ); Daniel Okrent, Last Call: The Rise and Fall of Prohibition 352 (2010) (stating that Congress’s submission of the Twenty-First Amendment to state ratifying conventions was “mindful of the complications of legislative schedules and the continued domination of state legislatures by rural minorities” ).
22: 76 Cong. Rec. 4231 (1933).
23: Id. at 4508–16. During the House debates, proponents of the draft Twenty-First Amendment argued that repealing the Eighteenth Amendment would increase government tax revenues, respect each state’s authority to determine how to regulate liquor, and end the illicit liquor traffic. E.g., id. at 4513–14 (statements of Reps. Dyer and LaGuardia). Opponents argued that the Eighteenth Amendment’s repeal would lead to the return of the licensed saloon and its attendant societal problems. E.g., id. at 4511 (statement of Rep. Christopherson).
24: Id. at 4516.
25: Cullen-Harrison Act, Pub. L. No. 73-3, §§ 1-10, 48 Stat. 16, 16–20 (1933).
26: Id. See also Daniel Okrent, Last Call: The Rise and Fall of Prohibition 352 (2010).