Overview of Twenty-First Amendment, Repeal of Prohibition

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The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

The Twenty-First Amendment repealed the Eighteenth Amendment, thereby ending the Constitution’s nationwide ban on the manufacture, sale, or transportation of “intoxicating liquors” for beverage purposes.1 Section 2 of the Twenty-First Amendment authorized the states to regulate or prohibit alcoholic beverages within their jurisdictions for legitimate, nonprotectionist purposes, such as health or safety.2 Much of the Supreme Court’s Twenty-First Amendment jurisprudence has addressed the scope of the states’ Section 2 powers.3

The Twenty-First Amendment’s proposal and ratification resulted from the United States’ problematic 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 led by state and local governments.4 Nationwide Prohibition quickly fell out of favor with the American public because of ineffective enforcement, harsh enforcement techniques, crime related to the illegal liquor traffic, a need for tax revenue during the Great Depression, and widespread defiance of the law.5 The Twenty-First Amendment’s framers sought to eliminate the Eighteenth Amendment’s inflexible and problematic nationwide ban on the liquor trade while recognizing the states’ authority to regulate or prohibit alcoholic beverages within their borders in keeping with local sentiment.6 However, it is unclear whether the Amendment’s framers 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.7

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distribution, and use of alcoholic beverages within their jurisdictions.8 The Court initially determined that Section 2 superseded some of the Constitution’s limits on state action, including the Dormant Commerce Clause doctrine, which prohibits states from discriminating against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.9 However, beginning later in the twentieth century, the Court embraced a much narrower view of the states’ Twenty-First Amendment powers.10 Viewing the Amendment as “one part of a unified constitutional scheme,” 11 the Court has held that Section 2 did not automatically override limits on state authority found in the Commerce Clause12 and other provisions of the Constitution,13 such as the First Amendment’s Establishment and Free Speech Clauses14 and the Fourteenth Amendment’s Due Process and Equal Protection Clauses.15

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.16 Generally, federal law may preempt conflicting state liquor laws when the federal government’s regulatory interests outweigh those asserted by the states.17

1: U.S. Const. amend. XXI, § 1. The Eighteenth Amendment had also forbidden importation of beverage liquor into the United States or its exportation therefrom. Id. amend. XVIII, § 1. This group of essays often refers to the Eighteenth Amendment’s nationwide ban on the liquor trade as “Prohibition.” For additional background and analysis of the Eighteenth Amendment, see Amdt18.1 Overview of Eighteenth Amendment, Prohibition of Liquor.
2: U.S. Const. amend. XXI, § 2 (providing that “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” ); Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 31–32 (U.S. June 26, 2019) ( “[Section 2] allows each State leeway to enact the measures that its citizens believe are appropriate to address the public health and safety effects of alcohol use and to serve other legitimate interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests.” ); Granholm v. Heald, 544 U.S. 460, 484–85 (2005). Legitimate reasons for states to regulate alcoholic beverages might include “promot[ing] temperance and responsible drinking,” “ensur[ing] an orderly marketplace,” preventing beverage producers’ “undue influence” over retailers, and “maintain[ing] oversight through reporting and taxation.” Daniel J. Croxall, Delirium of Disorder: Tension Between the Dormant Commerce Clause and the Twenty-First Amendment Stunts Independent Craft Brewery Growth, 126 Penn. St. L. Rev. 435, 447 n.87, 463 (2022).
3: See Amdt21.S1.1 Overview of Twenty-First Amendment, Repeal of Prohibition. The states also possess some authority to regulate alcoholic beverages through the exercise of their traditional police powers. See David S. Versfelt, The Effect of the Twenty-First Amendment on State Authority to Control Intoxicating Liquors, 75 Colum. L. Rev. 1578, 1578 (1975).
4: 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 20 (1931) ( “The Eighteenth Amendment represents the first effort in our history to [extend] directly by Constitutional provision the police control of the federal government to the personal habits and conduct of the individual.” ); Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 1, 2–4, 6–7 & n.8, 11–12 (2006).
5: See Nat’l Comm’n on Law Observance and Enf’t, supra 4, at 54; Post, supra 4, at 1–4, 11–12, 20; Daniel Okrent, Last Call: The Rise and Fall of Prohibition 206, 275–76, 361, 373 (2010).
6: See Amdt21.S1.2.4 Drafting 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. U.S. Const. amend. XXI, § 3. On December 5, 1933, Acting Secretary of State William Phillips certified that the Amendment had been adopted by the requisite number of state conventions, thereby ending almost 14 years of nationwide Prohibition. See Twenty-First Amendment to the Constitution, 48 Stat. 1749, 1749–50 (1933); Intro.3.5 Early Twentieth Century Amendments (Sixteenth Through Twenty-Second Amendments).
7: See Amdt21.S1.2.4 Drafting of the Twenty-First Amendment (discussing ambiguity in congressional debates over the scope of the states’ Section 2 powers).
8: See, e.g., Amdt21.S2.2 Overview of State Power over Alcohol and Discrimination Against Interstate Commerce.
9: See id. For more on the dormant aspects of Congress’s Commerce Clause power, see ArtI.S8.C3.1 Overview of Commerce Clause.
10: See, e.g., Amdt21.S2.2 Overview of State Power over Alcohol and Discrimination Against Interstate Commerce; Amdt21.S2.1 Scope of the States’ Section 2 Powers over Interstate and Foreign Commerce in Alcoholic Beverages.
11: Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 12 (U.S. June 26, 2019) (discussing the Supreme Court’s contextual approach to interpreting the Twenty-First Amendment).
12: In 2005, the Supreme Court confirmed that the Twenty-First Amendment does not authorize states to enact laws that discriminate in favor of local alcoholic beverage products. Such laws are invalid under the Commerce Clause unless the state “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alternatives.” Granholm v. Heald, 544 U.S. 460, 489 (2005) (citation and internal quotation marks omitted).
13: See Amdt21.S2.1 Scope of the States’ Section 2 Powers over Interstate and Foreign Commerce in Alcoholic Beverages.
14: U.S. Const. amend. I. The First Amendment applies to the states via the Fourteenth Amendment’s Due Process Clause. See Everson v. Bd. of Educ., 330 U.S. 1, 8 (1947) (incorporating the First Amendment’s Establishment Clause against the states); Gitlow v. New York, 268 U.S. 652, 666 (1925) (incorporating the First Amendment’s guarantees of freedom of speech and the press against the states). See also Larkin v. Grendel’s Den, 459 U.S. 116, 122 n.5 (1982); Amdt1.1 Overview of First Amendment, Fundamental Freedoms.
15: U.S. Const. amend. XIV, § 1. See also Craig v. Boren, 429 U.S. 190, 207–08 (1976); Amdt14.1 Overview of Fourteenth Amendment, Equal Protection and Rights of Citizens.
16: See generally U.S. Const. art. I, § 8, cl. 3. The federal government taxes and regulates various activities involving alcoholic beverages, including aspects of beverage production, wholesale distribution, importation, labeling, and advertising. See Amdt21.S2.10 State and Federal Regulation of Alcohol Sales.
17: See Amdt21.S2.10 State and Federal Regulation of Alcohol Sales.