Ratification of the Twenty-First Amendment

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The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

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.1 The requisite thirty-six state ratifying conventions approved the Twenty-First Amendment in less than a year.2 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.3 On December 5, 1933, Acting Secretary of State William Phillips certified that the Amendment had been adopted, thereby ending almost fourteen years of nationwide Prohibition.4

On the day of the Twenty-First Amendment’s ratification, President Franklin D. Roosevelt proclaimed the end of nationwide Prohibition.5 Noting 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.” 6 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.” 7

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.8 Exercising this authority, a few states banned or significantly restricted liquor traffic statewide until the mid-20th century.9 Nearly all of the states that permitted the sale of alcoholic beverages adopted a three-tier distribution system,10 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.11 State and local jurisdictions adopted a variety of laws and policies governing the licensing, taxation, availability, prices, and production of alcoholic beverages.12 Moreover, the federal government continued to regulate or tax activities involving alcoholic beverages, including aspects of beverage production, wholesale distribution, importation, labeling, and advertising.13

1: 76 Cong. Rec. 4516 (1933); U.S. Const. amend. XXI, § 3.
2: See Intro.3.5 Early Twentieth Century Amendments (Sixteenth Through Twenty-Second Amendments); Everett S. Brown, Ratification of the Twenty First Amendment to the Constitution of the United States: State Convention Records and Laws 5–9 (2003).
3: Brown, supra 2, at 5–9. Although many of the state ratifying conventions left limited records of their proceedings, at least some delegates indicated that one of the Twenty-First Amendment’s major purposes was to return the authority to regulate alcoholic beverages to the states. See, e.g., id. at 50 (statement of President Robinson of the Connecticut convention) ( “[F]undamentally our fight has been . . . for the return to the peoples of the several states of their constitutional right to govern themselves in their internal affairs.” ); id., at 174 (statement of Del. Simmons to the Kentucky convention) ( “The regulation of the sale of liquor is a state concern.” ).
4: See Twenty-First Amendment to the Constitution, 48 Stat. 1749, 1749–50 (1933). Prohibition took effect on January 17, 1920. The Twenty-First Amendment repealed the Eighteenth Amendment on December 5, 1933. See Intro.3.5 Early Twentieth Century Amendments (Sixteenth Through Twenty-Second Amendments).
5: Proclamation No. 2065, 48 Stat. 1720, 1721 (Dec. 5, 1933).
6: Id.
7: Id.
8: Daniel Okrent, Last Call: The Rise and Fall of Prohibition 374 (2010).
9: Id. Some “dry” counties in the United States continue to prohibit the liquor traffic.
10: Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 2 (U.S. June 26, 2019) (describing a three-tier distribution system as one in which “[p]roducers may sell only to licensed wholesalers; wholesalers may sell only to licensed retailers or other wholesalers; and only licensed retailers may sell to consumers” ). As one commentator has noted, “[t]he three-tier system generally prohibits a given tier from influencing licensees of another tier or performing the functions reserved to another tier.” 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, 440 (2022).
11: See Control State Directory and Info, Nat’l Alcohol Beverage Control Ass’n, >https://www.nabca.org/control-state-directory-and-info.
12: Jesse D.H. Snyder, Watering Down the Exceptionalism of the Twenty-First Amendment, 36 J. L. & Pol. 31, 59 (2021); John M. Faust, Of Saloons and Social Control: Assessing the Impact of State Liquor Control on Individual Expression, 80 Va. L. Rev. 745, 748 (1994).
13: See, e.g., 26 U.S.C. ch. 51 (imposing taxes on various activities related to distilled spirits, wines, and beer); Federal Alcohol Administration Act, 27 U.S.C. §§ 201–212 (requiring producers, importers, and wholesalers of alcoholic beverages to obtain federal permits, obey state law, and comply with federal regulations relating to beverage advertising and labeling). For more on the relationship between federal and state authority over alcoholic beverages after Prohibition, see Amdt21.S2.10 State and Federal Regulation of Alcohol Sales; Amdt21.S2.11 State and Federal Regulation of Minimum Drinking Age.