The Repeal of Prohibition Amendment

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. The 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.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

—Paul J. Larkin

Introduction

The Twenty-First Amendment made the United States “wet” at the discretion of the states. What repeal did legally beyond that has been a matter of debate. Did Section 2 grant the states independent constitutional authority, exempt from (for instance) the Commerce Clause, to regulate the manufacture, transportation, sale, and possession of alcohol as they saw fit? Or did Section 1 merely repeal the Eighteenth Amendment while Section 2 left the states subject to the restraints elsewhere imposed by the Constitution? Over the past eighty years, the U.S. Supreme Court has changed its position as to how these questions should be answered.

The Repeal of Prohibition

The Eighteenth Amendment granted the federal and state governments a “concurrent” enforcement power to regulate alcohol. Section 1 of the Twenty-First Amendment expressly repealed the federal government’s power to regulate alcohol, but Section 2 retained the state’s enforcement power: “The transportation or importation into any State,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.” Here, “the laws thereof” refers to state laws. Therefore, the violation of state liquor laws actually violates the federal Constitution.¹

The Twenty-First Amendment and the Commerce Clause

As written, the Commerce Clause affirmatively empowers Congress to regulate interstate commerce and does not disable the states from doing likewise.² Nonetheless, the Supreme Court has interpreted the clause to contain an implicit “negative command” as well.³ Under the so-called Dormant Commerce Clause, states are disempowered from discriminating against or unduly burdening interstate commerce absent express congressional permission.⁴ This doctrine rests on the premise that the Framers adopted the Commerce Clause “to avoid the tendencies toward economic Balkanization that had plagued relations among the Colonies and later among the States under the Articles of Confederation.”⁵

A few years after the Prohibition repeal amendment took effect, the Supreme Court had to decide whether the Commerce Clause limited a state’s Twenty-First Amendment authority to regulate liquor. In a series of opinions by Justice Louis D. Brandeis,⁶ the Court held that a state’s greater power to ban alcohol altogether included the lesser power to allow alcohol to be sold under whatever conditions a state saw fit, even if they would otherwise violate the Commerce Clause.⁷ Thus, the Court’s case law allowed states to discriminate against liquor produced out of state.⁸ The effect of these early cases was to treat the Twenty-First Amendment as an exception to the Commerce Clause.9 These cases, which came on the heels of Prohibition’s repeal, paid little or no attention to the repeal amendment’s provenance. Perhaps the justices were intimately familiar with the events of that era.

The tide shifted in Hostetter v. Idlewild Bon Voyage Co. (1964), which held that New York could not prohibit the sale of alcohol to international travelers leaving from a state airport.⁹ Without affirmatively overruling the 1930s-era precedents, the Court rejected the notion that the Twenty-First Amendment had repealed the Commerce Clause for alcohol regulations.¹⁰ Another case decided on the same day, Department of Revenue v. James B. Beam Distilling Co. (1964), held that a state cannot tax the importation of alcohol under the Twenty-First Amendment because the Export-Import Clause of Article I expressly prohibits any such tax absent express congressional approval.¹¹ Other cases from the 1980s found various state regulations and taxes on out-of-state alcohol to be unconstitutional.¹² Finally, Granholm v. Heald (2005) formally overruled the 1930s precedents.¹³

In 2019, after reviewing all of its decisions, the Court concluded that the Twenty-First Amendment is but “one part of a unified constitutional scheme” and does not erase any and all constitutional limitations on a state’s authority to regulate alcohol.¹⁴ A contrary ruling, the Court held, would generate “absurd results that the provision could not have been meant to produce.”¹⁵ Accordingly, a state cannot justify otherwise invalid alcohol regulations on the ground that the repeal amendment erases any and all federal constitutional restraints on that subject.

The Twenty-First Amendment and Individual Rights

Alcohol does not sell itself, and the states have regulated that business ever since the Twenty-First Amendment took effect.¹⁶ The question arose whether that amendment gave the states an additional, federally based power to regulate the alcohol industry atop the states’ police power.¹⁷ Specifically, did the Twenty-First Amendment give the states greater authority to regulate individual rights, such as the First Amendment? Here, too, the Court has done an about-face in its view of the effect of the Repeal Amendment.

Initially, the Court treated that provision as an independent source of regulatory authority. In California v. LaRue (1972), the state restricted nude dancing by employees of establishments licensed to serve alcohol.¹⁸ The Court held that the state’s Twenty-First Amendment power to regulate alcohol justified restrictions on what might otherwise be considered free expression. The Court also expressly rejected the claim that the state’s regulations violated the Free Speech Clause, relying in part on “the added presumption” of constitutionality “that the Twenty-first Amendment requires.”¹⁹ This rule, however, would not last.

Over time, the Court has recognized that the Repeal Amendment did not override every other constitutional provision. State alcohol regulations must comply with the Free Speech Clause,²⁰ the Establishment Clause,²¹ the Due Process Clause,²² the Equal Protection Clause,²³ and the federal spending power.²⁴ Tennessee Wine & Spirits Retailers Association v. Thomas (2019) reaffirmed that line of cases.²⁵ There is no indication that the Court will walk back the current case law. Accordingly, the Court’s 1930s-era precedents interpreting the Repeal Amendment have passed into the same history that holds the Prohibition Amendment.

Open Questions

• What is the original public meaning of the language used in Section 2 of the Twenty-First Amendment? Does it serve as an implicit exception to other limitations of state power?
• What is the original intent of Section 2? Did Congress intend to allow the states to discriminate against interstate commerce? The Supreme Court has suggested that the answer is “no.”²⁶

1. Josh Blackman & Seth Barrett Tillman, The Unresolved Threshold Issues in the Emoluments Clauses Litigation: The President Has Three Bodies and There Is No Cause of Action for Ultra Vires Conduct, 20 Geo. J.L. of Law & Pub. Pol’y 163, 195–96 (2022). ↩︎
2. Art. I, § 8, cl. 3. ↩︎
3. Okla. Tax Comm’n v. Jefferson Lines, Inc., 514 U.S. 175, 179 (1995). ↩︎
4. Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 209 (1824). ↩︎
5. Hughes v. Oklahoma, 441 U.S. 322, 325–26 (1979); Md. Compt. of the Treasury v. Wynne, 575 U.S. 542, 548–50 (2015). ↩︎
6. Calif. St. Bd. of Equalization v. Youngs Market Co., 299 U.S. 59 (1936); Indianapolis Brewing Co. v. Mich. Liquor Control Comm’n, 305 U.S. 391 (1939); Joseph S. Finch & Co. v. McKittrick, 305 U.S. 395 (1939); Mahoney v. Joseph Triner Corp., 304 U.S. 401, 404 (1938). ↩︎
7. Ziffrin, Inc. v. Reeves, 308 U.S. 132, 138 (1939); Youngs Market, 299 U.S. at 63. ↩︎
8. Indianapolis Brewing Co., 305 U.S. at 394. ↩︎
9. 377 U.S. 324, 329–33 (1964). ↩︎
10. Id. at 331–32. ↩︎
11. Art. I, § 10, cl. 2; 377 U.S. 341, 345–46 (1964). ↩︎
12. Healy v. Beer Inst., Inc., 491 U.S. 324, 341–43 (1989); Bacchus, Brown-Forman Distillers Corp. v. N.Y. St. Liquor Auth., 476 U.S. 573, 584–85 (1986); Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274–76 (1984). ↩︎
13. 544 U.S. 460 (2005). ↩︎
14. Tenn. Wine & Spirits Retailers Ass’n. v. Thomas, 588 U.S. 504, 2462 (2019). ↩︎
15. Id. at 518–20. ↩︎
16. Clark Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp. Prob. 544 (1940). ↩︎
17. Barbier v. Connolly, 113 U.S. 27, 31 (1884). ↩︎
18. 409 U.S. 109, 113–19 (1972). ↩︎
19. Id. at 118–19. ↩︎
20. 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996); Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 711–16 (1984). ↩︎
21. Larkin v. Grendel’s Den, Inc., 459 U.S. 116 (1982). ↩︎
22. Wisconsin v. Constantineau, 400 U.S. 433 (1971). ↩︎
23. Craig v. Boren, 429 U.S. 190 (1976). ↩︎
24. South Dakota v. Dole, 483 U.S. 203 (1987). ↩︎
25. 588 U.S. at 529–537. ↩︎
26. Id. at 529 & n.14 (citing Aaron Nielson, No More “Cherry-Picking”: The Real History of the 21st Amendment’s § 2, 28 Harv. J.L. & Pub. Pol’y 281 (2004)). ↩︎