Twenty-first Amendment to the United States Constitution

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Amendment XXI in the National Archives

The Twenty-first Amendment (Amendment XXI) to the United States Constitution repealed the Eighteenth Amendment to the United States Constitution, which had mandated nationwide Prohibition on alcohol on January 16, 1919. The Twenty-first Amendment was ratified on December 5, 1933[1]. It is unique among the 27 amendments of the U.S. Constitution for being the only one to repeal a prior amendment and to have been ratified by state ratifying conventions.

Text

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 The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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

Background

The Eighteenth Amendment to the Constitution had ushered in a period known as Prohibition, during which the manufacture, distribution, and sale of alcoholic beverages was illegal. Passage of the Eighteenth Amendment in 1919 was the crowning achievement of the temperance movement, but it soon proved highly unpopular. Crime rates soared under Prohibition as gangsters, such as Chicago's Al Capone, became rich from a profitable, often violent black market for alcohol. The federal government was incapable of stemming the tide: enforcement of the Volstead Act proved to be a nearly impossible task and corruption was rife among law enforcement agencies.[2] In 1932, wealthy industrialist John D. Rockefeller, Jr. stated in a letter:

When Prohibition was introduced, I hoped that it would be widely supported by public opinion and the day would soon come when the evil effects of alcohol would be recognized. I have slowly and reluctantly come to believe that this has not been the result. Instead, drinking has generally increased; the speakeasy has replaced the saloon; a vast army of lawbreakers has appeared; many of our best citizens have openly ignored Prohibition; respect for the law has been greatly lessened; and crime has increased to a level never seen before.[3]

As more and more Americans opposed the Eighteenth Amendment, a political movement grew for its repeal. However, repeal was complicated by grassroots politics. Although the U.S. Constitution provides two methods for ratifying constitutional amendments, only one method had been used up until that time; and that was for ratification by the state legislatures of three-fourths of the states. However, the wisdom of the day was that the lawmakers of many states were either beholden to or simply fearful of the temperance lobby. For that reason, when Congress formally proposed the repeal of Prohibition on February 20, 1933 (with the requisite two-thirds having voted in favor in each house; 63 to 21 in the United States Senate and 289 to 121 in the United States House of Representatives), it chose the second ratification method established by Article V, that being via state conventions. The Twenty-first Amendment is the only constitutional amendment ratified by state conventions rather than by the state legislatures.

The 18th amendment really did more harm than good because of all of its loopholes. Most of them were from the Volstead Act which was inside the 18th amendment. The biggest issue was that it didn’t actually mention the consumption of alcohol, just the prohibition of purchasing it. The Volstead Act was “An act to prohibit intoxicating beverages, and to regulate the manufacture, production, use, and sale of high-proof spirits for other than beverage purposes, and to insure an ample supply of alcohol and promote its use in scientific research and in the development of fuel, dye, and other lawful industries.” So, a year after ratification it was enforced – however, since consumption was technically legal, people could hoard alcohol and drink it legally. Another huge loophole was that doctors could prescribe alcohol medically, which in turn raised sales of medical alcohol 400% during the prohibition. Another detail of the amendment was that the “intoxicating substance” had to be over .5% alcohol, which was another grey area to enforce. To make matters worse, alcohol could be easily made off the streets instead of just smuggled. It was very popular for farmers to ferment fruits to get alcoholic beverages. Prohibition barely made people even drink less because alcohol was so easy to get. Ironically, while the 18th amendment was put in place to protect people from health risks from a high blood alcohol level, drinking the tainted liquor made in the streets actually killed an average of 1000 Americans per year during prohibition.  Due to the issues of the 18th amendment, the country went in the opposite direction of what congress intended and alcohol ended up hurting the country more when it was legalized. If the loopholes in the Volstead Act weren’t enough, The Great Depression only sped up the complications. The ban of alcohol denied jobs to the unemployed when America greatly needed revenue. There was even a nonpartisan group, the Americans Against Prohibition Association that made matters even worse. Franklin D Roosevelt ran for president under repealing the amendment which is one of the things that led him to become president. The 18th Amendment is among the least popular of all amendments in US history and is the only constitutional amendment ever to be repealed.

Proposal and ratification

The Congress proposed the Twenty-first Amendment on February 20, 1933.[4]

The proposed amendment was adopted on December 5, 1933. It is the only amendment to have been ratified by state ratifying conventions, specially selected for the purpose.[5]All other amendments have been ratified by state legislatures. It is also the only amendment that was approved for the explicit purpose of repealing a previously existing amendment to the Constitution. The Twenty-first Amendment ending national prohibition became officially effective on December 15, though people started drinking openly before that date.[6]

The various responses of the 48 states is as follows:

The following states ratified the amendment:

  1. Michigan (April 10, 1933)
  2. Wisconsin (April 25, 1933)
  3. Rhode Island (May 8, 1933)
  4. Wyoming (May 25, 1933)
  5. New Jersey (June 1, 1933)
  6. Delaware (June 24, 1933)
  7. Indiana (June 26, 1933)
  8. Massachusetts (June 26, 1933)[7]
  9. New York (June 27, 1933)
  10. Illinois (July 10, 1933)
  11. Iowa (July 10, 1933)
  12. Connecticut (July 11, 1933)
  13. New Hampshire (July 11, 1933)
  14. California (July 24, 1933)
  15. West Virginia (July 25, 1933)
  16. Arkansas (August 1, 1933)
  17. Oregon (August 7, 1933)
  18. Alabama (August 8, 1933)
  19. Tennessee (August 11, 1933)
  20. Missouri (August 29, 1933)
  21. Arizona (September 5, 1933)
  22. Nevada (September 5, 1933)
  23. Vermont (September 23, 1933)
  24. Colorado (September 26, 1933)
  25. Washington (October 3, 1933)
  26. Minnesota (October 10, 1933)
  27. Idaho (October 17, 1933)
  28. Maryland (October 18, 1933)
  29. Virginia (October 25, 1933)
  30. New Mexico (November 2, 1933)
  31. Florida (November 14, 1933)
  32. Texas (November 24, 1933)
  33. Kentucky (November 27, 1933)
  34. Ohio (December 5, 1933)
  35. Pennsylvania (December 5, 1933)
  36. Utah (December 5, 1933)

Ratification was completed on December 5, 1933.

The amendment was subsequently ratified by conventions in the following states:

  1. Maine (December 6, 1933)
  2. Montana (August 6, 1934)

The amendment was rejected by the following state:

  • South Carolina (December 4, 1933)

Voters in the following state rejected holding a convention to consider the amendment:

  • North Carolina (November 7, 1933)

The following states took no action to consider the amendment:

  • Georgia
  • Kansas
  • Louisiana
  • Mississippi
  • Nebraska
  • North Dakota
  • Oklahoma
  • South Dakota

Implementation

After more than ten years of the country going dry, on December 6, 1932, Senator John Blaine of Wisconsin submitted a resolution onto the floor of the Senate to submit the 21st amendment to the states for ratification, which followed in February 1933. That very same year, the 36th state, which was the last necessary one needed, Utah, ratified the 21stamendment at on December 5th, at which point President Franklin Delano Roosevelt on the same day, signed the amendment and ended the American experiment in prohibition. Congress decided to opt for the other ratification method specified in Article V of the Constitution: state ratifying conventions. These conventions were not popular referendums, but rather, were decisions made by a group of individuals chosen from the public at large, and thus nearly all average citizens.  Congress believed that these conventions would be subject to less influence from the temperance lobby than state legislatures which proved to be true. State’s having the right to control the distribution of tobacco and alcohol is still present today. America was extremely happy that they got their freedom back. As far as the effects of the 21’st amendment go, there were several positive ones. Crime was reduced by a large amount. Drinkers were seen as criminals in the eyes of the Constitution, so whenever the 21’st was ratified, it made them law abiding citizens. This freed up police resources so they could focus on actual crimes which made the overall crime rate plummet. As with regular crime, organized crime became a thing of the past. These large operations from gangs to distribute alcohol in the black market were no longer necessary. This made the streets less violent, making the safety of the everyday person increase. The economy was also drastically improved after the 21st amendment. When people were getting alcohol illegally they didn’t have to pay taxes on it, pulling money away from the government. This couldn’t have come at a better time than 1933 because America was in the middle of the great depression and money was needed then more than ever. Another great positive to the implementation of the 21st amendment was that it gave people back their personal choice. While alcohol may not be the most healthy choice, it’s no business of a third party to tell adults what to put into their body. The 18th amendment oppressed people while the 21st put decision making back into the hands of the citizens. A big take away from the 21st amendment is the idea that making something illegal legal has a positive outcome. The rationale behind the success of the 21st amendment is used today when discussing the legalization of narcotic drugs, for example. While both narcotic drugs and alcohol have a negative impact on the human body, it could be inferred that making those drugs legal would have the same crime, economic, and social benefits that the legalization of alcohol had in the 30’s. While the issues with their banning aren’t as extreme as with the alcohol, perhaps these ideas will lead to a more liberal enforcement of illegal substances in the future.

State and local control

The second section bans the importation of alcohol in violation of state or territorial law. This has been interpreted to give states essentially absolute control over alcoholic beverages, and many U.S. states still remained "dry" (with state prohibition of alcohol) long after its ratification. Mississippi was the last, remaining dry until 1966;[8] Kansas continued to prohibit public bars until 1987.[9] Many states now delegate the authority over alcohol granted to them by this Amendment to their municipalities or counties (or both), which has led to many lawsuits over First Amendment rights when local governments have tried to revoke liquor licenses.

Court rulings

Section 2 has been the source of every Supreme Court ruling directly addressing Twenty-first Amendment issues.

Early rulings suggested that Section 2 enabled states to legislate with exceptionally broad constitutional powers. In State Board of Equalization v. Young's Market Co., 299 U.S. 59 (1936), the Supreme Court recognized that "Prior to the Twenty-first Amendment it would obviously have been unconstitutional"[10] for a state to require a license and fee to import beer anywhere within its borders. First, the Court held that Section 2 abrogated the right to import intoxicating liquors free of a direct burden on interstate commerce, which otherwise would have been unconstitutional under the Commerce Clause before passage of the Twenty-first Amendment.[11] In its second holding, the Court rejected an equal protection claim because "A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."[12] Over time, the Court has significantly curtailed this initial interpretation.

In Craig v. Boren (1976), the Supreme Court found that analysis under the Equal Protection Clause of the Fourteenth Amendment had not been affected by the passage of the Twenty-first Amendment. Although the Court did not specify whether the Twenty-first Amendment could provide an exception to any other constitutional protections outside of the Commerce Clause, it acknowledged "the relevance of the Twenty-first Amendment to other constitutional provisions becomes increasingly doubtful".[13] Likewise, it has been held that Section 2 of the Twenty-first Amendment does not affect the Supremacy Clause[14] or the Establishment Clause.[15] However, the Craig v. Boren Court did distinguish two characteristics of state laws permitted by the Amendment, which otherwise might have run afoul of the Constitution. The constitutional issues in each centered or touched upon:(1) "importation of intoxicants, a regulatory area where the State's authority under the Twenty-first Amendment is transparently clear";[16] and (2) "purely economic matters that traditionally merit only the mildest review under the Fourteenth Amendment".[17] As to the Dormant Commerce Clause in particular, the Court clarified that, while not a pro tanto repeal, the Twenty-First Amendment nonetheless "primarily created an exception to the normal operation of the Commerce Clause".[18]

In South Dakota v. Dole (1987), the Supreme Court upheld the withholding of some federal highway funds[19] to South Dakota, because beer with an alcohol content below a specified percentage could be lawfully sold to adults under the age of 21 within the state.[20] In a 7–2 majority opinion by Chief Justice Rehnquist, the Court held that the offer of benefits is not coercion that inappropriately invades state sovereignty.[21] The Twenty-first Amendment could not constitute an "independent constitutional bar" to the spending power granted to Congress under Article I, section 8, clause 1 of the Constitution.[22] Justice Brennan, author of the majority opinion in Craig v. Boren, provided a brief but notable dissent based solely on Section 2.[23] Justice O'Connor also dissented, arguing that "the regulation of the age of the purchasers of liquor, just as the regulation of the price at which liquor may be sold, falls squarely within the scope of those powers reserved to the States by the Twenty-first Amendment."[24]

In 44 Liquormart, Inc. v. Rhode Island (1996), the Court held states cannot use the Twenty-first Amendment to abridge freedom of speech protections under the First Amendment.[25] Rhode Island imposed a law that prohibited advertisements that disclosed the retail prices of alcoholic beverages sold to the public. In declaring the law unconstitutional, the Court reiterated that "although the Twenty-first Amendment limits the effect of the Dormant Commerce Clause on a State's regulatory power over the delivery or use of intoxicating beverages within its borders, the Amendment does not license the States to ignore their obligations under other provisions of the Constitution".[26]

Most recently, however, Granholm v. Heald (2005) held that the Twenty-first Amendment does not overrule the Dormant Commerce Clause with respect to alcohol sales, and therefore states must treat in-state and out-of-state wineries equally. The Court criticized its earliest rulings on the issue, (including State Board of Equalization v. Young's Market Co.) and promulgated its most limited interpretation to date:

The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.[27]

In a lengthy dissent, Justice Thomas argued that the plain meaning of Section 2 removed "any doubt regarding its broad scope, the Amendment simplified the language of the Webb-Kenyon Act and made it clear that States could regulate importation destined for in-state delivery free of negative Commerce Clause restraints".[28] In his historical account, Justice Thomas argued the early precedent provided by State Board of Equalization v. Young's Market Co. was indeed correct, and furthered the original intent of the Twenty-first Amendment to provide a constitutional guarantee authorizing state regulation that might conflict with the Dormant Commerce Clause (similar to the Webb–Kenyon Act).

See also

References

  1. ^ Roosevelt, Franklin (December 5, 1933), Proclamation 2065 - Repeal of the Eighteenth Amendment 
  2. ^ Mark Thornton, The Economics of Prohibition, Salt Lake City: University of Utah Press, 1991.
  3. ^ Letter on Prohibition - see Daniel Okrent, Great Fortune: The Epic of Rockefeller Center, New York: Viking Press, 2003. (pp.246/7).
  4. ^ Mount, Steve (January 2007). "Ratification of Constitutional Amendments". Retrieved February 24, 2007. 
  5. ^ "Citizen or Subject?". Retrieved August 24, 2010.  "An Overlooked Reconsideration of a Fundamental Question in U.S. Constitutional Law." Gilder, Eric and Hagger, Mervyn. British and American Studies (University of the West, Timisoara) 13 (2007): 163-74.
  6. ^ Universal Newspaper Newsreel from late 1933
  7. ^ Everett Somerville Brown, ed. (1938), Ratification of the Twenty-first Amendment to the Constitution of the United States: State Convention Records and Laws, Ann Arbor, Michigan: University of Michigan Press, p. 209. 
  8. ^ "Something to celebrate: Repeal of Prohibition". Msbrew.com. 2007-12-06. Retrieved 2011-12-19. 
  9. ^ "Restrictions still rule Kansas industry". Findarticles.com. Archived from the original on 2012-07-11. Retrieved 2011-12-19. 
  10. ^ 299 U.S. 59, 62(1936)
  11. ^ 299 U.S. 59, 64(1936)
  12. ^ 299 U.S. 59, 64 (1936)
  13. ^ 429 U.S. 190, 206 (1976)
  14. ^ California Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 U.S. 97, 112-114 (1980)
  15. ^ Larkin v. Grendel's Den, Inc., 459 U.S. 116, 122, n. 5 (1982)
  16. ^ 429 U.S. 190, 207 (1976) (citing Hostetter v. Idlewild Bon Voyage Liquor Corp.377 U.S. 324, 330 and n.9 (1964))
  17. ^ 429 U.S. 190, 207 (1976) (citing Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35, 47-48 and 50-51 (1966); and Williamson v. Lee Optical Co., 348 U.S. 483 (1955)) (emphasis added).
  18. ^ 429 U.S. 190, 206 (1976) (citing Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 330 & 322 (1964); Carter v. Virginia, 321 U.S. 131, 139-140 (1944) (Frankfurter, J., concurring); Finch & Co. v. McKittrick, 305 U.S. 395, 398 (1939); Department of Revenue v. James Beam Distilling Co., 377 U.S. 341 (1964); and Collins v. Yosemite Park & Curry Co., 304 U.S. 518 (1938)) (emphasis added).
  19. ^ See 23 U.S.C. § 158(a)(1) (2009) ("The Secretary [of Transportation] shall withhold 10 per centum of the amount required to be apportioned to any State under [23 U.S.C. § 104(b)(1)-(2), (5)-(6)] ... in which the purchase or public possession in such State of any alcoholic beverage by a person who is less than twenty-one years of age is lawful.").
  20. ^ 483 U.S. 203, 205 (1987); accord Griffin v. Sebek, 90 S.D. 692, 703-704 (1976) ("SDCL 35-6-27 provides: 'No licensee under this chapter shall sell or give any low-point beer to any person who is less than eighteen years old or to any person ... who is intoxicated at the time, or who is known to the seller to be an habitual drunkard.'") (quoting S.D. Codified Laws §§ 35-6-27 & 35-4-78(2) (1975)) (Dunn, C.J., dissenting), overruled on other grounds, Walz v. Hudson, 327 N.W.2d 120 (S.D. 1982), superseded by statute, S.D. Codified Laws § 35-4-78 (2009).
  21. ^ 483 U.S. 203, 211 (1987)
  22. ^ 483 U.S. 203, 209 (1987)
  23. ^ 483 U.S. 203, 212 (1987) ("[R]egulation of the minimum age of purchasers of liquor falls squarely within the ambit of those powers reserved to the States by the Twenty-first Amendment. Since States possess this constitutional power, Congress cannot condition a federal grant in a manner that abridges this right. The Amendment, itself, strikes the proper balance between federal and state authority.") (Brennan, J., dissenting) (alteration added) (citation omitted)
  24. ^ 483 U.S. 203, 218 (1987) (O'Connor, J., dissenting) (citing Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 716 (1984)).
  25. ^ 517 U.S. 484, 516 (1996)
  26. ^ 517 U.S. 484, 516 (1996) (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712 (1984)) (quotation omitted).
  27. ^ 544 U.S. 460, 484-485 (2005)
  28. ^ 544 U.S. 460, 514 (2005) (Thomas, J., dissenting).

External links

  • CRS Annotated Constitution: Twenty first Amendment
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