May 10, 2023 | SCOTUS Concludes Oral Arguments for the Term
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
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.
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.
The eighteenth amendment is repealed.
States, territories, or other areas under the control of the United States can still pass laws making it illegal to make, sell, move, or drink beer, wine, or liquor.
This amendment will not work unless it is added to the Constitution by the State Legislatures, like the Constitution says, seven years from the day after it is given to the States by Congress.
“The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”
“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.”
“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.”
The first section of the amendment explicitly repealed the 18th. The second section acknowledged the continued legality of any state laws that still prohibited or regulated alcohol. The third section set a timeline for ratification.
|Early Supreme Court Decisions: Broad State Power||Important Cases|
|In the decades since the passage of the 21st Amendment, the second section – permitting state regulation of the alcohol industry – has been the subject of regular controversy and litigation. The essential question is as follows: If section 2 of the 21st Amendment explicitly grants states the power to regulate the alcohol industry, does it grant states any more power than they would have had without the provision? Meaning, in general, states have the power to legislate in any area. They have so-called plenary police powers. It is only the federal government that needs explicit permission to do something. Ordinarily, states make laws under this framework, not through some special federal constitutional grant. Thus, here, does this provision of the 21st Amendment go beyond a state’s ordinary plenary police powers? If there is some other check on a states power (like the Commerce Clause or the Supremacy Clause), does it still apply in this particular arena?The general answer for whether states have broader authority to regulate the alcohol industry than other domains has changed over the years. At first, states were given incredibly broad authority. For example, in State Board of Equalization v. Young’s Market Company (1936), the Court addressed whether a state could enact a law placing a tax on alcohol brought into the states. The Commerce Clause and the Dormant Commerce Clause prohibit states from being protectionist. They cannot act like mini-countries and interfere with the flow of interstate commerce. But in Young’s Market, the Court held that section 2 of the 21st Amendment created an exception to this rule. States could do this in the realm of alcohol. Section 2 had given them special authority that overrode the other earlier provisions that limited a state’s power.|
Moreover, in Mahoney v. Joseph Triner Corp. (1938), the Court held that even the Equal Protection Clause did not apply to the alcohol industry, because of the 21st Amendment. In Indianapolis Brewing Co. v. Liquor Control Commission (1939), the Court reaffirmed its position that states had extraordinary power to legislate under section 2 of this amendment.
|State Board of Equalization v. Young’s Market Company (1936)|
Mahoney v. Joseph Triner Corp. (1938)
Indianapolis Brewing Co. v. Liquor Control Commission (1939)
|Modern Supreme Court Decisions: Limited State Power||Important Cases|
|Despite the broad authority given to states by the Supreme Court in the years immediately following the ratification of the 21st Amendment, in the modern era, this has changed dramatically.In United States v. Frankfort Distilleries, Inc. (1945), the Court held that the federal Sherman Antitrust Act did still apply to a state’s actions in the alcohol realm – even though the Sherman Act was passed pursuant to Congress power under the Commerce Clause. In Hostetter v. Idlewild Bon Voyage Liquor Corp. (1964), the Court again held that the Commerce Clause prevented states from taking certain action with regard to alcohol – this time prohibiting certain sales in an airport. In 44 Liquormart, Inc. v. Rhode Island (1996), the Court held that section 2 did not override any 1st Amendment protections. There, a state’s attempt to ban certain alcohol-related advertising was an unconstitutional violation of the freedom of speech, which was not overridden by the 21st Amendment.|
Recently, in Granholm v. Heald (2005), the Court explicitly rejected the notion that the 21st Amendment granted states any more power than they had before the 18th Amendment was passed. Here, unlike in the early cases mentioned above, the Court held that the 21st Amendment did not allow states to override other limiting constitutional provisions like the Dormant Commerce Clause. State legislation in the realm of alcohol, according to the majority, was not the incredible exception that the earlier cases had made it out to be.
|United States v. Frankfort Distilleries, Inc. (1945)|
Hostetter v. Idlewild Bon Voyage Liquor Corp. (1964)
44 Liquormart, Inc. v. Rhode Island (1996)
Granholm v. Heald (2005)