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The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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

The 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 Twenty-first Amendment is perhaps the simplest amendment to the United States Constitution. Its sole purpose is to repeal, or cancel, the earlier and very controversial Eighteenth Amendment. The Eighteenth Amendment banned the manufacture, sale, or transport of alcoholic beverages within the United States. The Eighteenth Amendment was ratified (approved) in 1919. It came at the high point of nearly one hundred years of protest against the damaging effects of alcohol consumption and created a social experiment called Prohibition.

The Twenty-first Amendment, ratified in 1933, was a dramatic reversal of Prohibition. It was a real victory for those who wished to limit the federal government’s power and give states the power to control local issues. In addition, the Twenty-first Amendment was the only amendment thus far to repeal an earlier amendment. It was also the only amendment ratified by state ratifying conventions instead of state legislatures.

Ratification Facts

Proposed:

Submitted by Congress to the states on February 20, 1933.

Ratification:

Ratified by the required three-fourths of states (thirty-six of forty-eight) on December 5, 1933, and by four more states on August 6, 1934. Declared to be part of the Constitution on December 5, 1933.

Ratifying States:

Michigan, April 10, 1933; Wisconsin, April 25, 1933; Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1, 1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts, June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa, July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933; California, July 24, 1933; West Virginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, 1933; Colorado, September 26, 1933; Washington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1933; Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November 27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah, December 5, 1933.

Temperance Advocates Push for Reform

The Eighteenth Amendment was ratified in 1919 with the best of intentions. For nearly one hundred years, temperance advocates (those who believed that alcohol should be enjoyed only in moderation) had been campaigning against the dangers of alcohol consumption. They proclaimed that alcohol abuse disrupted family life and made people unreliable workers and poor citizens.

They believed that a virtuous republic such as the United States required virtuous citizens—and there was no virtue in alcohol abuse. By the late nineteenth century, groups such as the Women’s Christian Temperance Union and the Anti-Saloon League had acquired enough power to convince many state and local governments to pass “dry” laws, which banned alcohol within the government’s jurisdiction.

By the turn of the twentieth century, changes in the economic and social structure of the nation encouraged temperance advocates to push for broader protections against the evils of alcohol. For example, temperance advocates feared the heavy drinking habits of many newly arrived immigrants to the United States. Advocates hated the saloons and bars that thrived in the rapidly growing U.S. cities. They argued that alcohol should be prohibited altogether.

Prohibition triumphs

Reverend Charles Stelzle’s 1918 book Why Prohibition! helped cement the argument for prohibition of alcohol. In his book, Stelzle stated:

Drinking … lowered industrial productivity and therefore reduced wages paid to workers; it shortened life and therefore increased the cost of insurance; it took money from other bills and therefore forced storekeepers to raise their prices in compensation; and it produced half of the business for police courts, jails, hospitals, almshouses [poorhouses], and insane asylums and therefore increased taxes to support these institutions.

Clearly, alcohol abuse was seen to permeate society with all kinds of negative effects and outlawing it would save everyone, or so it was assumed. By 1919, the pressure for national Prohibition was so great that Congress and state legislatures ratified the Eighteenth Amendment with stunning majorities. By 1920, a year after ratification, Prohibition was the law of the land.

The perils of Prohibition

The Volstead Act of 1920 (named after U.S. Congressman Andrew Volstead from Minnesota) was the law that authorized the enforcement of the Eighteenth Amendment. Prohibition’s backers boasted that the act would soon rid the United States of alcohol. For a time, it did appear that alcohol had disappeared from public life.

Eileen Lucas, author of The Eighteenth and Twenty-First Amendments: Alcohol—Prohibition and Repeal, quoted one man who observed that “for a year or two [Prohibition] was pretty generally observed and observed curiously enough because it did not occur to most people that it was possible to do anything else.”

Famous muckraking journalist Ida M. Tarbell traveled widely across the nation as a reporter. She claimed that “One sees liquor so rarely that you forget there is such a thing.” But it was not long before the popular thirst for alcohol brought drinking back to public attention—this time not as a private choice, but as an illegal activity.

A nation of drinkers.

Americans had always consumed alcohol. Some of the first colonists to set foot on the continent of North America brought alcohol with them. Alcohol—in the form of beer, wine, and hard liquor such as whiskey and gin—remained popular through the following centuries.

Throughout U.S. history, the tavern or the saloon was a gathering point in many communities. It was a place where men could exchange news and gossip while enjoying a drink. Casual drinking was thus a regular part of many people’s daily lives. For a time, Prohibition seemed to change these drinking habits. But it soon became clear that drinking had not been eliminated, just driven to the underground society, where people consumed alcohol in defiance of the law.

Without legal supplies, people soon found creative new ways to get their alcohol. Some turned to their doctors, many of whom were willing to write prescriptions for alcohol. Others brewed beer and wine or distilled spirits at home. The California grape industry actually enjoyed a boom when consumers learned that they could simply store grape juice for several weeks and it would turn into wine.

Perhaps most famously, Americans began to get their drinks at “speakeasies,” places which served alcohol illegally. Speakeasies opened in the back rooms of restaurants, in closed saloons, or in any inconspicuous building. Entrance was often gained by a password. Once inside, patrons could enjoy drinks, music, and dancing. Many criminals made a significant profit smuggling alcohol into the country from Canada and the Caribbean Islands. Despite Prohibition, drinking continued.

A nation of lawbreakers.

Most historians agree that per capita (for each person) consumption of alcohol did drop fairly dramatically during Prohibition. However, those willing to drink illegally attracted a great deal of attention. Speakeasies became a prominent feature of most good-sized cities. The frequent raids police made on them became a staple of local news coverage. Some of the more popular magazines of the day—Literary Digest, the New Yorker, and American Mercury—celebrated the drinking that continued among the upper classes in big cities and mocked the efforts of prohibitionists.

Illegal drinking and the movies.

Illegal drinking was publicized quite dramatically in the movies of the day. Beginning late in the 1920s, popular films portrayed the culture of the period. The films were filled with images of wild youths dancing, drinking, and listening to jazz in hip, downtown speakeasies.

One study of films shown in 1930 was quoted in Repealing National Prohibition. The study found that 78 percent of films included references to liquor. It also found that 43 percent of heroes and 23 percent of heroines drank alcohol. Even the criminals involved in distributing illegal alcohol—the bootleggers and gangsters—were often presented as honorable characters.

Bootlegging Gangsters

“Prohibition is a business,” boasted famed bootlegger Al Capone of Chicago. “All I do is supply a public demand.” In supplying the public demand for alcohol during the Prohibition years, Capone became the most famous bootlegger—and the most wanted criminal— in the United States. But he was far from the only man making a profit from Prohibition.

No sooner had Prohibition become law in the United States than a number of criminals sought to make money off the illegal distribution and sale of alcohol. Along the Canadian-American border, smugglers waited for nightfall to bring shipments of illegal alcohol into the country by car, speedboat, or plane. Ships full of liquor from the Bahamas and Canada worked the U.S. coast. “Rum runners” darted back and forth bringing the illegal spirits to land. Once the alcohol reached shore, organized criminal gangs distributed the booze to the speakeasies that sprang up across the nation. It did not take long to establish complex distribution networks to bring alcohol to thirsty citizens. These networks were organized and controlled by increasingly violent and dangerous criminal gangs.

Al Capone was the leader of Chicago’s biggest bootlegging gang. Capone personally killed several rivals and ordered the deaths of many others. In the mid-1920s, he led his gang on a quest to control the liquor business in Chicago. The gang war that erupted left nearly 500 gangsters dead. Eventually, Capone was tried and convicted of tax evasion—thanks in part to the efforts of FBI agent Elliott Ness and his special unit, “The Untouchables.”

Another famous bootlegger, George Remus, was a successful lawyer who thought he could make a fortune skirting Prohibition laws. Remus found loopholes in the Volstead Act that allowed him to own both distilleries and pharmacies. He used the distilleries to make alcohol, and the pharmacies to sell liquor under government licenses. Most of the liquor Remus’s companies made for the pharmacies disappeared before it reached the market. Remus became rich off the illegal sale of this alcohol. He used some of his money to bribe judges and law enforcement officials. Eventually he was sent to prison, but he had made nearly $40 million dollars in a few years as one of the nation’s smartest bootleggers.

Criminals and criminal gangs flourished wherever there were people who wanted to drink alcohol. However, their violence and criminal activity soon became a source of widespread social concern. Prohibition made criminals of those who merely wanted to buy a glass of beer. But it had also created a class of criminals who were more organized and more violent than any criminals the nation had ever seen. The rampant lawbreaking encouraged by Prohibition was one of the factors that led to repeal.

Illegal liquor as a booming industry

The popularity of speakeasies soon made the illegal liquor trade a booming industry. Organized crime syndicates, or gangs of bootleggers, soon emerged to handle the complex business of obtaining, shipping, and selling alcohol. Such gangs often found that the easiest way to obtain alcohol was to steal from other bootleggers.

Gangs often engaged in open warfare with each other (see sidebar). In Chicago alone, gang warfare accounted for the deaths of 215 criminals between 1923 and 1926. Al Capone became the dominant gang leader in that violent city and the most famous criminal of the 1920s. Gangs controlled the liquor trade in Boston, Philadelphia, Detroit, Cleveland, and Denver.

The cost of enforcement

The enforcement of Prohibition laws was handled jointly by federal, state, and local authorities. It soon proved to be more work than any of them could handle. Colorful Prohibition enforcement agents such as Izzy Einstein and Moe Smith crafted elaborate disguises in their undercover work. But despite their notable successes, law enforcement officials found stopping the flow of illegal alcohol tremendously difficult.

Jouett Shouse oversaw Prohibition efforts for the Department of the Treasury. Shouse estimated that it would take 35,000 customs agents to stop bootleggers from smuggling alcohol into the country; he had only 6,000. During the first four years of Prohibition, the federal government alone started over 90,000 prosecutions under Prohibition laws.

Law enforcement agencies and prisons were soon overwhelmed. In 1929, federal courts handled 75,298 Prohibition cases, and an even greater number of cases were handled at the local level. The federal prison system had sheltered just 5,000 inmates in 1920. It grew to contain over 12,000 inmates ten years later; 4,000 of those were imprisoned for liquor violations.

By the mid-1920s, some courts introduced a system called “bargain days.” On these days, Prohibition violators could plead guilty in exchange for lighter sentences. Such sentenced included no jail time and lower fines.

Law enforcement officials also turned to repressive and illegal tactics to fight bootleggers. Prohibition agents sometimes gunned down innocent citizens, stopped vehicles illegally, and even resorted to illegal wiretapping to catch criminals. According to public opinion, law enforcement officials simply could not keep up with the increasing lawlessness, and those officials might be willing to break the law themselves to gain the upper hand.

Resistance to Prohibition

By the mid-1920s, many saw Prohibition as a failure. Not only were Prohibition laws unpopular, but according to David Kyvig, they “foster[ed] criminal behavior, caus[ed] the government to take increasingly repressive enforcement action, and [bred] disrespect for all government and law.” Any hopes that Prohibition would reform the U.S. social structure were eliminated.

But repealing the Eighteenth Amendment seemed like an impossible dream. Never before had an amendment been repealed. Those opposed to the amendment feared that because ratification of a repeal amendment required a three-fourths majority, a minority of states would be able to fend off any repeal attempts. Senator Morris Sheppard from Texas had helped write the Eighteenth Amendment. He boasted, “There is as much a chance of repealing the Eighteenth Amendment as there is for a hummingbird to fly to Mars with the Washington Monument tied to its tail.”

Prior to the creation of the Eighteenth Amendment, there was little organized effort to block its passage. There were not pro-drinking groups to counter the powerful temperance and Prohibition organizations. The brewing and distilling industries lobbied against Prohibition, but they viewed each other as competitors and refused to cooperate with one other.

There was, however, a small organization called the Association Against the Prohibition Amendment (AAPA). It was formed late in 1918 by former Navy captain William H. Stayton. The association failed to create any real resistance to the Eighteenth Amendment, but its membership grew during Prohibition. By 1927, the group had reorganized and mounted a public campaign to expose the failings of Prohibition. Along with the Voluntary Committee of Lawyers (VCL) and the Women’s Organization for National Prohibition Reform (WONPR), the AAPA defined the issues that would eventually lead to the repeal of the Eighteenth Amendment (see sidebar).

The Road to Repeal

The first task of the AAPA and the VCL was to shape public opinion. They set out to do so with abandon. Both groups sent out speakers to talk to professional organizations, chambers of commerce, and other civic groups. Many of the people they addressed were already concerned about the lawlessness of the Prohibition era.

Repeal advocates helped educate people about the other costs associated with Prohibition. Their thoroughly researched reports argued that Americans spent a billion dollars more a year on illegal alcohol than when it was legal. Moreover, Prohibition was costing the government dearly. Reports pointed out that governments were losing hundreds of millions of dollars in excise taxes that they could have placed on alcohol. Also, they were spending staggering sums on ineffective law enforcement procedures. These reports were widely distributed and quoted in U.S. newspapers. Kyvig estimated that the reports may have reached nearly 100 million readers.

By 1930, the tide of public opinion had shifted away from Prohibition and toward repeal. The Literary Digest, a popular magazine at the time, conducted a national opinion survey in 1922. It found that 38.6 percent of Americans supported enforcing Prohibition laws, 40.8 percent wanted to modify laws to allow light wines and beer, and just 20.6 percent of people wanted to repeal Prohibition. Repeating its survey in 1930, the magazine found that 30.5 percent supported Prohibition laws (down 8%), 29.1 percent favored modification (down 11%), and 40.4 percent favored repeal (up 19.8%). In all, 69.5 percent of Americans supported some change in Prohibition laws.

The election of 1928

Prohibitionists, however, were not willing to give up. In 1928, Americans elected Republican Herbert Hoover for the presidency. Hoover had called Prohibition, “a great social and economic experiment, noble in motive and far-reaching in purpose.” He urged Americans to obey Prohibition laws. (The losing candidate was Democrat Alfred E. Smith. He had been the first national candidate to favor modification of the Volstead Act.)

The Congress elected in 1928 quickly passed the Jones Bill. This bill increased the fines and prison terms for those who broke liquor laws. The conservative Supreme Court made two decisions that further supported anti-liquor law enforcement: In Carroll v. United States it ruled that police could search automobiles suspected of containing alcohol without a warrant; and in Olmstead v. United States it established that police could listen to the phone calls of people suspected of being involved in bootlegging.

The Wickersham Commission Report

Shortly after his election, President Hoover commissioned an intensive study of national Prohibition. The so-called National Commission on Law Observance and Enforcement conducted a wide-ranging study of the problems of enforcing liquor laws. The commission heard from groups both for and against Prohibition.

On January 20, 1931, Hoover released the commission’s report, called the Wickersham Commission Report after its chairman George M. Wickersham. Hoover issued a statement declaring that “the commission, by a large majority, does not favor the repeal of the Eighteenth Amendment as a method of cure for the inherent abuses of the liquor traffic.”

It seemed that a government commission had offered its support for continuing Prohibition—until people read the report more closely. Critics pointed out that the report listed accurately all the problems with Prohibition and seemed to indicate that existing laws were not enforceable. Despite gathering evidence that would seem to call for repeal, however, the report’s conclusions came down solidly in favor of Hoover’s desire to increase enforcement of Prohibition. These contradictions made many question the report’s integrity. A famous editorial poem published in the New York World mocked the hypocrisy of the Wickersham Commission report:

Prohibition is an awful flop.


We like it.


It can’t stop what it’s meant to stop.


We like it.


It’s left a trail of graft and slime,


It don’t prohibit worth a dime,


It’s filled our land with vice and crime,


Nevertheless we’re for it.

The Depression and the politics of repeal

In the booming economic times of the 1920s, the high costs of enforcing the Prohibition laws and the decrease in tax dollars earned from taxing alcohol did not matter to most Americans. In short, when times were good, America could afford to fund Prohibition. But the stock market collapse of 1929, and the worldwide economic depression that followed, soon made the costs of enforcing Prohibition an expendable luxury.

According to Eileen Lucas, anti-Prohibitionists “argued that repeal of prohibition would increase government revenue, reduce taxes, create jobs, and expand markets for farm goods.” Labor leaders claimed that allowing beer production alone would create 250,000 jobs. Lucas added, “Humorist Will Rogers was not being funny when he pointed out, ‘What does Prohibition amount to if your neighbor’s children are not eating? It’s food, not drink, that is our problem now.’”

By the presidential election of 1932, repeal had become a serious campaign issue. Hoover and the Republicans continued their support of Prohibition. However, there was an extended debate in the Democratic Party. Finally, they came to agreement, and their candidate, Franklin Delano Roosevelt, came down solidly on the side of repeal. When accepting his party’s nomination, Roosevelt proclaimed, “This convention wants repeal. Your candidate wants repeal. And I am confident that the United States wants repeal. From this date on, the Eighteenth Amendment is doomed!”

The Association Against the Prohibition Amendment

By far, the most persuasive advocate for repeal of the Eighteenth Amendment was by the Association Against the Prohibition Amendment (AAPA). It was first established in 1918 by Captain William H. Stayton and several of his friends. However, the AAPA failed to achieve its first goal: preventing the passage of the Eighteenth Amendment. The passage of Prohibition laws only confirmed the beliefs of AAPA members that the responsibility for liquor laws ought to lay with local governments. It was this core belief in the importance of local lawmaking that motivated AAPA members to fight their thirteen-year battle for repeal.

The public campaign for passage of the Eighteenth Amendment had made it politically impossible to be in favor of free access to all forms of alcohol. Members of the AAPA knew that they could not appear to be in favor of a return to pre-Prohibition drinking patterns. Instead, the AAPA presented itself as an advocate for truly temperate drinking. For a time, its letterhead bore the slogan, “Beers and Light Wines NOW; But no Saloons EVER.”

In the early 1920s, some of AAPA’s most organized efforts went toward modifying the Volstead Act. It wanted to legalize alcoholic beverages that had an alcohol content of 2.75 percent or less. The American Federation of Labor, a large and powerful labor union, also backed this modification. Throughout the 1920s, the AAPA’s support of reasonable, temperate drinking helped it attract allies.

Encouraging temperate drinking was not the primary purpose of the AAPA, however. Stayton and other organization leaders believed the Eighteenth Amendment placed undue power in the hands of the federal government. The AAPA charter (a document announcing its intentions) stated that its primary objective was to educate the public about the “fundamental provisions, objects, and purposes of the Constitution of the United States … [and] to publicly present arguments bearing upon the necessity of keeping the powers of the several States separated from those of the Federal Government.”

Subsequent AAPA pamphlets stated the group’s mission more simply: “The Constitution inherited from our Fathers has been amended and mutilated. … Our Constitutional guarantees … have been violated. The right to govern ourselves in local affairs—a right won by our ancestors in three generations of struggle—is ignored.” This simple yet fundamental argument—that the Eighteenth Amendment stripped local lawmakers of the right to control local matters—formed the basis for the AAPA’s push for repeal.

The AAPA’s membership continued to grow throughout the early 1920s. However, internal bickering and poorly defined tactics kept the organization from gaining any ground in its fight for repeal. Late in 1927, AAPA executive James Wadsworth had Stayton’s cooperation to lead a dramatic reorganization of the group. Wadsworth recruited some of America’s most powerful citizens to serve on the AAPA’s executive committee, including senators, House members, and wealthy industrialists.

With this new political clout and financial backing, the AAPA rapidly increased its efforts. The AAPA spent hundreds of thousands of dollars a year in the late 1920s and early 1930s. It financed studies showing the economic, legal, and social problems caused by Prohibition. It pushed for changes in liquor laws on a national and local basis. It lobbied politicians to support repeal. Throughout this period, public support for repeal grew steadily—thanks in large part to the efforts of the now well-organized and powerful AAPA.

By 1928, the AAPA began to exert real influence on the Democratic Party, but the group was unable to place a call for repeal on the presidential party platform. By 1932, however, it was a different story. Along with other anti-Prohibition groups, the AAPA had convinced the Democratic Party to support repeal of the Eighteenth Amendment. Soon after Franklin Delano Roosevelt’s election, its members achieved their long-sought goal with the passage of the Twenty-first Amendment.

The beginning of the end

On November 8, 1932, Roosevelt—known popularly as FDR—won a decisive victory in the presidential election. Equally important to backers of repeal, anti-prohibitionists, or wets as they were called, gained substantial strength in Congress. According to Kyvig, “the New York Times calculated that the Seventy-third Congress would have 343 wet Representatives and 61 wet Senators.” Most of these politicians took the election results as a mandate (order) for repeal. A Literary Digest public opinion poll seconded public support for repeal. Offered a simple choice between continuing support for the Eighteenth Amendment and repeal, 73.5 percent of Americans supported repeal.

No time to waste.

Following the election of 1932, the pace of action toward repeal quickened considerably. Repeal advocates did not want to wait for the new Congress to convene to vote on repeal. They proposed a repeal amendment to the sitting Congress on December 5, 1932. They came up just six votes short of the two-thirds majority needed for passage.

The Senate began its debate of a repeal resolution in February 1933. Senator Sheppard attempted a filibuster (a lengthy speech intended to obstruct the passage of legislation) to avoid a vote. But the Senate voted to send the Twenty-first Amendment to the states by a count of 63 to 23. On February 20, the House seconded the repeal amendment by a vote of 289 to 121.

Roosevelt acted just as quickly. Shortly after taking office on March 4, 1933, he cut funding for the federal Prohibition Bureau. He also asked Congress to modify the Volstead Act to allow the sale of beer. This latter legislation was signed into law by FDR on April 7.

The few breweries that had stayed in business through Prohibition quit removing the alcohol from their beer. They began shipping “real” beer just after midnight on April 7, 1933. Beer lovers in the brewing center of Milwaukee, Wisconsin, celebrated the day as if it were a holiday. A plane took off for Washington, D.C., to deliver President Roosevelt his first shipment of beer. Congress and the president had now signaled their desire to bring Prohibition to an end. But it was up to the states to make repeal the law of the land. They would do so by novel means.

State conventions.

Prior to the Twenty-first Amendment, every constitutional amendment had been approved by state legislatures. But Article V of the Constitution also authorized Congress to present proposed amendments to “conventions.” Congress chose to send the Twenty-first Amendment to state conventions because it believed state conventions would better represent the will of the people. Also, it would not allow the minority of dry states to hold repeal hostage. The only problem was that no one knew exactly how state conventions should be formed.

The Voluntary Committee of Lawyers (VCL) had long supported repeal. Luckily, it stepped in to draft and propose model legislation that would provide for the creation of state conventions. Instead of allowing already-seated state legislators to cast votes, the legislation called for the election of convention delegates. The delegates would be appointed in proportion to the popular vote. Many states adopted the VCL’s legislation as it was written, and others adopted it to meet their needs.

On April 10, 1933, Michigan became the first state to vote for repeal of the Eighteenth Amendment. Many expected resistance from strong dry states such as Indiana, Texas, and Maine. However, each of these states also quickly voted for repeal. On December 5, 1933, Utah became the thirty-sixth—and decisive—state to cast its vote for the Twenty-first Amendment. With Utah’s vote, national Prohibition was over. For the first time in history, a Constitutional amendment had been repealed.

The United States after Repeal

Contrary to the fears of temperance advocates, the end of Prohibition did not bring about a rash of alcohol-related social problems. In fact, all the benefits that repeal advocates had promised were quickly realized. Americans were now more temperate. Per capita consumption of alcohol after the repeal of Prohibition only reached 60 percent of what it had been in the years before Prohibition. This statistic indicated that many Americans had stopped abusing alcohol to the degree that they once had. In fact, the biggest celebrations occurred around the reintroduction of beer in April 1933, and not around the final passage of the Twenty-first Amendment.

Widespread disregard for the law declined dramatically. After all, the law now suited the majority of the people. Perhaps most important, repeal brought real economic benefits to Americans who were enduring a lasting depression. According to an industry survey cited by Kyvig, by 1940 “the manufacture and sale of alcoholic beverages generated … 1,229,000 jobs and a billion dollars in wages. Federal, state, and local tax and license receipts amounted to another one billion dollars.”

Liquor legislation lives on

The repeal of Prohibition did not mean the end of liquor legislation. Instead, it meant that alcohol use would now be regulated at the local and state level, exactly where many repeal advocates felt such control should exist. Many states chose to license and regulate the private sale of alcohol. Others allowed the sale of alcoholic beverages only in state-run liquor stores. Others chose a combination of these methods.

In the early 2000s, most states regulate the location of establishments selling alcohol (not allowing them near schools or churches, for example). States also determine the age at which people can purchase alcohol (as of 2007, the age is twenty-one in every state), and regulate alcohol advertising. While alcohol is available in most parts of the country, some communities have preferred to remain dry.

The nature of alcohol consumption was certainly changed by Prohibition. Temperance advocates viewed saloons as centers of sin, but they largely disappeared from the social scene thanks to local liquor laws. The laws banned selling liquor by the drink, prevented the sale of liquor to intoxicated people, or insisted that alcohol only be served with food. Many of these laws were made less strict over time, but they did serve to end forever the saloon as a forum for public drunkenness.

The packaging of liquor also changed as a result of Prohibition. During Prohibition, soft drink bottlers learned how to package drinks in single-serving cans or bottles. Consumers found that they could store these beverages in another new device, the refrigerator. With repeal, more and more Americans were able to buy small amounts of alcohol and store it in the home for private use. The home, rather than the saloon, became the center for alcohol consumption. Temperance advocates were happy for this change. They felt that alcohol abuse would occur less often in the home.

The Constitution after Repeal

The Twenty-first Amendment was important because it ended the great social experiment: Prohibition. But as the first amendment to undo an earlier constitutional amendment, it also held important lessons about the meaning and uses of constitutional amendments in general.

Five amendments were rapidly passed between 1909 and 1932. Some Americans were encouraged to think of constitutional amendments as a powerful tool for shaping the government to suit their needs. Such thinking had led to amendments giving women the vote and allowing for the direct election of senators. But the Eighteenth Amendment had clearly overstepped the bounds of what was acceptable when it tried to limit individual actions in the name of morality. The result was the creation of laws that were very unpopular and were widely disregarded.

The repeal of the Eighteenth Amendment clearly indicated that there was a limit to what could be accomplished through constitutional amendments. The passage of the Twenty-first Amendment helped lawmakers see that they could not create laws that ran counter to popular opinion. It convinced many lawmakers that some powers were better left to state and local governments, or to personal choice. “After Prohibition,” wrote Kyvig, “American lawmakers became cautious about launching another major attempt to reshape individual behavior.”

Early 2000s Controversy over Section 2

The Twenty-first Amendment primarily is known for its all-important Section 1, which repealed, or nullified, the Eighteenth Amendment. When discussing the Twenty-first Amendment, most historians, teachers, and commentators talk about its ending Prohibition. in the 1930s.

However, Section 2 of the Twenty-first Amendment created a more modern legal controversy. Section 2 provides: “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.”

The issue has relevance in the early 2000s because several states have passed laws that impose greater burdens on out-of-state alcoholic merchants than in-state alcoholic merchants. The out-of-state merchants or producers contend that these laws harm their business and violate a part of the Commerce Clause known as the Dormant Commerce Clause, which prohibits states from passing laws that negatively impact interstate commerce.

The U.S. Supreme Court confronted the meaning of Section 2 of the Twenty-first Amendment in Granholm v. Heald (2005). In this case, a group of wineries and state residents challenged state laws in Michigan and New York that imposed severe economic burdens on out-of-state wineries in those states. They contended that the state laws violated the Dormant Commerce Clause by negatively harming interstate commerce. The states countered that their laws were justified by Section 2 of the Twenty-first Amendment which gives states the power to control the flow of alcohol within its borders.

The case sharply divided the Supreme Court, which ruled 5-4 in favor of the challenging plaintiffs and against the two state laws. “The differential treatment between in-state and out-of-state wineries constitutes explicit discrimination against interstate commerce,” wrote Justice Anthony Kennedy for the majority. “The [Twenty-first] 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.” In other words, the majority determined that the Commerce Clause concerns trumped the Twenty-first Amendment argument by the states.

Four justices dissented, maintaining that the plain language of the Twenty-first Amendment sanctioned such state laws. Justice John Paul Stevens wrote in his dissent that the majority would have been correct in its Commerce Clause analysis if the case involved any other product other than alcohol. However, Stevens wrote that “our Constitution has placed commerce in alcoholic beverages in a special category” in Section 2 of the Twenty-first Amendment.

Justice Clarence Thomas also wrote a dissenting opinion, criticizing the majority for ignoring earlier Court decisions that upheld similar state laws. He also criticized the majority for ignoring “the clear textual commands” of Section 2 of the Twenty-first Amendment.

Legal commentators agree that the Court had to decide a very difficult case. Law professor Stuart Banner wrote: “The odd wording of Section 2, a hangover of Prohibition and the decades of state liquor regulation that came before, will loom over the liquor industry for some time to come.

The Future of Alcohol in the United States

Sadly, neither the Eighteenth nor Twenty-first Amendments solved the problem of alcohol abuse in the United States. “According to the National Council on Alcoholism,” writes Lucas, “alcohol is a contributing factor in more than fifteen thousand deaths and 6 million injuries due to accidents each year. It is also a leading cause of crime.”

Underage drinking (drinking by those beneath the legal drinking age) is also a leading cause of crime and traffic accidents. The American experience with Prohibition probably means that Prohibition will never again be attempted on a national scale. However, legislators continue to struggle to craft laws and policies that help encourage temperate drinking in the United States.

FOR MORE INFORMATION

Books

Behr, Edward. Prohibition: Thirteen Years that Changed America. New York: Arcade Publishing, 1997.

Kyvig, David E., ed. Law, Alcohol, and Order: Perspectives on National Prohibition. Westport, CT: Greenwood Press, 1985.

Kyvig, David E. Repealing National Prohibition. Chicago, IL: University of Chicago Press, 1979.

Lerner, Michael A. Dry Manhattan: Prohibition in New York City. Cambridge, MA: Harvard University Press, 2007.

Lucas, Eileen. The Eighteenth and Twenty-first Amendments: Alcohol—Prohibition and Repeal. Springfield, NJ: Enslow Publishers, 1998.

Rebman, Renee C. Prohibition. San Diego, CA: Lucent Books, 1998.

Stelzle, Charles. Why Prohibition! New York: George H. Doran, 1918.

Periodicals

Banner, Stuart. “Granholm v. Heald: A Case of Wine and a Prohibition Hangover.” Cato Supreme Court Review 263 (2004–2005).

Web Sites

Dorf, Michael C. “In Vino Veritas? The Supreme Court’s Decision on Interstate Wine Shipment Creates Some Odd Bedfellows Among the Justices,” Findlaw Writ, May 23, 2005. (accessed September 12, 2007).

Kyvig, David. “Repealing National Prohibition.” (accessed September 12, 2007) .

McWilliams, Peter. “Prohibition: A Lesson in the Futility (and Danger) of Prohibiting.” (accessed September 12, 2007) .

“Temperance and Prohibition.” (accessed September 12, 2007.

Twenty-first AMENDMENT

Supreme Court Rules That States Must Allow Shipments and Sales from Out-of-State Wineries

In Granholm v. Heald, the U.S. Supreme Court voted to strike down laws from Michigan and New York that prohibited out-of-state wineries from shipping to in-state customers. The ruling, written by Justice Anthony Kennedy, will affect about two-dozen states with similar laws.

Michigan laws permitted the sale and shipment of wine from in-state wineries to consumers but prohibited such shipments from out-of-state wineries. According to the law, an out-of-state supplier who delivered wine directly to a resident committed a misdemeanor .

Ray and Eleanor Heald are wine critics from Michigan. Michigan law did not permit them to receive samples of wine from wineries outside of Michigan, and at times they were unable to purchase the wines from any vendors in the state. The Healds and 11 others filed suit against the state of Michigan in 2000, to challenge the constitutionality of the Michigan Liquor Control Code.

According to the Healds' lawsuit, the liquor laws violated the Commerce Clause of the U.S. Constitution. The Commerce Clause, found at Article I, section 8, clause 3, gives Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The plaintiffs in the Michigan case, which included a small California winery that was unable to make its product available for sale in Michigan, argued that the Michigan laws discriminated against out-of-state wineries by providing an unfair economic advantage to in-state businesses. The plaintiffs alleged that Michigan was interfering with the free flow of commerce.

Under the Michigan regulatory scheme, in-state wineries were able to bypass wholesalers' and retailers' price-markups. This advantage gave the in-state wineries a higher profit margin per bottle. Moreover, in-state wineries only paid a $25 license fee to be allowed to ship wine directly to consumers. Out-of-state wineries had to pay $300 before they could sell wine to Michigan wholesalers.

The state responded that the Twenty-first Amendment of the Constitution authorizes the different treatments of out-of-state and in-state wineries. The second section of the Twenty-first Amendment provides: "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." The Twenty-first Amendment, ratified in 1933, served to repeal Prohibition, which had been enacted under the Eighteenth Amendment. The state argued that differentiating between in-state and out-of-state wineries was necessary to ensure that alcohol would not be sold to minors, and to enable the state to collect applicable taxes.

The state prevailed initially, in federal district court . The court ruled that the Twenty-first Amendment allowed states to regulate the flow of alcohol into and within the state. The plaintiffs appealed, and the U.S. Court of Appeals for the Sixth Circuit ruled in their favor in August 2003.

The Sixth Circuit quoted Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324, 331-32 (1964) for the proposition that the Twenty-first Amendment does not take precedence over the Commerce Clause: "Both the Twenty-first Amendment and the Commerce Clause are parts of the same Constitution. Like other provisions of the Constitution, each must be considered in the light of the other, and in the context of the issues and interests at stake in any concrete case."

The Sixth Circuit traced the history of cases that have arisen under the Twenty-first Amendment. In early cases, the U.S. Supreme Court interpreted the Twenty-first Amendment as giving states "nearly limitless power to regulate alcohol." In the 1960s, the Court began to shift away from that position.

According to the Supreme Court, the Twenty-first Amendment embodies three core concerns: to promote temperance, to raise revenue, and to ensure orderly market conditions. Those concerns should take precedence over the commerce clause only if a state can "demonstrate that no reasonably nondiscriminatory alternatives are available to advance the same legitimate goals," Circuit Judge Martha Craig Daughtrey wrote in her opinion. On behalf of the three-judge panel, she concluded that Michigan had "not shown that [its] scheme's discrimination between in-state and out-of-state wineries furthers any concerns listed above, much less that no reasonable non-discriminatory means exists to satisfy these concerns."

The U.S. Court of Appeals for the Second Circuit reached a different conclusion in Swedenburg v. Kelly and helped to set the stage for the Supreme Court review. New York law required out-of-state wineries to have a branch office or warehouse within the state, before they could sell wine directly to consumers. When some out-of-state wineries brought suit, the court of appeals ruled that the state was acting within its authority under the Twenty-first Amendment:

New York's prohibition of the sale and shipment of wine by unlicensed wineries directly to New York consumers serves valid regulatory interests. The statute allows the state to monitor the distribution and sale of alcoholic beverages by permitting such distribution and sale only through state-licensed entities supervised by and accountable to the [State Liquor Authority] …Presence ensures accountability.

The U.S. Supreme Court accepted both cases for review, consolidated them, and heard oral argument in December 2004. On May 16, 2005, the court handed down its 5-4 ruling, holding that both the New York and Michigan laws discriminated against the out-of-state wineries. This discrimination violates the Commerce Clause; the Twenty-first Amendment does not authorize or permit the discrimination. Justice Kennedy labeled New York's discriminatory scheme "obvious" but found Michigan's scheme to be "indirect," and he wrote that both "deprive citizens of their right to have access to the markets of other States on equal terms."

The court examined the arguments that the laws were necessary to prevent minors' access to alcohol. The states argued that minors would be able to purchase alcohol directly from web sites of out-of-state wineries, without divulging their true ages. Michigan and New York argued that minors have access both to the Internet and to credit cards. Kennedy concluded that the states had provided scant evidence that such purchases were, or would be, a problem. He wrote:

Indeed, there is some evidence to the contrary. A recent study…found that the 26 States currently allowing direct shipments report no problems with minors' increased access to wine. This is not surprising for several reasons. First, minors are less likely to consume wine, as opposed to beer, wine coolers, and hard liquor. Second, minors who decide to disobey the law have more direct means of doing so. Third, direct shipping is an imperfect avenue of obtaining alcohol for minors who, in the words of the past president of the National Conference of State Liquor Administrators, "want instant gratification." (citations omitted)

With respect to the argument that the laws were necessary to facilitate tax collection, Kennedy concluded, "While their concerns are not wholly illusory, their regulatory objectives can be achieved without discriminating against interstate commerce."

Chief Justice William Rehnquist and Justices John Paul Stevens, Clarence Thomas, and Sandra Day O'Connor dissented. Justice Stevens, joined by Justice O'Connor, concluded that the laws would be patently discriminatory if they concerned something other than alcohol. Justice Thomas wrote for all of the dissenters when he criticized the majority for ignoring the Webb-Kenyon Act, a federal law that prohibits the shipment of alcohol into any state in violation of that state's laws.

Twenty-first Amendment

In 1919 the Eighteenth Amendment of the U.S. Constitution outlawed the manufacture, sale, and transportation of intoxicating liquors in the United States. Fourteen years later the United States adopted the Twenty-first Amendment to revoke the Eighteenth. The effect was to repeal nationwide Prohibition and to instead allow each state to decide whether to allow alcoholic beverages within its borders.

Prohibition had been the result of a social movement, largely by religious Protestants who believed alcoholic beverages were harmful to society. Once enacted, however, Prohibition resulted in other problems for society. Organized crime flourished to supply alcohol illegally to people who wanted it. Instead of collecting taxes on the sale of alcoholic beverages, government was now spending money to enforce the laws of

Prohibition and to combat organized crime. Law enforcement lacked sufficient resources to prosecute all the violations, so the Prohibition laws were largely unenforced. To raise revenue that it used to get from taxes on the sale of alcoholic beverages, the government had to raise other taxes, which was unpopular with many people.

In the 1930s the United States entered the Great Depression (1929–41). It was a poor economic time when jobs became scarce and national spending dropped. Repealing Prohibition would help the economy by adding jobs in industry for manufacturing, transporting, and selling alcoholic beverages. In the presidential election of 1932 the Democratic Party made the repeal of Prohibition part of its platform. The Democratic candidate Franklin D. Roosevelt (1882–1945; served 1933–45) won the election.

Congress proposed the Twenty-first Amendment near the beginning of 1933. legislatures to pass. State legislatures contained many conservative Protestants from rural areas who would vote against the Twenty-first Amendment for political reasons. State conventions would contain more regular citizens who could vote for Prohibition without hurting political careers. By December 1933 three-fourths of the states had called conventions that approved the amendment, officially repealing nationwide Prohibition.

Text of the Twenty-first 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.

The Twenty-first Amendment did not make alcoholic beverages legal nationwide. It just left the matter to the states. Many states continued Prohibition by enforcing their own laws. By 1966, however, all state Prohibition laws had been repealed too.

TWENTY-FIRST AMENDMENT

The Twenty-first Amendment to the U.S. Constitution reads:

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.

The Twenty-first Amendment was proposed on February 20, 1933, and ratified on December 5, 1933. It is the only amendment to repeal another amendment, the Eighteenth, and the only one to be ratified by state conventions rather than by state legislatures.

Repeal of the eighteenth amendment ended fourteen years of prohibition, a failed national experiment that sought to eliminate the consumption of intoxicating liquors. Though consumption was reduced, federal and state law enforcement officials could not prevent the illegal manufacture and sale of "bootleg" alcohol. organized crime profited from the ban on alcohol, which enabled criminals such as Chicago gangster al capone to become multi-millionaires. Critics of Prohibition argued that the increase in crime and lawlessness offset any gains from reducing the consumption of liquor.

Prohibition was supported most strongly in rural areas. In urban areas enforcement was difficult. Cities had large populations of immigrants who did not see anything morally wrong with consuming alcohol. In the early 1930s, as production and sales of illegal liquor continued to rise, the onset of the Great Depression led to calls for repeal of the Eighteenth Amendment. A legalized liquor industry would provide more jobs at a time when millions were out of work.

At its national convention in 1932, the democratic party adopted a platform plank calling for repeal. The landslide Democratic victory of 1932 signaled the end of Prohibition. In February 1933 a resolution proposing the Twenty-first Amendment was introduced in Congress; it contained a provision requiring ratification by state conventions rather than by state legislatures. Though Article V of the Constitution authorizes this ratification method, it had never been used. Supporters of repeal did not want the state legislatures, which generally were dominated by rural legislators supportive of Prohibition, to vote against ratification.

During 1933 thirty-eight states elected delegates to state conventions to consider the amendment. Almost three-quarters of the voters supported repeal in these elections. Therefore, it was not surprising that the ratification conventions certified the results and ratified the Twenty-first Amendment on December 5, 1933.

Section 2 of the amendment gives states the right to prohibit the transportation or importation of intoxicating liquors. Many states enacted their own prohibition laws in the 1930s, but all had been repealed by 1966. The regulation of liquor is now primarily a local issue.

further readings

Brown, Everett Somerville, compiler. 2003. Ratification of the Twenty-First Amendment to the Constitution of the United States: State Convention Records and Laws. Clark, N.J.: Lawbook Exchange.

TWENTY-FIRST AMENDMENT

The year 1933 marked a benchmark in U.S. constitutional history. The Twenty-first Amendment was enacted. It is the only constitutional amendment to repeal another amendment. With its ratification, the Eighteenth Amendment's mandate to eliminate liquor consumption in the United States was repealed.

Fourteen years after it began, Prohibition ended. Although the Eighteenth Amendment did succeed in reducing the amount of alcohol consumed, it failed in its goal of eliminating the consumption of intoxicating liquors in the United States. Many people continued to imbibe. Taking advantage of the legal ban on alcohol, organized crime helped develop a black market in "bootleg" alcohol to meet continuing public demand. Criminals like Chicago gangster Al Capone (1899-1947) became multimillionaires. In the early 1930s, production and sales of "bootleg" liquor continued to rise and the Great Depression began. Prohibition was difficult to enforce in urban areas, and critics argued the increase in crime resulting from the ban offset reductions in consumption. In addition, millions of citizens were out of work and legalizing the liquor industry would create more jobs. Calls for the repeal of the Eighteenth Amendment were gaining ground.

During the 1932 Democratic national convention, the party platform included a call for the repeal of the Eighteenth Amendment. In the presidential election of that year, the Democrats won a landslide victory. In February 1933, the Twenty-first Amendment was proposed in Congress. It specified the amendment must be ratified by state conventions rather than state legislatures so that legislators (who were predominantly from rural areas that supported Prohibition) could not vote against ratification.

Before 1933 was over, the Twenty-first Amendment had passed. Prohibition was officially over. The amendment did give states the right to prohibit the importation or transportation of intoxicating liquors, and many states did enact their own prohibition laws in the 1930s. By 1966, however, all state prohibition laws were repealed.

See also: Black Market, Eighteenth Amendment, Prohibition