June 16, 2011 – Amendment XXI of the United States Constitution – Guest Essayist: Andrew Langer, President of the Institute for Liberty

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Amendment XXI

1:  The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

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.

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.

If nothing else, the 21st Amendment to the Constitution underscores the slippery slope that comes from both the adaptation of Constitutional prohibitions to the mores of the day, and the legal gymnastics that invariably ensue.

If you’ve already read Professor Joerg Knipprath’s excellent essay on the 18th Amendment here at Constituting America, you understand what led to the Prohibition era in the United States.  It became clear within the matter of a decade that America’s statist experimentation with a wholesale ban on alcohol was an abject failure—but because the nation had taken the extraordinary step of banning the manufacture, sale and use of a something within the Constitution, it would take another constitutional amendment to repeal that ban.

But while this act of “liberal fascism” (as Jonah Goldberg so aptly put it) took many years to come to fruition and ratification, it was undone in a matter of mere months.  This is because the architects of the 21st recognized something that should remain foremost in the minds of citizen activists when they are trying to figure out if politicians will do the “right thing” on issues.  They recognized that when push comes to shove, politicians will invariably be beholden to a narrow range of vocal special interests, and are thus apt to do something profoundly stupid for the rest of us.

When it comes to ratification of constitutional amendments, we are provided with two methods—the state legislature method, which had been the primary method of ratification of most of the Amendments to that point; or the state convention method.  In the case of the 21st, the architects chose the latter.  The reason for this is simple:  the proponents of the 21st wanted to avoid the political pressures that had, in fact, led to the adoption of the 18th amendment in the first place.  State legislators continued to be beholden to the temperance movement, a loud group whom it was perceived held great political power.

Using a method of state conventions, the 21st Amendment was ratified just months after it was passed by Congress.

The 2nd section of the amendment makes manifest the axiom of the road to hell being paved with good (legal and political) intentions.  While the architects clearly wanted to do the right thing and preserve those essential elements of state sovereignty guaranteed in the 10th Amendment, the broad, sweeping language has puzzled legal scholars and presented case after case to the courts.

Fundamentally, the questions arise as to whether or not the powers reserved to the states in section 2—to essentially decide for themselves if the state will remain “dry”, trump other rights guaranteed or powers created or reserved elsewhere in the Constitution.  Can a state ban the total use of alcohol, for instance, even in religious situations, thereby trumping both the 1st and 14th Amendments?  The answer is no, it can’t but it took a ruling by the Supreme Court to make that certain.

Clearly, the states have the power to exercise tremendous control over the alcohol that is manufactured and purchased within their borders.  But like all other powers in our republic, those too are limited.

America’s foray into constitutionally prohibiting the sale of a good in the marketplace offers us a helpful object lesson for those attempting just the flip-side today.  Today we’re not talking about the federal government trying to enact a sweeping ban on the sale of a good—we’re talking about attempts to enact a federal mandate on the purchase of a good:  health insurance.

Citizens implicitly understand the Constitution’s limitations in the imposition of the individual mandate:  Congress simply has no power to compel individual Americans to purchase a good.  We will most likely see the Supreme Court striking down those provisions of the recent comprehensive health care reform legislation on those very grounds.

But with almost similar certainty, when that happens, we will see a movement, similar in many respects to the Temperance movement, attempting to pass and ratify an amendment to make the compelled purchase of such a good constitutionally legal.

We know from careful study of the constitution and an implicit understanding of the concepts of limited, enumerated, and separated powers just how terrible such an amendment would be.  We need only look at the tortured history of the 18th and 21st amendments, and their impacts on American society and legal frameworks, to see directly what would happen if such a mandate were to come to constitutionally pass.

If there’s anything that we’ve learned from our foray into using the Constitution to tinker with both the marketplace and societal norms, it’s that it not only doesn’t work well, it has horrendous unintended consequences.

Andrew Langer is President of the Institute for Liberty http://www.instituteforliberty.org/

1 reply
  1. Ralph T. Howarth, Jr.
    Ralph T. Howarth, Jr. says:

    One of those “unintended consequences” is the BATF: Bureau of Alcohol Tobacco and Firearms. In the days of Prohibition, the contraband traffic of booze often was coupled with the laundering of money and counterfeiting, which in turn involved guns. Legal maneuvering was done in those days to where the US Department of Treasury was granted a police force of sorts to combat such societal problems that arose during Prohibition. As so often is, after the ban was lifted, the remnant federal bureaucracy was left in place and has not been removed or disbanded. Of course, the US Department of Treasury finds plenty of other things to do to justify the existence of the BATF. These days we see in the news controversies over the BATF with purposely allowing guns to be purchased by the Mexican cartels to prove a point and forward the agenda of gun control; but few people realize that the FBI runs under the US Justice Department while the BATF runs under teh US Treasury Department. They do collaborate often but are actually functionally independent of each other. One does not answer to the other.

    As for the 1st and 14th Amendments bearing on the 21st Amendment, the 1st is strictly a federal amendment restricting the federal government. What matters is the state constitutions with bills of rights protecting freedom of religion. The 14th only gives the federal government jurisdiction to inspect whether or not a state is following or breaking its own state’s laws by be selective which state citizens are being afforded protection under that states laws and who is not being protected by the same law unequally. Such sophistry can come in to play with things like a state ban on gambling withing the state; but then turn around and allow gambling on casino boats that navigate the waters within the state. Such a paradox is produced because the US Constitution interstate Commerce Clause has been broadly expanded to be federal jurisdiction even upon water ways that are internal to the state…after all, all water runs off eventually into other state’s ecosystems…gee even the evaporation of water in one state falls down as rain on another state…I digress, so courts could strike down gambling on river boats in lands that the state forbids gambling on basis of the 14th Amendment; but they don’t because gambling is not fully banned on the federal level and the courts do not want to touch the politically charged Commerce Clause expanded to include intrastate commerce, regulation of manufactures, and regulation of labor though no such enumerated powers were ever given consent to by 3/4ths of the states.

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