Does anyone ever read Section 2 of constitutional amendments?
Less than half of 27 amendments have them and several of those that do simply state: “The Congress shall have power to enforce this article by appropriate legislation.” While that provision is important, it’s not exactly as memorable as protecting freedom of speech or the right to vote.
In the case of the 21st Amendment, it’s easy to get caught up in Section 1. This is the part that repeals the 18th Amendment, ending the prohibition of the manufacture, sale or transportation of intoxicating liquors in the United States. Except that it didn’t and that’s where Section 2 comes in.
Section 2 of the 21st Amendment prohibits the “transportation or importation into any State… for delivery or use therein of intoxicating liquors, in violation of the laws thereof.” Basically, while the federal government got itself out of the Prohibition business, states still have the right to pass their own laws that regulate the transportation and use of alcohol. And other states and their inhabitants can’t violate them.
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The ironic result, as Dan Okrent points out in his book Last Call: The Rise and Fall of Prohibition, is that it actually became harder, not easier, to get a drink after the 18th Amendment was repealed. Section 2 of the 21st Amendment made sure that some form of Prohibition continued through a patchwork of state laws that today give us age restrictions, dry counties, state-run liquor stores and mandated closing times in an industry that for 13 years went unregulated.
In a recent New York Times op-ed, wine blogger David White explores the wholesale liquor industry and its roll in pushing for state laws that prevent consumers from ordering directly from out-of-state wineries. This is one issue that has only grown in the age of online shopping.
While a 2005 Supreme Court case ruled that the 21st Amendment does not allow liquor laws that violate interstate commerce rights, debate over alcohol regulations remain contentious in many places, particularly when it’s tied to the health of the state and local economy.
So do we need another amendment to repeal Amendment 21, Section 2? Probably not, but an amendment to repeal part of a repeal amendment would be the ultimate irony.