Although the Constitution has been formally amended 27 times, the Twenty-First Amendment (ratified in 1933) is the only one that repeals a previous amendment, namely, the Eighteenth Amendment (ratified in 1919), which prohibited “the manufacture, sale, or transportation of intoxicating liquors.” In addition, it is the only amendment which was ratified, not by the legislatures of the states, but by state ratifying conventions, as called for by the Amendment’s third section. The Constitution, in Article V, allows for ratification by either method.
Why did those who proposed the Twenty-First Amendment take the unprecedented step of calling for ratification by convention delegates rather than by legislators? The answer seems to be that though prohibition of alcohol had lost a great deal of popular support by the early 1930s, the political power of the temperance lobby remained intact in a great many states. Many state legislators and legislative leaders were likely to be unwilling to risk the lobby’s wrath. So political prudence pointed in the direction of ratifying conventions as a way of leaving gun-shy legislators with their eyes on re-election out of the process and “off the hook.”
Why had public opinion turned against Prohibition? The story here is more complicated. Part of it is captured by the old joke that “after fourteen years with nothing to drink the American people got thirsty.” But the desire of people to drink beer, wine, and spirits lawfully was merely part of the story. More significantly, in all probability, is the judgment of a great many citizens that Prohibition had been a failed, if noble, experiment.
This is not to say that Prohibition had failed to reduce the consumption of alcohol or lower the alcoholism rate or ameliorate in some measure evils associated with drunkenness and alcohol addiction. Especially in the years immediately following Prohibition, the hopes of progressives and others who had supported ratification of the Eighteenth Amendment seemed well-founded. But soon evils on the other side of the ledger became apparent: The black market in alcohol quickly grew; and the inability or unwillingness of law enforcement agencies at every level to stop the illegal production, sale, and transportation of intoxicating liquors resulted in beverage alcohol being more or less easily available to anyone who wanted it, and at prices that ordinary working people could afford. Although the price of liquor, once it became illegal, shot way up in the period immediately following Prohibition, it soon fell dramatically. The Anti-Saloon League (founded in 1893) and its allies had shut down the saloon, only to have it replaced by the “speakeasy.”
What’s more, Prohibition had turned out to be a great boon to organized criminals, such as the notorious mobster Al Capone, who for their own reasons loved it as much as Frances Willard’s Women’s Christian Temperance Union did. Organized crime syndicates used profits from illegal liquor to corrupt police, resulting in non-enforcement of Prohibition (and other) laws in some cases and selective enforcement in others. The public was appalled.
Add to this the feeling that the widespread flouting of Prohibition laws was undermining respect for law in general and encouraging an attitude of contempt for rightful authority, and it is easy to see why support for repeal of Prohibition grew.
The Twenty-First Amendment did not, however, restore the status quo ante. Had its first section stood alone, that would have been the result. But its second section has been interpreted by the courts and others as giving broad authority over the regulation of alcoholic beverages to the states and limiting the power of the national government to intrude upon state alcohol beverage control policies. States, in turn, can and in many cases have delegated authority to counties and localities. As a result, the availability of alcoholic beverages, their prices, and the terms and conditions under which they can be obtained (for example, whether a county is “dry,” or whether a state itself exercises a monopoly on the sale of wines and spirits) have varied substantially across the country.
Litigation of Twenty-First Amendment issues has nearly always concerned the meaning of the Amendment’s second section, and usually the scope of state authority under it. Often questions arise concerning the impact of the second section of the Twenty-First Amendment on the power of Congress “to regulate commerce . . . among the several states . . . .” under Article I, Section 8 of the Constitution. The courts have held that the Amendment means that the power of Congress to displace state regulatory policies is narrower with respect to alcohol than it is to other goods and services; but precisely how much narrower has not been fully established.
Other significant litigation has concerned the impact of the second section of the Twenty-First Amendment on the interpretation of other provisions of the Constitution, such as the Equal Protection Clause of the Fourteenth Amendment (see Craig v. Boren (1976)) and the Freedom of Speech Clause of the First Amendment (see 44 Liquormart, Inc. v. Rhode Island (1996)).
What should we learn from the Twenty-First Amendment’s repeal of the Eighteenth Amendment? There is a narrow and broader such reading.
The narrow reading regards the Eighteenth Amendment as a success on the ground that “alcohol consumption declined during Prohibition,” “[a]rrests for public drunkenness and disorderly conduct declined 50 percent between 1916 and 1922,” “violent crime did not increase dramatically during Prohibition,” and “following the repeal of Prohibition, alcohol consumption increased,” as Professor Mark H. Moore explained in the New York Times. The narrow reading acknowledges:
This is not to say that society was wrong to repeal Prohibition. A democratic society may decide that recreational drinking is worth the price in tragic fatalities and other consequences. But the common claim that laws backed by morally motivated political movements cannot reduce drug use is wrong.
In particular, current federal and state laws that prohibit drug sale and use should be maintained:
There is a price to be paid for such restrictions, of course. But for drugs such as heroin and cocaine, which are dangerous but currently largely unpopular, that price is small relative to the benefits.
I have long defended a broader reading of what we should have learned from the Twenty-First Amendment, but have not. My argument was that drug use touched on issues of the control of consciousness that are at the heart of the values of freedom of thought and experience of the First Amendment (both the Free Exercise and Free Speech Clauses), and that any prohibition of such drugs must be justified by a compelling secular purpose. Neither the prohibition of alcohol nor of many other drugs could be thus justified, and indeed worsened harms sometimes incident to drug use that could better be mitigated by forms of regulation, including the availability of non-punitive medical and therapeutic services. The Prohibition Amendment for this reason violated human rights, and should further be condemned because its political motives were, on examination, racist, condemning the ways of life not only of people of color but of racialized recent immigrants. Such unjust criminalization—by making sale and manufacture of alcohol illegal—also made now illegal such businesses lucrative, including willingness to use forms of violence to support such businesses. The violent criminality associated with alcohol use was, in fact, largely the product of its unjust criminalization (its criminogenesis).
This essay is part of a discussion about the Twenty-First Amendment with Robert P. George, McCormick Professor of Jurisprudence, Professor of Politics and Parliamentarian, Princeton University. Read the full discussion here.
We have now had enough experience with prohibition of drugs (including alcohol, which is, of course, itself a drug) that the lessons we should have learned from Prohibition are now, I believe, conspicuously a matter of our experience today, including the ferocity of Nixon’s War on Crime in general and War on Drugs in particular that continued through the administrations of Presidents Ronald Reagan, George H.W. Bush, Bill Clinton, George W. Bush, and, apparently, Donald Trump. This, in turn, has played a prominent role in racialized mass incarceration in the United States that has now become a national and international scandal to many on both the left and right. What was true of the Prohibition Amendment was true as well of the shabby political motives (and racial and social prejudices) of the largely Republican sponsored War on Drugs, as Nixon advisor John Ehrlichman acknowledged. The violent criminality allegedly associated with drug use remains largely the product of its unjust criminalization, including the criminality that flourishes abroad in the nations that feed our drug habit. And drug prohibition and enforcement are highly racialized, as if the harms of drug use only trigger intervention when they are the drug habits of lower-class people of color.
What we should have learned from the Prohibition Amendment, we have not learned—caught in a repetition compulsion motored by some of our worst, most ignoble political impulses. It is time for a change.
Mark H. Moore, “Actually, Prohibition Was a Success,” New York Times (Oct. 16, 1989).
David A.J. Richards, Sex, Drugs, Death, and the Law: An Essay on Human Rights and Overcriminalization (Totowa, N.J.: Rowman and Littlefield, 1982).
David A.J. Richards, “Drug Use and the Rights of the Person: A Moral Argument for Decriminalization of Certain Forms of Drug Use,” 33 Rutgers L. Rev. 607 (1981).
Douglas N. Husak, Drugs and Rights (Cambridge: Cambridge University Press, 1992).
Douglas Husak, Legalize This! The case for decriminalizing drugs (London: Verso, 2002).
Douglas Husak, Overcriminalization: The Limits of the Criminal Law (New York: Oxford University Press, 2008).
Michelle Alexander, The New Jim Crow: Mass Incarceration in the Age of Colorblindness (New York: The New Press, 2010).
John F. Pfaff, Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform (New York: Basic Books, 2017).
David Dagan and Steven M. Teles, Prison Break: Why Conservatives Turned Against Mass Incarceration (New York: Oxford University Press, 2016).
Jason Smiley, How Propaganda Works (Princeton: Princeton University Press, 2015).
In an age and culture dominated, at least in higher education and other elite sectors, by the doctrines of expressive individualism and me-generation libertarianism, I’ve made something of a career of defending what is sometimes labeled “traditional morality,” and the legitimacy, at least in principle, of the much maligned concept of “public morals legislation.”
Against claims that laws prohibiting or restricting, for example, adultery, prostitution, pornography, contraception, sodomy, polygamy, gambling, and the recreational use of narcotics and hallucinogenic drugs violate an individual right to “liberty,” or “privacy,” or “self-determination,” or “moral independence,” I’ve argued that such laws, assuming the soundness of the underlying morality they seek to uphold, do not in themselves or necessarily violate any principle of justice or other norm of political morality. I think that the classic formulation of the police powers of law and government as extending to the protection of “public health, safety, and morals” is sound.
I also believe that law and government may, for the sake of protecting public health, safety, and morals, restrict or even forbid activities, such as drinking alcoholic beverages, that are not wrong in themselves, but may be abused in ways that result in significant damage to the community’s common good. So I do not believe that the prohibition of alcohol ushered in by the Eighteenth Amendment was unjust—a violation of people’s rights—or that the repeal of prohibition by the Twenty-First Amendment was morally required as a matter of vindicating rights.
Not everyone associated with the movement for alcohol prohibition in the nineteenth and early twentieth centuries had pure motives. Indeed, some prohibitionists had very bad motives. Some were influenced by nativism and hostility to immigrants, especially Catholics and Jews, and, in the wake of the First World War, Germans of any faith. But social reform movements rarely comprise only the entirely well-motivated and pure of heart. And many well-intentioned and honorable people—progressives, activists for women’s rights, religious people—were motivated by an honest (and accurate) sense that drunkenness and alcohol addiction were significant contributing factors to major social ills.
In my opinion, their “noble experiment” was worth a try. But I share the opinion that it failed. Repeal of the Eighteenth Amendment by the Twenty-First was prudent and justified.
Again, that is not because prohibiting alcohol as a way of fighting addiction, public disorder, domestic violence, family abandonment or fragmentation, unemployability and consequent poverty, and other social pathologies is in itself a violation of anyone’s human rights. It is because the social costs and consequences of Prohibition warranted the judgment that, all things considered, any social benefits of Prohibition (including some reduction of the types of social ills I mentioned) were not worth the price—measured in terms of, for example, the empowerment of organized crime, the corruption of law enforcement officials, and erosion of respect for law and authority deriving from widespread defiance of the law and the unwillingness or inability of governments to enforce it.
As I have argued in other writings, these “prudential” concerns are among the types of considerations that citizens and lawmakers rightly take into account in making “all things considered” judgments about whether to fight moral and social evils by (perhaps among other methods) legal prohibition—at least where considerations of basic justice do not require legal prohibition independently of consideration of social side effects of a prohibition policy. (Slavery, for example, must as a matter of basic justice be prohibited, even where it has existed for a long time and is integrated into a stable social order, despite the possibility that abolition would be socially destabilizing in certain ways and perhaps produce adverse economic consequences.)
This essay is part of a discussion about the Twenty-First Amendment with David A.J. Richards, Edwin D. Webb Professor of Law, New York University School of Law. Read the full discussion here.
In consequence, with respect to many questions of legal prohibition of vices, much depends on the contingent circumstances of a particular society or jurisdiction at a particular time. These circumstances are, in addition, often shaped in significant ways by a community’s history and traditions. As a result, there are public morals legislation questions on which different communities, or the same community at different points in its history, reasonably differ. There is no a priori reason to suppose that alcohol—or drug—prohibition, for example, is the right or wrong policy for every polity. To the question: Should alcohol (or drugs) be prohibited? The initial answer should be, “it all depends.” The next sentence should be: “Tell me more about the circumstances of your society, so that we can assess the harm being done by addiction, intoxication, etc. and the likely good and bad effects of prohibition.”
The Twenty-First Amendment was adopted because Americans came to believe—quite rightly, in my view—that the bad effects of the “noble experiment” with alcohol prohibition constituted too high a price to pay for any good effects.
Robert P. George, Making Men Moral: Civil Liberties and Public Morality (Oxford: Clarendon Press, 1995).
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