1977

1 299 U.S. 59 (1936).

2 304 U.S. 401 (1938).

REPEAL OF THE EIGHTEENTH AMENDMENT

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Constitution of the United States is hereby repealed.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.

Effect of Repeal

The operative effect of § 1, repealing the Eighteenth Amendment, is considered in the commentary dealing with that Amendment.

Scope of Regulatory Power Conferred upon the States

Discrimination as Between Domestic and Imported Products.—In a series of interpretive decisions rendered shortly after

ratification of this Amendment, the Court established the proposition that States are competent to adopt legislation discriminating

against imported intoxicating liquors in favor of those of domestic

origin and that such discrimination offends neither the commerce

clause of Article I nor the equal protection and due process clauses

of the Fourteenth Amendment. Thus, in State Board of Equalization v. Young’s Market Co., 1 a California statute was upheld

which exacted a $500 annual license fee for the privilege of importing beer from other States and a $750 fee for the privilege of manufacturing beer; and in Mahoney v. Triner Corp., 2 a Minnesota statute was sustained which prohibited a licensed manufacturer or
1978 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT

3 305 U.S. 391 (1939).

4 305 U.S. 395 (1939).

5 299 U.S. 59, 62 (1936).

6 Id. at 63–64. In the three decisions rendered subsequently, the Court merely

restated these conclusions. The contention that discriminatory regulation of imported liquors violated the due process clause was summarily rejected in Brewing

Co. v. Liquor Comm’n, 305 U.S. 391, 394 (1939). 7 384 U.S. 35 (1966).

8 Id. at 42. See United States v. Frankfort Distilleries, 324 U.S. 293, 299 (1945)

and Nippert v. Richmond, 327 U.S. 416, 425 (1946).

wholesaler from importing any brand of intoxicating liquor containing more than 25 percent alcohol by volume and ready for sale

without further processing, unless such brand was registered in the

United States Patent Office. Also validated in Brewing Co. v. Liquor Comm’n 3 and Finch & Co. v. McKittrick 4 were retaliation laws

enacted by Michigan and Missouri, respectively, by the terms of

which sales in each of these States of beer manufactured in a State

already discriminating against beer produced in Michigan or Missouri were rendered unlawful.

Conceding, in State Board of Equalization v. Young’s Market

Co., 5 that ‘‘prior to the Twenty-first Amendment it would obviously

have been unconstitutional to have imposed any fee for . . . the

privilege of importation . . . even if the State had exacted an equal

fee for the privilege of transporting domestic beer from its place of

manufacture to the [seller’s] place of business,’’ the Court proclaimed that this Amendment ‘‘abrogated the right to import free,

so far as concerns intoxicating liquors.’’ Inasmuch as the States

were viewed as having acquired therefrom an unconditioned authority to prohibit totally the importation of intoxicating beverages,

it logically followed that any discriminatory restriction falling short

of total exclusion was equally valid, notwithstanding the absence of

any connection between such restriction and public health, safety

or morals. As to the contention that the unequal treatment of imported beer would contravene the equal protection clause, the

Court succinctly observed that a ‘‘classification recognized by the

Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.’’ 6

In Seagram & Sons v. Hostetter 7 a case involving a state statute regulating the price of intoxicating liquors, the Court upheld

the statute, asserting that the Twenty-first Amendment bestowed

upon the States broad regulatory power over the liquor sales within their territories. 8 It was also noted that States are not totally

bound by traditional commerce clause limitations when they restrict the importation of toxicants destined for use, distribution, or
AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 1979

9 Id. at 384 U.S. 35. See, e.g. Hostetter v. Idlewild Liquor Corp., 377 U.S. 324,

330 (1964) and State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59 (1936). 10 384 U.S. at 35. The Court went on to assert that it was not deciding then

whether the mode of liquor regulation chosen by a State in such circumstances could

ever constitute so grave an interference with a company’s operations elsewhere as

to make the regulation invalid under the commerce clause. Id. at 42–43. 11 Id. at 47. 12 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984). 13 467 U.S. at 715 (quoting California Retail Liquor Dealers Ass’n. v. Midcal

Aluminum, Inc., 445 U.S. 97, 110 (1980)). 14 Bacchus Imports, Ltd., v. Dias, 468 U.S. 263, 276 (1984). See also BrownForman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573 (1986) (attempt to regulate prices of out-of-state sales); Capital Cities Cable, Inc. v. Crisp, 467

U.S. 691 (1984) (state’s limited interest in banning wine commercials carried on

cable TV while permitting various other forms of liquor advertisement is outweighed

by federal interest in promoting access to cable TV); and 324 Liquor Corp. v. Duffy,

479 U.S. 335 (1987) (retail price maintenance in violation of Sherman Act).

consumption within their borders. 9 In such a situation the Twentyfirst Amendment demands wide latitude for regulation by the

State. 10 The Court added that there was nothing in the Twentyfirst Amendment or any other part of the Constitution that required state laws regulating the liquor business to be motivated exclusively by a desire to promote temperance. 11

Recent cases have undercut the expansive interpretation of

state powers in the Young’s Market and Triner Corp. cases. Twenty-first Amendment and Commerce Clause principles are to be harmonized where possible. The Court now phrases the question in

terms of ‘‘whether the interests implicated by a state regulation are

so closely related to the powers reserved by the Twenty-first

Amendment that the regulation may prevail, notwithstanding that

its requirements directly conflict with express federal policies.’’ 12

‘‘[T]he central power reserved by § 2 of the Twenty-first Amendment [is] that of exercising ‘control over whether to permit importation or sale of liquor and how to structure the liquor distribution

system.’ ’’ 13 Because ‘‘[t]he central purpose of the [Amendment] was

not to empower States to favor local liquor industries by erecting

barriers to competition,’’ the ‘‘central tenet’’ of the Commerce

Clause will control to invalidate ‘‘mere economic protectionism,’’ at

least where the state cannot justify its tax or regulation as ‘‘designed to promote temperance or to carry out any other purpose of

the . . . Amendment.’’ 14

Regulation of Transportation and ‘‘Through’’ Shipments.—When passing upon the constitutionality of legislation regulating the carriage of liquor interstate, a majority of the Justices

seemed disposed to by-pass the Twenty-first Amendment and to resolve the issue exclusively in terms of the commerce clause and

state power. This trend toward devaluation of the Twenty-first
1980 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT

15 308 U.S. 132 (1939). 16 Id. at 138. 17 314 U.S. 390 (1941). 18 321 U.S. 131 (1944). See also Cartlidge v. Raincey, 168 F.2d 841 (5th Cir.

1948), cert. denied, 335 U.S. 885 (1948). 19 Arkansas required a permit for the transportation of liquor across its territory, but granted the same upon application and payment of a nominal fee. Virginia

required carriers engaged in similar through-shipments to use the most direct route,

carry a bill of lading describing that route, and post a $1000 bond conditioned on

lawful transportation; and also stipulated that the true consignee be named in the

bill of lading and be one having the legal right to receive the shipment at destination.

Amendment was set in motion by Ziffrin, Inc. v. Reeves 15 wherein

a Kentucky statute, forbidding the transportation of intoxicating

liquors by carriers other than licensed common carriers, was enforced as to an Indiana corporation, engaged in delivering liquor

obtained from Kentucky distillers to consignees in Illinois but licensed only as a contract carrier under the Federal Motor Carriers

Act. After acknowledging that ‘‘the Twenty-first Amendment sanctions the right of a State to legislate concerning intoxicating liquors

brought from without, unfettered by the Commerce Clause,’’ 16 the

Court then proceeded to found its ruling largely upon decisions

antedating the Amendment which sustained similar state regulations as a legitimate exercise of the police power not unduly burdening interstate commerce. In the light of the cases enumerated

in the preceding paragraph, wherein the Twenty-first Amendment

was construed as according a plenary power to the States, such extended emphasis on the police power and the commerce clause

would seem to have been unnecessary. Thereafter, a total eclipse

of the Twenty-first Amendment was recorded in Duckworth v. Arkansas 17 and Carter v. Virginia, 18 wherein, without even considering that Amendment, a majority of the Court upheld, as not contravening the commerce clause, statutes regulating the transport

through the State of liquor cargoes originating and ending outside

the regulating State’s boundaries. 19

Regulation of Imports Destined for a Federal Area.—Intoxicating beverages brought into a State for ultimate delivery at

a National Park located therein but over which the United States

retained exclusive jurisdiction has been construed as not constituting ‘‘transportation . . . into [a] State for delivery and use therein’’

within the meaning of § 2 of the Amendment. The importation having had as its objective delivery and use in a federal area over

which the State retained no jurisdiction, the increased powers

which the State acquired from the Twenty-first Amendment were

declared to be inapplicable. California therefore could not extend

the importation license and other regulatory requirements of its Al-
AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 1981

20 Collins v. Yosemite Park Co., 304 U.S. 518, 537–38 (1938). The principle was

reaffirmed in United States v. Mississippi Tax Comm’n, 412 U.S. 363 (1973), holding

that Mississippi could not apply its tax regulations to liquor sold to military officers’

clubs and other nonappropriated fund activities located on bases within the State

and over which the United States had obtained exclusive jurisdiction. ‘‘Absent an

appropriate express reservation . . . the Twenty-first Amendment confers no power

on a State to regulate—whether by licensing, taxation, or otherwise—the importation of distilled spirits into territory over which the United States exercises exclusive jurisdiction.’’ Id. 375. Nor may states tax importation of liquor for sale at bases

over which the United States exercises concurrent jurisdiction only. United States

v. Mississippi Tax Comm’n, 421 U.S. 599 (1975). 21 North Dakota v. United States, 495 U.S. 423 (1990) (also upholding application to federal enclaves of a uniform requirement that shipments into the state be

reported to state officials). 22Department of Revenue v. Beam Distillers, 377 U.S. 341 (1964). The Court

distinguished Gordon v. Texas, 355 U.S. 369 (1958) and De Bary v. Louisiana, 227

U.S. 108 (1913). 23 Hostetter v. Idlewild Liquor Corp., 377 U.S. 324 (1964). 24 Brown-Forman Distillers Corp. v. New York State Liquor Auth., 476 U.S. 573,

585 (1986) (citation omitted). Accord, Healy v. Beer Institute, 491 U.S. 324 (1989). 25State Bd. of Equalization v. Young’s Market Co., 299 U.S. 59, 64 (1936). In

Craig v. Boren, 429 U.S. 190, 206–07 (1976), this case and others like it are distincoholic Beverage Control Act to a retail liquor dealer doing business in the Park. 20 On the other hand, a state may apply nondiscriminatory liquor regulations to sales at federal enclaves under

concurrent federal and state jurisdiction, and may require that liquor sold at such federal enclaves be labelled as being restricted for

use only within the enclave. 21

Foreign Imports, Exports; Taxation, Regulation.—The

Twenty-first Amendment did not repeal the export-import clause,

Art. I, § 10, cl. 2, nor obliterate the commerce clause, Art. I, § 8, cl.

3. Accordingly, a State cannot tax imported Scotch whiskey while

it remains ‘‘in unbroken packages in the hands of the original importer and prior to [his] resale or use’’ thereof. 22 Likewise, New

York is precluded from terminating the business of an airport dealer who, under sanction of federal customs laws, acquired ‘‘tax-free

liquors for export’’ from out-of-state sources for resale exclusively to

airline passengers, with delivery deferred until the latter arrive at

foreign destinations. 23 Similarly, a state ‘‘affirmation law’’ prohibiting wholesalers from charging lower prices on out-of-state sales

than those already approved for in-state sales is invalid as a direct

regulation of interstate commerce. ‘‘The Commerce Clause operates

with full force whenever one State attempts to regulate the transportation and sale of alcoholic beverages destined for distribution

and consumption in a foreign country . . . or another State.’’ 24

Effect of Section 2 upon Other Constitutional Provisions.—Nothwithstanding the 1936 assertion that ‘‘[a] classification recognized by the Twenty-first Amendment cannot be deemed

forbidden by the Fourteenth,’’ 25 the Court has now in a series of
1982 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT

guished as involving the importation of intoxicants into a State, an area of increased

state regulatory power, and as involving purely economic regulation traditionally

meriting only restrained review. Neither distinguishing element, of course, addresses the precise language quoted. For consideration of equal protection analysis in an

analogous situation, the statutory exemption of state insurance regulations from

commerce clause purview, see Western & Southern Life Ins. Co. v. State Bd. of

Equalization, 451 U.S. 648, 655–74 (1981). 26 429 U.S. 190 (1976). 27 Id. at 206 (quoting P. BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING—CASES AND MATERIALS 258 (1975). 28 Id. at 209–10. 29 E.g., Moose Lodge No. 107 v. Irvis, 407 U.S. 163, 178–97 (1972) (invalidating

a state liquor regulation as an equal protection denial in a racial context); Wisconsin

v. Constantineau, 400 U.S. 433 (1971) (invalidating a state law authorizing the posting of someone as an ‘‘excessive drinker’’ and thus barring him from buying liquor,

as reconstrued in Paul v. Davis, 424 U.S. 693, 707–09 (1976)). 30Larkin v. Grendel’s Den, Inc., 459 U.S. 116, 122 n.5 (1982). 31 409 U.S. 109 (1972).

cases acknowledged that § 2 of the Twenty-first Amendment did not

repeal provisions of the Constitution adopted before ratification of

the Twenty-first, save for the severe cabining of commerce clause

application to the liquor traffic, but it has formulated no consistent

rationale for a determination of the effect of the later provision

upon earlier ones. In Craig v. Boren, 26 the Court invalidated a

state law that prescribed different minimum drinking ages for men

and women as violating the equal protection clause. To the State’s

Twenty-first Amendment argument, the Court replied that the

Amendment ‘‘primarily created an exception to the normal operation of the Commerce Clause’’ and that its ‘‘relevance . . . to other

constitutional provisions’’ is doubtful. ‘‘‘Neither the text nor the history of the Twenty-first Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth

Amendment where the sale or use of liquor is concerned.’ ’’ 27 The

square holding on this point is ‘‘that the operation of the Twentyfirst Amendment does not alter the application of the equal protection standards that would otherwise govern this case.’’ 28 Other decisions reach the same result but without discussing the application of the Amendment. 29 Similarly, a state ‘‘may not exercise its

power under the Twenty-first Amendment in a way which impinges

upon the Establishment Clause of the First Amendment.’’ 30

That these cases do not draw a bright line between the commerce clause and other constitutional provisions is evident from

California v. LaRue. 31 There, the Court sustained the facial constitutionality of regulations barring a lengthy list of actual or simulated sexual activities and motion picture portrayals of these activities in establishments licensed to sell liquor by the drink. In an action attacking the validity of the regulations as applied to ban nude

dancing in bars, the Court considered at some length the material
AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 1983

32 Cf. Schad v. Borough of Mount Ephraim, 452 U.S. 61 (1981) (ban on live nude

dancing in Borough); Doran v. Salem Inn, 422 U.S. 922 (1975) (ban on nude dancing

in ‘‘any public place’’ applied to topless dancing in bars). 33 409 U.S. at 114–19. In Doran v. Salem Inn, 422 U.S. 922, 932–33 (1975), the

Court described its holding in LaRue more broadly, saying that ‘‘we concluded that

the broad powers of the States to regulate the sale of liquor, conferred by the Twenty-first Amendment, outweighed any First Amendment interest in nude dancing and

that a State could therefore ban such dancing as part of its liquor license control

program.’’ 34 New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 717 (1981). 35For a rejection of the argument in another context, contemporaneously with

Bellanca, see Western & Southern Life Ins. Co. v. State Bd. of Equalization, 451

U.S. 648, 657–68 (1981). And for utilization of the argument in the commercial

speech context, see Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico,

478 U.S. 328, 345–46 (1986). But see Capital Cities Cable, Inc. v. Crisp, 467 U.S.

691 (1984), not addressing the commercial speech issue but holding state regulation

of liquor advertisements on cable TV to be preempted, in spite of the Twenty-first

Amendment, by federal policies promoting access to cable TV). 36 United States v. Frankfurt Distilleries, 324 U.S. 293, 297–99 (1945).

adduced at the public hearings which resulted in the rules demonstrating the anti-social consequences of the activities in the bars.

It conceded that the regulations reached expression that would not

be deemed legally obscene under prevailing standards and reached

expressive conduct that would not be prohibitable under prevailing

standards, 32 but the Court thought that the constitutional protection of conduct that partakes ‘‘more of gross sexuality than of communication’’ was outweighed by the State’s interest in maintaining

order and decency. Moreover, the Court continued, the second section of the Twenty-first Amendment gave an ‘‘added presumption

in favor of the validity’’ of the regulations as applied to prohibit

questioned activities in places serving liquor by the drink. 33

A much broader ruling was forthcoming when the Court considered the constitutionality of a state regulation banning topless

dancing in bars. ‘‘Pursuant to its power to regulate the sale of liquor within its boundaries, it has banned topless dancing in establishments granted a license to serve liquor. The State’s power to

ban the sale of alcoholic beverages entirely includes the lesser

power to ban the sale of liquor on premises where topless dancing

occurs.’’ 34 This recurrence to the greater-includes-the-lesser-power

argument, relatively rare in recent years, 35 would if it were broadly applied give the States in the area of regulation of alcoholic beverages a review-free discretion of unknown scope.

Effect on Federal Regulation

The Twenty-first Amendment of itself did not, it was held, bar

a prosecution under the Sherman Antitrust Act of producers,

wholesalers, and retailers charged with conspiring to fix and maintain retail prices of alcoholic beverages in Colorado. 36 In a concur-
1984 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT

37 Id. at 301–02. For application of federal laws, see William Jameson & Co. v.

Morgenthau, 307 U.S. 171 (1939); Kiefer-Stewart Co. v. Joseph E. Seagram & Sons,

340 U.S. 211 (1951); Schwegmann Bros. v. Calvert Corp., 341 U.S. 384 (1951); Joseph E. Seagram & Sons v. Hostetter, 384 U.S. 35 (1966); Burke v. Ford, 389 U.S.

320 (1967).

38 California Retail Liquor Dealers Ass’n v. Midcal Aluminum, 445 U.S. 97, 110

(1980).

39South Dakota v. Dole, 483 U.S. 203, 210 (1987).

ring opinion, supported by Justice Roberts, Justice Frankfurter

took the position that if the State of Colorado had in fact ‘‘authorized the transactions here complained of, the Sherman Law could

not override such exercise of state power. . . . [Since] the Sherman

Law . . . can have no greater potency than the Commerce Clause

itself, it must equally yield to state power drawn from the Twentyfirst Amendment.’’ 37

Following a review of the cases in this area, the Court has observed ‘‘that there is no bright line between federal and state powers over liquor. The Twenty-first Amendment grants the States virtually complete control over whether to permit importation or sale

of liquor and how to structure the liquor distribution system. Although States retain substantial discretion to establish other liquor

regulations, those controls may be subject to the federal commerce

power in appropriate situations. The competing state and federal

interests can be reconciled only after careful scrutiny of those concerns in a ‘concrete case.’ ’’ 38 Invalidating under the Sherman Act

a state fair trade scheme imposing a resale price maintenance policy for wine, the Court balanced the federal interest in free enterprise expressed through the antitrust laws against the asserted

state interests in promoting temperance and orderly marketing

conditions. Since the state courts had found the policy under attack

promoted neither interest signficantly, the Supreme Court experienced no difficulty in concluding that the federal interest prevailed.

Whether more substantial state interests or means more suited to

promoting the state interests would survive attack under federal

legislation must await further litigation.

Congress may condition receipt of federal highway funds on a

state’s agreeing to raise the minimum drinking age to 21, the

Twenty-first Amendment not constituting an ‘‘independent constitutional bar’’ to this sort of spending power exercise even though

Congress may lack the power to achieve its purpose directly. 39