PROHIBITION OF INTOXICATING LIQUORS

EIGHTEENTH AMENDMENT

SECTIONS 1–3. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation

thereof from the United States and all territory subject to the

jurisdiction thereof for beverage purposes is hereby prohibited.

The Congress and the several States shall have concurrent

power to enforce this article by appropriate legislation.

This article shall be inoperative unless it shall have been

ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within

seven years from the date of the submission hereof to the States

by the Congress.

PROHIBITION

Validity of Adoption

Cases relating to this question are presented and discussed under Article V.

Enforcement

Cases produced by enforcement and arising under the Fourth

and Fifth Amendments are considered in the discussion appearing

under the those Amendments.

Repeal

The Eighteenth Amendment was repealed by the Twenty-first

Amendment, and titles I and II of the National Prohibition Act 1

were subsequently specifically repealed by the act of August 27, 1935.2

Federal prohibition laws effective in various Districts and Territories were repealed as follows: District of Columbia-April 5, 1933,

1 Ch. 85, 41 Stat. 305.

2 Ch. 740, 49 Stat. 872.

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and January 24, 1934; 3 Puerto Rico and Virgin Islands-March 2,

1934; 4 Hawaii-March 26, 1934; 5 and Panama Canal Zone-June 19,

1934.6

Taking judicial notice of the fact that ratification of the Twentyfirst Amendment was consummated on December 5, 1933, the Supreme Court held that the National Prohibition Act, insofar as it

rested upon a grant of authority to Congress by the Eighteenth Amendment, thereupon become inoperative, with the result that prosecutions for violations of the National Prohibition Act, including proceedings on appeal, pending on, or begun after, the date of repeal,

had to be dismissed for want of jurisdiction. Only final judgments

of conviction rendered while the National Prohibition Act was in

force remained unaffected.7 Likewise a heavy “special excise tax,”

insofar as it could be construed as part of the machinery for enforcing the Eighteenth Amendment, was deemed to have become inapplicable automatically upon the Amendment’s repeal.8 However, liability on a bond conditioned upon the return on the day of trial of

a vessel seized for illegal transportation of liquor was held not to

have been extinguished by repeal when the facts disclosed that the

3 Ch. 19, 48 Stat. 25; ch. 4, 48 Stat. 319.

4 Ch. 37, 48 Stat. 361.

5 Ch. 88, 48 Stat. 467.

6 Ch. 657, 48 Stat. 1116.

7 United States v. Chambers, 291 U.S. 217, 222–26 (1934). See also Ellerbee v.

Aderhold, 5 F. Supp. 1022 (N.D. Ga. 1934); United States ex rel. Randall v. United

States Marshal, 143 F.2d 830 (2d Cir. 1944). Because the Twenty-first Amendment

contains “no saving clause as to prosecutions for offenses therefore committed,” these

holdings were rendered unavoidable by virtue of the well-established principle that

after “the expiration or repeal of a law, no penalty can be enforced, nor punishment

inflicted, for violations of the law committed while it was in force. . . .” The General

Pinkney, 9 U.S. (5 Cr.) 281, 283 (1809), quoted in United States v. Chambers, 291

U.S. at 223.

8 United States v. Constantine, 296 U.S. 287 (1935). The Court also took the

position that, even if the statute embodying this “tax” had not been “adopted to penalize violations of the Amendment,” but merely to obtain a penalty for violations of

state liquor laws, “it ceased to be enforceable at the date of repeal,” for with the

lapse of the unusual enforcement powers contained in the Eighteenth Amendment,

Congress could not, without infringing upon powers reserved to the states by the

Tenth Amendment, “impose cumulative penalties above and beyond those specified

by State law for infractions of . . . [a] State’s criminal code by its own citizens.”

Justice Cardozo, joined by Justices Brandeis and Stone, dissented on the ground

that, on its face, the statute levying this “tax” was “an appropriate instrument of

. . . fiscal policy. . . . Classification by Congress according to the nature of the calling affected by a tax . . . does not cease to be permissible because the line of division between callings to be favored and those to be reproved corresponds with a

division between innocence and criminality under the statutes of a state.” Id. at 294,

296, 297–98. In earlier cases, the Court nevertheless recognized that Congress also

may tax what it forbids and that the basic tax on distilled spirits remained valid

and enforceable during as well as after the life of the Amendment. See United States

v. Yuginovich, 256 U.S. 450, 462 (1921); United States v. Stafoff, 260 U.S. 477 (1923);

United States v. Rizzo, 297 U.S. 530 (1936).

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trial took place in 1931 and had resulted in conviction of the crew.

The liability became complete upon occurrence of the breach of the

express contractual condition and a civil action for recovery was viewed

as unaffected by the loss of penal sanctions.9

9 United States v. Mack, 295 U.S. 480 (1935).

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