TWENTY-FIRST AMENDMENT

REPEAL OF THE EIGHTEENTH AMENDMENT

CONTENTS

Page

Sections 1–3. ............................................................................................................................. 2269

Repeal of the Eighteenth Amendment .............................................................................. 2269

Effect of Repeal ............................................................................................................ 2269

Scope of Regulatory Power Conferred upon the States ........................................... 2269

Discrimination Between Domestic and Imported Products ............................. 2269

Regulation of Transportation and “Through” Shipments ................................. 2272

Regulation of Imports Destined for a Federal Area .......................................... 2273

Foreign Imports, Exports; Taxation, Regulation ............................................... 2273

Effect of Section 2 upon Other Constitutional Provisions ................................ 2274

Effect on Federal Regulation ...................................................................................... 2276

2267

REPEAL OF THE EIGHTEENTH AMENDMENT

TWENTY-FIRST AMENDMENT

SECTIONS 1–3. The eighteenth article of amendment to the

Constitution of the United States is hereby repealed.

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.

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.

REPEAL OF THE EIGHTEENTH AMENDMENT

Effect of Repeal

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

Scope of Regulatory Power Conferred upon the States

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

the Twenty-first 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. Modern cases, however, have recognized that “state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause.” 1

Initially, the Court upheld a California statute that exacted a

$500 annual license fee for the privilege of importing beer from other

1 Granholm v. Heald, 544 U.S. 460, 487 (2005).

2269
states and a $750 fee for the privilege of manufacturing beer,2 and

a Minnesota statute that prohibited a licensed manufacturer or 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.3 Also validated were retaliation laws prohibiting sale

of beer from states that discriminated against sale of beer from the

enacting state.4

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

5

that, “[p]rior 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.” Because the Amendment was viewed as

conferring on states an unconditioned authority to prohibit totally

the importation of intoxicating beverages, it 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 the Court upheld a state statute regulating the price of intoxicating liquors, asserting that the

Twenty-first Amendment bestowed upon the states broad regulatory power over the liquor sales within their territories.8 The Court

also noted that states are not totally bound by traditional Commerce Clause limitations when they restrict the importation of intoxicants destined for use, distribution, or consumption within their

2 State Board of Equalization v. Young’s Market Co., 299 U.S. 59 (1936).

3 Mahoney v. Triner Corp., 304 U.S. 401 (1938).

4 Brewing Co. v. Liquor Comm’n, 305 U.S. 391 (1939) (Michigan law); Finch &

Co. v. McKittrick, 305 U.S. 395 (1939) (Missouri law).

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

6 299 U.S. at 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).

8 384 U.S. at 42. See United States v. Frankfort Distilleries, 324 U.S. 293, 299

(1945) and Nippert v. City of Richmond, 327 U.S. 416 (1946).

2270 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT
borders.9 In such a situation the Twenty-first Amendment demands wide latitude for regulation by the state.10 The Court added

that there was nothing in the Twenty-first 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

More recent cases undercut the expansive interpretation of state

powers in Young’s Market and the other early cases. The first step

was to harmonize Twenty-first Amendment and Commerce Clause

principles where possible by asking “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 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.” 13 But the Court eventually came

to view the Twenty-first Amendment as not creating an exception

to the commerce power. “[S]tate regulation of alcohol is limited by

the nondiscrimination principle of the Commerce Clause,” the Court

stated in 2005. Discrimination in favor of local products can be upheld only if the state “advances a legitimate local purpose that cannot be adequately served by reasonable nondiscriminatory alterna9 384 U.S. at 35. See, e.g., Hostetter v. Idlewild Bon Voyage 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 added 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.

11 384 U.S. at 47.

12 Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 714 (1984). “[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.’ ” 467 U.S. at 715 (quoting California Retail Liquor Dealers Ass’n

v. Midcal Aluminum, 445 U.S. 97 (1980)).

13 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).

AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 2271
tives.” 14 This interpretation stemmed from the Court’s conclusion

that the Twenty-first Amendment restored to states the powers that

they had possessed prior to Prohibition “to maintain an effective

and uniform system for controlling liquor by regulating its transportation, importation, and use” in a manner that did not discriminate against out-of-state goods.15

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 bypass 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 Amendment was

set in motion by Ziffrin, Inc. v. Reeves 16 in which a Kentucky statute that prohibited 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,” 17 the Court proceeded to

found its ruling largely upon decisions antedating the Amendment

that sustained similar state regulations as a legitimate exercise of

the police power not unduly burdening interstate commerce. In light

of the contemporaneous cases enumerated in the preceding topic construing the Twenty-first Amendment 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 18 and Carter v. Virginia,

19 in which, with14 Granholm v. Heald, 544 U.S. 460, 487, 489 (2005) (invalidating Michigan and

New York laws allowing in-state but not out-of-state wineries to make direct sales

to consumers). This is the same test the Court applies outside the context of alcoholic beverages. See Maine v. Taylor, 477 U.S. 131, 138 (1986) (once discrimination

against interstate commerce is established, “the burden falls on the State to demonstrate both that the statute ‘serves a legitimate local purpose,’ and that this purpose could not be served as well by available nondiscriminatory means”) (quoting

Hughes v. Oklahoma, 441 U.S. 322, 336 (1979)).

15 460 U.S. at 484. According to Justice Kennedy’s opinion for the Court, these

pre-Prohibition state powers were framed by the Wilson and Webb-Kenyon Acts, and

the Twenty-first Amendment evidenced a “clear intention of constitutionalizing the

Commerce Clause framework established under those statutes.” Id.

16 308 U.S. 132 (1939).

17 308 U.S. at 138.

18 314 U.S. 390 (1941).

19 321 U.S. 131 (1944). See also Cartlidge v. Raincey, 168 F.2d 841 (5th Cir. 1948),

cert. denied, 335 U.S. 885 (1948).

2272 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT
out 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.20

Regulation of Imports Destined for a Federal Area.—

Importation of alcoholic beverages into a state for ultimate delivery at a National Park located in the state 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 that 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 Alcoholic Beverage

Control Act to a retail liquor dealer doing business in the Park.21

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 labeled as being restricted for use only within the enclave.22

Foreign Imports, Exports; Taxation, Regulation.—The Twentyfirst 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 liquor while it remains “in

unbroken packages in the hands of the original importer and prior

20 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 $1,000 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.

21 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. “[A]bsent 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. at 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).

22 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).

AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 2273
to [his] resale or use” thereof.23 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.24 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.” 25

Effect of Section 2 upon Other Constitutional Provisions.—

Notwithstanding the 1936 assertion that “[a] classification recognized by the Twenty-first Amendment cannot be deemed forbidden

by the Fourteenth,” 26 the Court has now in a series of cases acknowledged that § 2 of the Twenty-first Amendment did not repeal provisions of the Constitution adopted before ratification of the Twentyfirst, 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,

27 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 Twentyfirst 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 Twentyfirst Amendment suggests that it qualifies individual rights protected by the Bill of Rights and the Fourteenth Amendment where

23 Department 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).

24 Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S. 324 (1964).

25 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).

26 State 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 distinguished 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).

27 429 U.S. 190 (1976).

2274 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT
the sale or use of liquor is concerned.’ ” 28 The holding on this point

is “that the operation of the Twenty-first Amendment does not alter the application of the equal protection standards that would otherwise govern this case.” 29 Other decisions reach the same result

but without discussing the application of the Amendment.30 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.” 31

The Court departed from this line of reasoning in California v.

LaRue,

32 in which it 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 adduced at the public hearings which resulted in the rules demonstrating the antisocial 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,33

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 Twentyfirst 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.34

A much broader ruling resulted when the Court considered the

constitutionality of a state regulation banning topless dancing in

28 429 U.S. at 206 (quoting P. BREST, PROCESSES OF CONSTITUTIONAL DECISIONMAKING—

CASES AND MATERIALS 258 (1975).

29 429 U.S. at 209–210.

30 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)).

31 Larkin v. Grendel’s Den, 459 U.S. 116, 122 n.5 (1982).

32 409 U.S. 109 (1972).

33 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).

34 409 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 Twentyfirst 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.”

AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 2275
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.” 35 This recurrence to the greater-includes-the-lesser-power argument, relatively

rare in recent years,36 would if it were broadly applied give the states

in the area of regulation of alcoholic beverages a review-free discretion of unknown scope.

In 44 Liquormart, Inc. v. Rhode Island,

37 the Court disavowed

LaRue and Bellanca, and reaffirmed that, “although the Twentyfirst Amendment limits the effect of the dormant Commerce Clause

on a state’s regulatory power over the delivery or use of intoxicating beverages within its borders, ‘the Amendment does not license

the States to ignore their obligations under other provisions of the

Constitution,’ ” 38 and therefore does not afford a basis for state legislation infringing freedom of expression protected by the First Amendment. There is no reason, the Court asserted, for distinguishing between freedom of expression and the other constitutional guarantees

(e.g., those protected by the Establishment and Equal Protection

Clauses) held to be insulated from state impairment pursuant to

powers conferred by the Twenty-first Amendment. The Court hastened to add by way of dictum that states retain adequate police

powers to regulate “grossly sexual exhibitions in premises licensed

to serve alcoholic beverages.” “Entirely apart from the Twenty-first

Amendment, the State has ample power to prohibit the sale of alcoholic beverages in inappropriate locations.” 39

Effect on Federal Regulation

The Twenty-first Amendment does not oust all federal regulatory power affecting transportation or sale of alcoholic beverages.

35 New York State Liquor Auth. v. Bellanca, 452 U.S. 714, 717 (1981).

36 For 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). For use 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); this use of the argument in Posadas was disavowed in 44 Liquormart,

Inc. v. Rhode Island, 517 U.S. 484 (1996). See also 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 Twentyfirst Amendment, by federal policies promoting access to cable TV).

37 517 U.S. 484 (1996) (statutory prohibition against advertisements that provide the public with accurate information about retail prices of alcoholic beverages

is not shielded from constitutional scrutiny by the Twenty-first Amendment).

38 517 U.S. at 516 (quoting Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 712

(1984)).

39 517 U.S. at 515.

2276 AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT
Thus, the Court held, the Amendment does not 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.40 In a concurring 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. . . . [Because] the Sherman Law . . . can have no

greater potency than the Commerce Clause itself, it must equally

yield to state power drawn from the Twenty-first Amendment.” 41

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.’ ” 42 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.

Because the state courts had found that the policy under attack promoted neither interest significantly, 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 Twentyfirst 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.43

40 United States v. Frankfort Distilleries, 324 U.S. 293, 297–99 (1945).

41 324 U.S. at 301–02. For application of federal laws, see William Jameson &

Co. v. Morgenthau, 307 U.S. 171 (1939); Kiefer-Stewart Co. v. Jos. 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).

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

(1980).

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

AMDT. 21—REPEAL OF EIGHTEENTH AMENDMENT 2277