Twenty-first Amendment: Repeal of Prohibition

The Twenty-first Amendment repealed Prohibition in 1933. Section 2 gave states broad power over alcohol coming across their borders, and that power still shapes liquor licensing. That power has limits, though: states can't use it to favor in-state businesses or to ignore the rest of the Constitution. In California, the state constitution gives alcohol licensing to the state, not to cities like Williams.

The text

The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Source: National Archives transcription Verified1

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.

Source: National Archives transcription Verified1

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.

Source: National Archives transcription Verified1

Section by section

• §1, repeal. "The eighteenth article of amendment to the Constitution of the United States is hereby repealed" Verified1.
• §2, state control. Transporting or importing liquor into a state "in violation of the laws thereof, is hereby prohibited" Verified1. Our reading: a state that stayed dry could rely on the Constitution itself to keep alcohol out.
• §3, conventions and a deadline. Ratification had to be "by conventions in the several States" within seven years Verified1.

History

By the end of the "dry decade" of the 1920s, the Eighteenth Amendment "had failed to eliminate the illegal manufacture and sale of alcoholic beverages within the United States" Verified4. Repeal became a 1932 campaign issue: Franklin D. Roosevelt "openly supported the Eighteenth Amendment's repeal" Verified4.

Congress proposed the amendment "on February 20, 1933." "On December 5, 1933, Acting Secretary of State William Phillips certified that the Amendment had been adopted by the requisite number of state conventions" Verified4.

Ratification by convention

The Senate amended the joint resolution "to provide for its submission to specially elected delegates in state ratifying conventions rather than state legislatures" Verified4. Our reading: conventions let voters choose delegates on the single question of repeal, rather than leaving it to legislatures elected on many issues. See Article V.

Section 2 and its limits

• No favoring in-state businesses. Michigan and New York let in-state wineries ship directly to consumers but barred out-of-state wineries. "Both States' laws discriminate against interstate commerce in violation of the Commerce Clause, and that discrimination is neither authorized nor permitted by the Twenty-first Amendment" (Granholm v. Heald, 544 U.S. 460 (2005)) Verified2. Tennessee's two-year residency rule for liquor store licenses "violates the Commerce Clause and is not saved by the Twenty-first Amendment" (Tennessee Wine & Spirits Retailers Assn. v. Thomas, 588 U.S. 504 (2019)) Verified3.
• No exception to equal protection. Oklahoma allowed sales of 3.2% beer to women at 18 but to men only at 21. The Court struck down the law. In its summary of the ruling: "The Court has never recognized that application of that Amendment can defeat an otherwise established claim under the Equal Protection Clause" (Craig v. Boren, 429 U.S. 190 (1976)) Verified6.
• How the drinking age became 21 everywhere. Congress didn't set a national drinking age. It withheld part of federal highway money from states that allowed drinking under 21. The Court upheld that: "encouragement to state action found in § 158 is a valid use of the spending power" (South Dakota v. Dole, 483 U.S. 203 (1987)) Verified7.

California

California's constitution gives the state "the exclusive right and power to license and regulate the manufacture, sale, purchase, possession and transportation of alcoholic beverages within the State" (Art. XX, §22) Verified5. It also says "no person under the age of 21 years shall purchase any alcoholic beverage" Verified5. See Article XX.

In Williams

• Licenses come from the state. A bar, restaurant or store in Williams that sells alcohol is licensed by the State of California under Article XX, §22, not by the city Verified5.
• The city's role is land use. Cities generally regulate where businesses can operate through zoning and permits. See Planning. What we couldn't verify: we haven't reviewed the Williams Municipal Code for alcohol-specific zoning rules, so we make no claim about what they say. Check with the city's planning staff.
• Age 21. The rule against selling to or buying by anyone under 21 is in California's own constitution, separate from the federal highway-funding condition upheld in Dole Verified5,7.

Common misconceptions

• "Section 2 lets a state do anything with alcohol." It doesn't override the Commerce Clause or equal protection Verified2,6.
• "Congress passed a law making 21 the national drinking age." It used highway funding to encourage states to adopt 21 Verified7.
• "The city issues liquor licenses." In California the state does Verified5.
• "Repeal made alcohol legal everywhere." Repeal handed the question back to the states; §2 let dry states stay dry Verified1.

Check yourself

Pick an answer for each question. You will see right away if it is right, and why.