At last, we get to the 21st Amendment. Section 1 simply repeals the 18th Amendment (“Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”). Section 2 of the 21st Amendment provides, “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.” As noted in Part 8, the problem with Prohibition was that it tried to nationalize alcohol prohibition by imposing it on communities that didn’t want it. In other words, not only was alcohol regulation traditionally a local affair, but there was good reasons why. The 21st Amendment essentially amounted to a “do over”—it was intended to restore the constitutional and political balance that had been upset by the 18th Amendment by removing the federal government from interfering in local affairs regarding alcohol and reinstating state police power authority over alcohol regulation.
In addition, the 21st Amendment also constitutionalized the Wilson and Webb-Kenyon Acts, thereby assuring dry states that the public sentiment that led to the repeal of Prohibition wouldn’t sweep within it a repeal of the Wilson and Webb-Kenyon Acts which had provided assurance to dry states that they wouldn’t be forced to accept interstate alcohol shipments. By contrast, there is nothing in the history that led up to the ratification of the 21st Amendment to suggest that there would have been any reason to give the states plenary power over interstate commerce regarding alcohol. This Part will discuss §2, which was intended to reinstate the regime that prevailed prior to the 18th Amendment. The next entry will discuss proposed but never enacted §3, which as will be seen, was rejected because it was inconsistent with the purpose of the 21st Amendment to restore the constitutional balance that had been interrupted by national prohibition.
Section 2, therefore, was designed aid dry states in the valid exercise of their police power “constitutionalizing” the statutory protections previously afforded by the national government to the states. “The wording of §2 … closely follows the Webb-Kenyon and Wilson Acts, expressing the framers’ clear intention of constitutionalizing the Commerce Clause framework established under those statutes.” Craig, 429 U.S. at 205-06. In particular, dry states were concerned about the continued political and constitutional validity of Webb-Kenyon following the repeal of Prohibition, so dry states desired that their ability to remain dry be written into the Constitution to prevent against backsliding by Congress or the Supreme Court.
Although the constitutionality of Webb-Kenyon was upheld in Clark Distilling, at the time of its enactment there were serious questions about its validity. Indeed, President Taft initially vetoed the law because he considered it unconstitutional, 49 Cong. Rec. 4291 (1913) a view that was shared by Attorney General Wickersham at the time, 30 Op. Att’y Gen. 88 (1913). It was also noted that the Supreme Court’s opinion in Clark Distilling was a “divided opinion,” that there had been changes in the membership of the Court that cast further doubt on the vitality of Clark Distilling, in that Justice Sutherland had been in the Senate when Webb-Kenyon was passed and had argued against its constitutionality at that time. 76 Cong. Rec. 4170 (Statement of Sen. Borah), and that there was continuing debate about the constitutionality of Webb-Kenyon, see id. (expressing dry states’ fear that Webb-Kenyon “might very well be held unconstitutional upon a re-presentation of it”). Senator Borah also noted that from its very inception, there had been aggressive legislative and litigation efforts to overturn Webb-kenyon.
Senator Blaine expressed nearly identical sentiments in his remarks: “In [Clark] there was a divided opinion. There has been a divided opinion in respect to the earlier cases, and that division of opinion seems to have come down to a very late day. So to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line.” 76 Cong. Rec. 4141 (Statement of Sen. Blaine).
Senator Borah similarly explained that he was “rather uneasy about leaving the Webb-Kenyon Act to the protection of the Supreme Court of the United States,” Id. at 4171, nor was he comfortable “rely[ing] upon the Congress … to maintain indefinitely the Webb-Kenyon law ” 76 Cong. Rec. 4170 (Statement of Sen Borah). To remove these constitutional and political uncertainties, the Amendment’s sponsor Senator Borah explained that §2 would “incorporat[e Webb-Kenyon] permanently in the Constitution of the United States.” 76 Cong. Rec. 4172 (statement of Sen. Borah). As Judge Easterbrook wrote in Bridenbaugh, “Like the Wilson Act and the Webb-Kenyon Act before Prohibition, §2 enables a state to do to importation of liquor-including direct deliveries to consumers in original packages-what it chooses to do to internal sales of liquor, but nothing more.” Bridenbaugh, 227 F.3d at 853.
Finally, the legislative history is rife with references to the fact that what this was about was the power of the states to effectuate their police power. Borah states, for instance, “We hear a great deal in these days about the eighteenth Amendment destroying the police powers of the states. I venture to say that anyone who has taken the trouble to familiarize himself with the destruction of the police powers of the States relative to the liquor question will have to conclude that the police powers had been destroyed prior to the adoption of the eighteenth amendment, taken away from the States prior to that time through the decisions of the Supreme Court of the United States and the constant and persistent attack of the liquor interests upon the rights of the States to be dry and to exercise their police powers to the end that they might be dry.”
There is no indication that §2 was intended to anything more than assist dry states in the exercise of their police powers by treating interstate liquor the same as in-state. It was well-established by this time that the state police powers did not provide a license to discriminate, and there is no indication that §2 was intended to give wet states new, unprecedented, unmentioned, and illogical powers to erect protectionist barriers against other states’ products.
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