Today’s guest column is brought to you by Brannon P. Denning, the Starnes Professor Law at Cumberland School of Law in Birmingham, Alabama to celebrate Constitution Day on September 17th. Professor Denning is also a member of the Advisory Council to the Center for Alcohol Policy.
Celebrating our Constitution of Alcohol Regulation
Constitution Day celebrations tend to focus on subjects like the 1st or 14th Amendments, or the Supreme Court and its recent work product. But parts of our Constitution that work well tend to get less attention than they deserve from members of the public. Consider the American experience with alcohol regulation, which is unique because it is the subject of two constitutional amendments.
In a recent U.S. Supreme Court opinion holding that the occasional (or even frequent) user of controlled substance could not be permanently disarmed, Justice Neil Gorsuch rejected the government’s analogy between the current law and earlier laws placing legal disabilities on “habitual drunkards.” The latter, he argued, meant not “drinkers” or even “heavy drinkers,” but rather someone whose abuse of alcohol rendered them unable to manage their own affairs, made them dangerous to others, or both. He continued:
Had habitual drunkard laws applied to those who simply drank regularly, many notable early Americans could have faced trouble. John Adams took “a tankard of hard cider” with his “daily breakfast.” . . . Some say James Madison “consumed a pint of whiskey daily.” . . . George Washington often drank three glasses of madeira in the evening—“not enough to be considered a heavy drinker in his day.” . . . Thomas Jefferson enjoyed “3 or 4 glasses [of wine] at dinner.” . . . In fact, just a few days before the framers signed the Constitution, a farewell party gathered for General Washington at Philadelphia’s City Tavern where 55 guests are said to have ordered 54 bottles of madeira, 60 bottles of wine, 8 bottles of “Old stock,” 22 bottles of porter, 8 bottles of cider, 12 bottles of beer, and 7 large bowls of punch.
By the late nineteenth century, however, America’s drinking culture, along with the proliferation of the much-maligned saloon, was beginning to be perceived as a real social problem—one particularly affecting women and children. States sought to exercise power to regulate the importation and sale of alcohol within their borders; however, they were often powerless to stop it at the state line because of restrictions the Constitution placed on their ability to regulate products moving in interstate commerce by the so-called “dormant commerce clause doctrine.”
At first, states sought aid from Congress, and secured passage of laws passed under Congress’s authority to regulate interstate commerce and permit what the limits on state regulatory power would otherwise prohibit. Those in the temperance movement worried that statutes could be repealed and so sought a more permanent guarantee, one that allowed them to set alcohol policy not only in their states, but in all states. The result was the 18th Amendment, proposed in 1917 and ratified in 1919; support in part was aided by America’s entry into the First World War and the framing of temperance as a wartime imperative. The Volstead Act followed, which prohibited the manufacture, sale, and transport of spirits, beer, and wine.
While there were public health benefits that accrued from Prohibition, those were arguably offset by the criminalization of an activity enjoyed by millions of Americans, the concomitant necessity and expense of its enforcement, and, of course, the emergence of a black market run by organized crime whose disputes among themselves became increasingly violent. The popularity of Prohibition began to decline during the 1920s and a new social movement—almost a mirror image to the one that had advocated for Prohibition—emerged, sought a repeal of Prohibition, and gained momentum. During his presidential campaign in 1932, Franklin Roosevelt called for repeal of the Volstead Act and the 18th Amendment. Popular sentiment had shifted. On December 5, 1933, the 21st Amendment was ratified—the only constitutional amendment to have repealed another constitutional amendment. And the only constitutional amendment ratified by the special ratifying conventions authorized by the Constitution’s Article V amendment process, rather than by state legislatures. (This choice was likely intended to sidestep the Bootlegger and Baptist coalitions in state legislatures that might have prevented legislative ratification.)
During the congressional debates over the text of the amendment, one issue occupied much of the conversation: who would be primarily responsible for alcohol regulation, the states or the federal government? Section 2 settled the question definitively. It reads “[t]he transportation or importation into any State, Territory, or possession of the United States, in violation of the laws thereof, is prohibited.” Thus Section 2 enshrined into the Constitution what we might call “alcohol federalism” wherein each state was entitled to enact its own regulatory preferences from very wet to bone dry.
But what should those regulatory regimes look like? There was little consensus beyond a lack of appetite, even in wet states, for a return to the days of the saloon. Guidance, however, came from an unlikely source. John D. Rockefeller was a committed teetotaler, but recognized his countrymen felt differently, so he commissioned Raymond Fosdick and Albert Scott to study various regulatory regimes; their book, Towards Liquor Control, remains an invaluable resource for legislators, regulators, lawyers, and anyone playing a role in shaping state alcohol policy.
We tend to preoccupy ourselves these days with parts of the Constitution that we feel do not work as they should, or that some argue are ill-suited to the problems of either modern governance or modern life. But on this Constitution Day, let’s take a moment to celebrate one of the great constitutional successes. The Center for Alcohol Policy, which I serve on the Board of Advisors, has continuously found that Americans overwhelmingly say they are satisfied with the alcohol laws in their state. We thus owe a debt of gratitude to the framers of the 21st Amendment who wisely understood the importance of letting state and local communities set alcohol policy.
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