Is It Time for a 28th Amendment to the U.S. Constitution to Regulate Marijuana Like Alcohol?

There is a certain appeal to the sound-bite of the pro marijuana legalization forces when they claim they want to “regulate marijuana like alcohol,” but the devil is always in the details.

The conversation about regulating marijuana like alcohol is incomplete without mentioning the unique constitutional nature of alcohol regulation. A previous post suggested that the marijuana debate can serve as a refresher on how and why alcohol is regulated like it is today. Those sincerely interested in advocating that marijuana be regulated like alcohol should consider supporting passage of a 28th Amendment to the Constitution patterned after the 21st Amendment. The 21st Amendment repealed the federal prohibition of the manufacture, sale and transportation of alcohol but allowed states to continue to restrict or prohibit it. The 21st Amendment also set up the state-based regulatory structure used for alcohol today.

 The United States Was Unified on the Passage of the 21st Amendment

An overlooked highlight of the 21st Amendment was the fact that ratification secured national consensus with its passage. States that wanted to remain “dry” and states that wanted to allow alcohol throughout the state both supported the 21st Amendment. This enthusiasm was reflected in polling from around the time of the 21st Amendment. In 1932, 74 percent of respondents indicated they were for repeal of the 18th Amendment — and in fact, this percentage matches perfectly with the official vote on repeal in the 39 states that put prohibition up for a vote after the repeal of national prohibition. (1)



And there was no buyer’s remorse for giving states the right to regulate alcohol as they wished. A poll from Gallup in December 1936 asked “If the question of national prohibition should come up again, would you vote to make the country dry?” Sixty-seven percent of respondents answered “no” to that question. (2)  Contrast this to the recent experience in Colorado where stories of regret over their marijuana legalization efforts continue with nearly 50 percent of Coloradans still against legalization. (3)


[2] Roper Center Public Opinion Archives. USGALLUP.DC2036.R01; See also:


Marijuana legalization in 2016 is a far more confusing polling question. The mixing of polling questions and separate issues related to medical marijuana, decriminalization of marijuana offenses and full scale marijuana legalization often create uncertainty with the polling related to legalization. For example, there is much broader support for the concept of marijuana as medicine than for the complete recreational legalization and commercialization of marijuana. The Gallup poll and other surveys have recently found that recreational marijuana legalization support floats between 49 and 58 percent, which is far less than the 75 percent national consensus that was achieved in 1933 to create America’s system of alcohol regulation.

The Lack of a High Profile Opponent Turned Proponent

One of the remarkable features of the passage of the 18th Amendment and the subsequent movement for passage of the 21st Amendment to repeal Prohibition was the high profile role of leading industrialists and businessmen for both laws.

Leaders such as John D. Rockefeller, Jr. strongly pushed for alcohol prohibition. They were strong supporters of the Anti-Saloon league and Temperance movements. Whether it was for moral, temperance or business reasons, Rockefeller and other leading industrialists pushed the cause of prohibition. A sober workforce or a moral society motivated different leaders in the pre-18th Amendment cause. However, the role of Rockefeller, the richest man of his day, was unparalleled.

Rockefeller was a very high profile critic of alcohol and supported passage of prohibition. After the goal of national prohibition was achieved he eventually became deeply disturbed by the widespread civil disobedience and flouting of the law by society. He came to view the 18th Amendment as a mistake and his letter published on the front page of the New York Times on June 7, 1932 changing his position was a powerful turning point for the debate on the repeal of the 18th Amendment.

In modern times, to replicate Rockefeller’s influence there would need to be someone as economically wealthy and powerful as Bill Gates or Warren Buffet. Imagine Gates or Buffet publically pushing for passage of prohibition, then publically disclaiming their previous support, supporting Repeal, and impartially funding a thoughtful public administration study to provide guidance to government bodies as they turn to regulating a formerly prohibited product.

Rockefeller did not end his involvement in the alcohol debate with a letter to the New York Times disclaiming his previous position. Rockefeller hired researchers and funded the seminal treatise on how to regulate a formerly banned product, Toward Liquor Control. The Center for Alcohol Policy has republished an unabridged version of this book to educate all about the lessons. In Toward Liquor Control, Rockefeller’s researchers, Raymond Fosdick and Albert Scott, studied alcohol systems around the world and suggested different models for states and the federal government to consider as they approached creating systems to regulate alcohol. Concepts in use today such as state liquor stores, tied house laws and other regulation that provides for separation of the alcohol producers, wholesalers and retailers, education programs and retail licensing distinctions all flow from the work of this book. A similar unbiased treatise published by someone not invested in the marijuana industry is lacking at this point.

The Constitutional Amendment Process Is Designed To Forge Consensus

It is not common to amend the Constitution but the amendment process lays out a plan to ensure that all Americans at least have a voice in the system. The current marijuana state-by-state debate on the other hand does not. To amend the United States Constitution, an amendment starts in Congress and requires passage by a two-thirds vote. The President has no role. Neither does the judicial branch. After passing Congress, an amendment must be passed by three quarters of the states. This can be by ballot, state conventions or convening of state legislatures.

The 21st Amendment required the amendment to be ratified within seven years of its passage. It also specified that state conventions (not state legislatures) would be the method to ratify the amendment.

The 21st Amendment was introduced on December 6, 1932. It passed Congress on February 20, 1933. Michigan was the first state to ratify it on April 10, 1933. Many states quickly followed with passage. The Amendment was officially ratified when Utah ratified the amendment on December 5, 1933. Utah passed this Amendment not necessarily to legalize alcohol, but to ensure that they would be able to control alcohol regulation.

The problems of the 18th Amendment and National Prohibition were a top of mind political issue in the first third of the 20th Century. The alternating 50.1 percent forcing communities to take various “wet” or “dry” positions and oscillating back and forth created the first “single-issue” politics in this country. The 21st Amendment process made sure that the previous ping pong debate was firmly resolved with national consensus allowing each state to handle the issue the way the local population wanted without federal interference.

Protections of Constitutional Amendment

Section two of the 21st Amendment contains an important provision that has created the atmosphere for resolution of alcohol debates.  (4)


[ 4] 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 provision has been used to help create fifty different state markets for alcohol in the United States. It has created a system where 17 states serve as the wholesaler and/or retailer for alcohol and all 50 states have various refinements to how they license those that produce the alcohol, those that distribute it and those that retail it. The Twenty-first Amendment granted the States “virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system.” Cal. Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc., 445 U.S. 97,110 (1980).

Without a constitutional amendment for marijuana, states risk their regulatory structures being or declared invalid. For example, a state law banning alcohol would fit nicely into the protections of state rights of section two of the 21st Amendment. However a federal law would have no difficulty trumping and preempting all state laws on marijuana. Whether the federal government loosens or tightens marijuana regulation, there is nothing for states to protect their prerogatives that approaches the protections of the 21st Amendment.

The Lessons From the Wilson Act and the Webb-Kenyon Act

Some may feel a constitutional amendment is overkill and that federal legislation is sufficient to regulate. However, history again is our guide. Those seeking a true balance will realize the tentativeness of federal legislation to settle this controversial issue. The concerns of the federal government preempting a pro-marijuana state or frustrating the regulation of an anti-marijuana state is not a theoretical or alarmist concern. The very need for the 18th and then 21st Amendment grew out of this very concern.(5)  Those states that wanted to remain “dry” or tightly regulate alcohol were frustrated by litigation and constitutional assertions against the states striking down their laws. Because alcohol moves in interstate commerce, constitutional protections attach to it. Congress passed the Wilson Act in 1890 as an attempt to provide protections for the states that sought to regulate alcohol. (6)  However, court cases narrowed this law significantly. Congress again intervened with federal legislation with the Webb-Kenyon of 1913 to provide further protections from federal power. (7)


[5] “One of the most important, as well as one of the most difficult problems in the disputed zone between the police powers of the commonwealths of the United States and Congressional authority over interstate commerce, is as to validity of legislation which attempts to restrict the importation into a state of shipments of intoxicating liquor.” Rogers, Virginia Law Review, Vol 4. No. 3, (Dec 1916) p.174.
[6] 27 USC 121 All fermented, distilled, or other intoxicating liquors or liquids transported into any State or Territory or remaining therein for use, consumption, sale, or storage therein, shall upon arrival in such State or Territory be subject to the operation and effect of the laws of such State or Territory enacted in the exercise of its police powers, to the same extent and in the same manner as though such liquids or liquors had been produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original packages or otherwise.
[7] 27 USC 122   The shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, which said spirituous, vinous, malted, fermented, or other intoxicating liquor is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, is prohibited.

Nevertheless, these federal statutes did not resolve the “ping-pong” debate of wet and dry across the country. Rather the passages of these federal laws and the subsequent erosions of these laws in court cases helped serve as motivation for those seeking stronger protection. Because of the frustrations at the vitality of federal statutes to resolve this issue, the strongest protections were sought after- constitutional protection- in order to properly ensure the right to regulate alcohol. That is a theme for both passage of the 18th and 21st Amendment.

The Future: Full Embrace of Alcohol Regulation? Or Lip Service

The forces that seek to legalize “marijuana like alcohol” appear to be pursuing a catchy public relations slogan, but the substance behind their rhetoric is incomplete without a plan for a constitutional amendment that would allow for comprehensive and effective regulation and revenue collection by the States. (8)   State laws allowing or prohibiting marijuana are both at risk without constitutional protections.  The history of alcohol legislation prior to the 18th Amendment shows that federal legislation is a tenuous barrier for states against federal storms. Ironically, the pro-marijuana forces risk losing all they purport to gain in a few states without constitutional protection. These forces risk taking an unfortunate short-cut to a long-term, time-tested national consensus that the alcohol debate eventually achieved in order to pursue short term wins. This short term focus appears to be a repeat of the 18th Amendment strategy of the prohibitionists working their narrow constituency rather than the ultimate broad, winning 21st Amendment coalition which brought wet, dries and those in between into the debate. Without a constitutional amendment for marijuana, history likely will repeat itself with the marijuana debate bouncing back and forth like a metronome.


Paul Pisano, NBWA

[8] The lack of pursuing a constitutional amendment raises obvious questions. Do these advocates truly want to regulate marijuana like alcohol? And why is alcohol regulation the default discussion on the marijuana debate? Should marijuana instead be regulated like tobacco? Or like prescription drugs? Or over-the-counter drugs? Do consumers drinking a beer or one glass of wine with dinner seek to get drunk? Does a person using marijuana not seek to get buzzed? These are all important policy decisions that do not lend itself well to debate limiting ballot initiatives but remain important issues for those interested in long-term workable policies and a framework for regulating marijuana. 

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