Early Federal and State Prohibition Laws

prev | next

Eighteenth Amendment

Section 1:

After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2:

The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3:

This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

Before the Civil War, several states enacted laws that restricted or banned the manufacture and sale of alcoholic beverages statewide.1 However, by the war’s end, most of these states had repealed or weakened their prohibition laws.2 In the late 1800s, a resurgent temperance movement prompted the enactment of new statewide bans or restrictions on the liquor traffic.3 Producers and sellers of alcoholic beverages challenged some of these state prohibition laws in federal court, contending that they violated various provisions of the Constitution, including the Commerce Clause.4

In evaluating constitutional challenges to late nineteenth century state prohibition laws, the Supreme Court confirmed the states’ power to prohibit the intrastate manufacture and sale of alcoholic beverages.5 However, the Court held that the Commerce Clause prevented the states from banning the importation or initial sale of out-of-state beverages that remained in their original packages.6 The Court decided that, absent contrary federal law, such state bans impermissibly burdened interstate commerce.7

Responding to concerns that the Supreme Court’s decisions would prevent “dry” states from enforcing their prohibition laws fully, Congress enacted various statutes that specifically subjected imported alcoholic beverages to state regulation.8 For instance, the Webb-Kenyon Act of 1913 effectively authorized the states to restrict the direct shipment of imported alcoholic beverages to consumers for personal use.9 In 1917, Congress enacted the Reed Amendment to penalize anyone who imported alcoholic beverages into a “dry” state for personal use by subjecting them to imprisonment or payment of a fine.10

In addition to facilitating state prohibition efforts, Congress passed nationwide laws restricting the production and sale of alcoholic beverages during the United States’ participation in World War I.11 Wartime prohibition laws were ostensibly designed to preserve grain and other food ingredients for soldiers’ provisions. For instance, in May 1917, one month after declaring war on Germany, Congress prohibited the sale of alcoholic beverages to soldiers in uniform.12 Three months later, Congress enacted the Food Control Act or “Lever Act,” which prohibited liquor producers from using food materials to manufacture distilled alcoholic beverages.13 The President, acting pursuant to authority delegated to him in the Act,14 proclaimed restrictions on the production of less potent beverages, including beer.15

In November 1918, about two months before the states ratified the Eighteenth Amendment—and a little more than a year before Prohibition took effect—Congress enacted the War-Time Prohibition Act.16 The Act banned the sale of “intoxicating” alcoholic beverages until the President declared an end to the country’s mobilization for World War I.17 Charged with enforcing the Act, the Commissioner of Internal Revenue determined that “a beverage containing as much as one-half of one per centum of alcohol by volume would be regarded as intoxicating.” 18 Thus, even before the states ratified the Eighteenth Amendment, the federal government had imposed stringent nationwide restrictions on the liquor trade to facilitate state prohibition laws and support the nation’s efforts in World War I.

1: See .
2: See id.
3: By April 1917, twenty-six of the forty-eight states had enacted such restrictions. Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev.1, 5 n.6 (2006); Anti-Saloon League Year Book 1917, 5–6 (Ernest H. Cherrington ed.) (estimating that 55 million people in the United States lived under prohibition laws in March 1917). See also Post, supra, at 177–81 tbl. 2 (listing, for each state with statewide prohibition laws in 1918, the “activities prohibited,” “substances prohibited,” and “notable exceptions” for noncommercial use). Even the remaining “wet” states generally allowed local governments to exercise some form of the “local option” and restrict the liquor trade within their boundaries. Id. at 5 n.6, 182–83 tbl. 3 (listing, for each state without a statewide prohibition law, the “type of regulation” (e.g., local option) and “activities that may be regulated” (e.g., manufacture and sale)).
4: E.g., Bowman v. Chi. & Nw. Ry. Co., 125 U.S. 465, 498 (1888). Although the Commerce Clause empowers Congress to pass federal laws, it also limits state authority to regulate commerce. In contrast to the doctrine of preemption, which generally applies in areas where Congress has acted, the so-called Dormant Commerce Clause doctrine may bar state or local regulations even in the absence of relevant congressional legislation. For more information on the dormant aspects of the Commerce Clause, see .
5: E.g., Mugler v. Kansas, 123 U.S. 623, 659 (1887). Drawing a distinction between intrastate manufacture and interstate commerce, the Court held that states could prohibit the manufacture of liquor for an out-of-state market. Kidd v. Pearson, 128 U.S. 1, 22–23 (1888). For a discussion of the Court’s temperance-law jurisprudence, see Granholm v. Heald, 544 U.S. 460, 476–82 (2005); and Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 12–20 (U.S. June 26, 2019). See also .
6: See Bowman v. Chi. & Nw. Ry. Co., 125 U.S. 465, 498 (1888); Leisy v. Hardin, 135 U.S. 100, 122–23 (1890).
7: Seesources cited supra 3.
8: E.g., Wilson Act, ch. 728, 26 Stat. 313 (1890) (codified at 27 U.S.C. § 121). The Supreme Court interpreted the Wilson Act narrowly to authorize states to regulate the resale of imported liquor after delivery to the consignee in the state, but not the direct shipment of liquor to a consumer for personal use. Rhodes v. Iowa, 170 U.S. 412, 424 (1898); Scott v. Donald, 165 U.S. 58, 100 (1897) (holding that the Wilson Act did not authorize a South Carolina law requiring all liquor sales to be channeled through the state liquor commissioner, and thus such a requirement was an impermissible burden on interstate commerce). See also Vance v. W. A. Vandercook Co., 170 U.S. 438, 456–57 (1898).
9: Webb-Kenyoyn Act, ch. 90, 37 Stat. 699 (1913) (codified at 27 U.S.C. § 122). The Supreme Court upheld the constitutionality of the Webb-Kenyon Act. See Clark Distilling Co. v. W. Md. Ry. Co., 242 U.S. 311, 331 (1917).
10: Act of Mar. 3, 1917, ch. 162, § 5, 39 Stat. 1058, 1069.
11: In the decades leading up to the Eighteenth Amendment’s proposal and ratification, the Supreme Court had adopted a narrow view of Congress’s power to regulate the local manufacture and sale of products under the Commerce Clause. See, e.g., Hammer v. Dagenhart, 247 U.S. 251, 276 (1918) (striking down the federal Keating-Owen Child Labor Act, which prohibited the transportation in interstate commerce of products made in a factory that had employed child labor, because Congress lacked authority under the Commerce Clause to regulate local manufacturing), overruled by United States v. Darby, 312 U.S. 100 (1941); Kidd v. Pearson, 128 U.S. 1, 17 (1888) (suggesting that Congress’s Commerce Clause power did not extend to “the purely internal domestic commerce of a state, which is carried on between man and man within a state or between different parts of the same state.” ). However, the Supreme Court held that Congress could rely on its war powers to enact federal prohibition legislation prohibiting the production and sale of intoxicating liquors within a state “in order to promote the Nation’s efficiency in men, munitions and supplies.” Jacob Ruppert v. Caffey, 251 U.S. 264, 282 (1920). After Prohibition’s repeal, the Court began to adopt a more expansive view of Congress’s Commerce Clause authority. By 1942, the Court held that Congress’s power under the Commerce Clause and Necessary and Proper Clause extended to intrastate activities that, in the aggregate, substantially affect interstate commerce. Wickard v. Filburn, 317 U.S. 111, 124 (1942). See also Gonzales v. Raich, 545 U.S. 1, 33 (2005) (considering whether the cultivation, distribution, or possession of marijuana for personal medical purposes pursuant to the California Compassionate Use Act of 1996 could be prosecuted under the federal Controlled Substances Act and holding that the Court would defer to Congress if there was a rational basis to believe that regulation of home-consumed marijuana would affect the market for marijuana generally).
12: Military Prohibition Act, ch. 15, § 12, 40 Stat. 76, 82–83 (1917).
13: Food Control Act, ch. 53, § 15, 40 Stat. 276, 282 (1917).
14: See id.
15: E.g., Proclamation of Dec. 8, 1917, 40 Stat. 1728, 1728–29; Proclamation of Sept. 16, 1918, 40 Stat. 1848, 1848–49. See also Jacob Ruppert, 251 U.S. at 278–80 (discussing presidential proclamations under the Lever Act).
16: War-Time Prohibition Act, ch. 212, 40 Stat. 1045, 1046–47 (1918). The Act took effect in July 1919 after World War I had ended. Id.
17: Id. The Act, which also banned beer and wine production, exempted some beverages destined for export to foreign countries. Id.
18: See Jacob Ruppert, 251 U.S. at 278–80. In a case decided only weeks before Prohibition took effect, the Supreme Court disregarded the Commissioner’s interpretation, deeming it inconsistent with the War-Time Prohibition Act. United States v. Standard Brewery, Inc., 251 U.S. 210, 219 (1920). However, the Volstead Act, which provided for Prohibition’s enforcement, specifically adopted the Commissioner’s stringent interpretation of “intoxicating liquor.” See .