Eighteenth Amendment, Section 2:

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

Despite its broad scope, the Eighteenth Amendment did not “prescribe any penalties, forfeitures, or mode of enforcement.” 1 Instead, Section 2 of the Amendment authorized Congress and the state legislatures to enact legislation to implement Prohibition.2 To enforce Prohibition nationwide and regulate beverage and non-beverage uses of alcohol, Congress enacted the Volstead Act on October 28, 1919.3

The Supreme Court interpreted the scope of Congress’s power to enforce the Eighteenth Amendment in several cases, applying a deferential standard of review to federal enforcement legislation. For instance, the Court determined that Congress had reasonably exercised its enforcement power by enacting controversial provisions of the Volstead Act prohibiting traffic in beverage “liquors” containing only 0.5% alcohol by volume, which included beer and light wines.4

The Court also confronted questions about the “concurrent power” of Congress and the states to enforce Prohibition under Section 2 of the Eighteenth Amendment. The Court determined that “concurrent power” did not mean “joint power,” and thus federal enforcement legislation could become effective without the states’ approval.5 Moreover, the Eighteenth Amendment did not neatly divide federal and state power to enforce Prohibition along the lines separating interstate from intrastate commerce.6 Consequently, the federal government could enforce Prohibition against intrastate activities involving alcoholic beverages, such as their manufacture and sale.7 Moreover, state legislatures could restrict the importation of alcoholic beverages without violating the dormant Commerce Clause doctrine.8

The Supreme Court’s Eighteenth Amendment jurisprudence thus confirmed the states’ powers to augment federal enforcement efforts.9 However, state laws that authorized conduct prohibited under the Eighteenth Amendment or other federal law were preempted.10

Footnotes

1

Cunard S.S. Co. v. Mellon, 262 U.S. 100, 126 (1923).

2

U.S. Const. amend. XVIII, § 2.

3

See Amdt18.5 Volstead Act.

4

Nat’l Prohibition Cases, 253 U.S. 350, 387–88 (1920). For other cases addressing the scope of Congress’s Eighteenth Amendment enforcement power, see Lambert v. Yellowley, 272 U.S. 581, 587–90, 594–97 (1926) (determining that Congress could reasonably conclude that restricting a physician’s ability to prescribe wines and spirits for medicinal purposes would help to enforce the Eighteenth Amendment and Prohibition); Selzman v. United States, 268 U.S. 466, 467–69 (1925) (holding that Congress’s regulation of industrial alcohol not usable for beverage purposes was a reasonable exercise of its Eighteenth Amendment enforcement powers “to prevent the proper industrial use of it from being perverted to drinking it” ); James Everard’s Breweries v. Day, 265 U.S. 545, 558–61 (1924) (determining that Congress had reasonably exercised its Eighteenth Amendment enforcement powers by prohibiting physicians from prescribing intoxicating malt liquors for medicinal purposes while allowing doctors to prescribe distilled spirits or wines for such purposes because “the power to prohibit traffic in intoxicating liquors includes, as an appropriate means of making that prohibition effective,” the power to stop “clandestine” and illegal traffic in alcoholic beverages disguised as medicines by prohibiting “traffic in similar liquors, although non-intoxicating.” ).

5

Nat’l Prohibition Cases, 253 U.S. at 387.

6

Id.

7

Id. ( “The power confided to Congress . . . while not exclusive . . . embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several states or any of them.” ). After the end of Prohibition, the Supreme Court held that Congress’s power under the Commerce Clause and Necessary and Proper Clause extended to intrastate activities that, in the aggregate, 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).

8

United States v. Lanza, 260 U.S. 377, 381–82 (1922) (discussing the historical restrictions on states’ powers to regulate alcoholic beverages under the Commerce Clause and opining that state prohibition laws do not “derive their force” from the Eighteenth Amendment but rather “from power originally belonging to the States, preserved to them by the Tenth Amendment, and now relieved from the restriction heretofore arising out of the federal Constitution.” ). For more on the dormant Commerce Clause doctrine, see ArtI.S8.C3.7.1 Overview of Dormant Commerce Clause. For a discussion of the Court’s jurisprudence on the relationship between the Eighteenth Amendment and the Fifth Amendment’s Double Jeopardy Clause, see Hebert v. Louisiana, 272 U.S. 312, 314 (1926) ( “The Eighteenth Amendment to the Constitution contemplates that the manufacture of intoxicating liquor for beverage purposes may be denounced as a criminal offense both by the federal law and by the state law, and that these laws may not only coexist, but be given full operation, each independently of the other.” ); Lanza, 260 U.S. at 381–85 (rejecting Fifth Amendment Double Jeopardy arguments and determining that defendants charged with trafficking in liquors were, in the absence of contrary federal law, subject to prosecution, conviction, and punishment in federal court for violating the Volstead Act, and to prosecution in state court for violating state prohibition laws).

9

McCormick & Co. v. Brown, 286 U.S. 131, 133, 140–45 (1932) (referencing the Tenth Amendment and federal Webb-Kenyon Act when upholding a West Virginia law that required nonresident companies to obtain state permits before shipping alcoholic “preparations” to West Virginia dealers, regardless of whether the nonresidents held federal permits authorizing shipment); Lanza, 260 U.S. at 381 ( “Each State, as also Congress, may exercise an independent judgment in selecting and shaping measures to enforce prohibition.” ). See also Hixon v. Oakes, 265 U.S. 254, 255–56 (1924) (upholding a Los Angeles ordinance prohibiting the filling of any prescription that called for more than eight ounces of liquor and determining that the law did not conflict with the Eighteenth Amendment or Volstead Act); Vigliotti v. Pennsylvania, 258 U.S. 403, 407–09 (1922) (determining that neither the Eighteenth Amendment nor the Volstead Act preempted a stricter Pennsylvania statute prohibiting the sale of liquor without a license because the state law was an appropriate aid, rather than an obstacle, to federal enforcement of Prohibition).

10

See Nat’l Prohibition Cases, 253 U.S. at 386–87.