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.

Prior to its repeal, the Eighteenth Amendment prohibited the manufacture, sale, or transportation of “intoxicating liquors” for “beverage purposes” within the United States.1 To enforce Prohibition,2 Congress enacted the National Prohibition Act or “Volstead Act.” 3 The Eighteenth Amendment and Volstead Act were controversial in part because they empowered the federal government to police activities that implicated individual social habits and morality—a role traditionally led by state and local governments.4 Difficult to enforce and widely disobeyed, Prohibition lasted almost 14 years before the Twenty-First Amendment repealed it.5

The Eighteenth Amendment was the product of nationwide temperance movements that first emerged in the decades after the Founding and steadily grew in influence during the Progressive Era.6 From the Colonial Era to the early 1800s, most Americans viewed moderate alcohol consumption as a normal aspect of life.7 Early Americans, including many of the Founders, drank, purchased, or manufactured large quantities of alcoholic beverages.8 However, as Americans’ consumption of hard liquor increased significantly from the 1790s to the 1830s, Protestant Christians, concerned about alcoholism’s effects on society, formed some of the first temperance groups.9

In the decades leading up to the Civil War, temperance groups adopted an increasingly stringent attitude toward alcohol consumption and successfully pressured some states to enact laws prohibiting the liquor trade.10 However, as the nation became embroiled in disagreements over the issue of slavery, Americans’ interest in the temperance movement waned, and many state legislatures repealed or weakened their prohibition laws.11

After the Civil War, the temperance movement again surged in popularity as the nation grappled with rapid industrialization and urbanization.12 The organization most responsible for the Eighteenth Amendment’s proposal and ratification was the Anti-Saloon League.13 Founded in 1893, the League engaged strategically with Protestant churches and both of the major political parties, publishing political pamphlets and giving speeches in support of Prohibition.14 One of the League’s most prominent leaders, Wayne B. Wheeler, directed the organization’s lobbying and fundraising efforts, which targeted politicians at all levels of government throughout the United States.15

By 1917, the widespread proliferation of state prohibition laws and Congress’s enactment of wartime restrictions on the production and sale of alcoholic beverages had laid the foundation for nationwide Prohibition.16 With the Anti-Saloon League’s political influence at its peak, a wave of “dry” candidates swept into Congress in 1916.17 On December 18, 1917, Congress proposed the Eighteenth Amendment.18 Although Congress imposed a seven-year deadline on the Amendment’s ratification, the requisite three-fourths of the states approved it in little more than a year.19 On January 29, 1919, Acting Secretary of State Frank L. Polk certified that the Amendment had been ratified on January 16.20 By its terms, the Amendment did not become effective until January 17, 1920, which was one year after the states ratified it.21

The Eighteenth Amendment and nationwide Prohibition quickly fell out of favor with the American public because of ineffective enforcement, harsh enforcement techniques, crime related to the illegal liquor traffic, a need for tax revenue during the Great Depression, and widespread defiance of the law.22 The Twenty-First Amendment repealed Prohibition but recognized that the states could regulate or prohibit alcoholic beverages within their jurisdictions for nonprotectionist purposes, such as health or safety.23 In addition, the federal government continued to tax or regulate activities involving alcoholic beverages, including aspects of beverage production, wholesale distribution, importation, labeling, and advertising.24

Footnotes

1

U.S. Const. amend. XVIII, § 1. The Amendment also forbade the importation of beverage liquor into the United States or its exportation therefrom. Id. This group of essays often refers to the Eighteenth Amendment’s nationwide ban on the liquor trade as “Prohibition.”

2

The Eighteenth Amendment granted Congress and the state legislatures “concurrent power” to enforce Prohibition by enacting “appropriate legislation.” U.S. Const. amend. XVIII, § 2. The Supreme Court held that the Eighteenth Amendment gave the federal government broad power to enforce Prohibition, even with respect to activities conducted within a single state, such as the manufacturing and sale of alcoholic beverages. See Nat’l Prohibition Cases, 253 U.S. 350, 387 (1920). The Court also confirmed the states’ power to augment the federal government’s enforcement efforts with potentially stricter requirements by targeting aspects of the liquor trade that fell within state jurisdiction. E.g., Vigliotti v. Pennsylvania, 258 U.S. 403, 407–09 (1922). For more information, see Amdt18.8 Federal and State Enforcement Powers

3

The National Prohibition Act was popularly known as the Volstead Act because Representative Andrew John Volstead of Minnesota, chairman of the House Judiciary Committee, sponsored and promoted the Act. The Volstead Act forbid, among other activities, the production, sale, transportation, or possession of beverages that contained 0.5% or greater alcohol by volume—a stringent definition of “intoxicating liquors” that encompassed beer and light wines in addition to distilled alcoholic beverages, such as whiskey or gin. However, the Act allowed the licensed production, use, and sale of alcohol for certain industrial, medicinal, religious, and scientific purposes, subject to state or local restrictions. Moreover, the Act did not specifically prohibit drinking or purchasing alcoholic beverages, and it allowed persons to possess beverages that had been legally acquired. See Amdt18.5 Volstead Act.

4

Nat’l Comm’n on Law Observance and Enf’t, Enforcement of the Prohibition Laws of the United States, H.R. Doc. No. 71-722, at 20 (1931) ( “The Eighteenth Amendment represents the first effort in our history to exten[d] directly by Constitutional provision the police control of the federal government to the personal habits and conduct of the individual.” ); Robert Post, Federalism, Positive Law, and the Emergence of the American Administrative State: Prohibition in the Taft Court Era, 48 Wm. & Mary L. Rev. 2–4, 6–7 & n.8, 11–12 (2006) (noting that the Eighteenth Amendment “caused a major crisis in the theory and practice of American federalism, as the national government, which lacked the courts or police necessary for implementing the [Amendment], sought to conscript state judicial and law enforcement resources.” ).

5

Nat’l Comm’n on Law Observance and Enf’t, supra note 4, at 54; 56 Cong. Rec. 436–37 (1917). Prohibition took effect on January 17, 1920. The Twenty-First Amendment repealed the Eighteenth Amendment on December 5, 1933. See U.S. Const. amend. XXI, § 1.

6

See . The Progressive Era, which lasted from the 1890s to the 1920s, was a period of increased political activism and social reform in the United States. See Progressive Era to New Era, 1900–1929: Overview, Libr. of Cong., https://www.loc.gov/classroom-materials/united-states-history-primary-source-timeline/progressive-era-to-new-era-1900-1929/overview/ (last visited June 13, 2023).

7

See Amdt18.2.2 Temperance Movements of the Nineteenth and Twentieth Centuries.

8

See id.

9

See .

10

See id.

11

See id.

12

See Amdt18.2.3 Post-Civil War Temperance Organizations.

13

See id.

14

See id.

15

See id.

16

See Amdt18.4 Proposal and Ratification of the Eighteenth Amendment.

17

See id.

18

See id.

19

See id.

20

See id.

21

See id.

22

See Amdt18.9 Repeal of the Eighteenth Amendment.

23

U.S. Const. amend. XXI, § 2; Tenn. Wine & Spirits Retailers Ass’n v. Thomas, No. 18-96, slip op. at 31–32 (U.S. June 26, 2019) ( “[Section 2] allows each State leeway to enact the measures that its citizens believe are appropriate to address the public health and safety effects of alcohol use and to serve other legitimate interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those interests.” ).

24

See Amdt18.9 Repeal of the Eighteenth Amendment.