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.

By 1917, the widespread proliferation of state restrictions on the liquor trade and Congress’s enactment of wartime prohibition measures had laid the foundation for nationwide Prohibition.1 The states’ ratification of the Sixteenth Amendment in 1913 boosted the Eighteenth Amendment’s prospects by empowering Congress to impose a nationwide income tax to offset the loss of federal alcohol excise tax revenue.2 With the Anti-Saloon League’s political influence at its peak, a wave of “dry” candidates swept into Congress in 1916.3 Although earlier nationwide prohibition efforts had failed to gain enough political support,4 advocates recognized that the political environment was favorable for Congress’s proposal of the Eighteenth Amendment.5

On April 4, 1917, Senator Morris Sheppard of Texas introduced the joint resolution that would, as revised, become the Eighteenth Amendment.6 The Senate Judiciary Committee, to which the joint resolution was referred, reported it favorably.7 The committee’s report, relying on statements from prior Congresses, contended that the amendment should be submitted to the states because of popular support for Prohibition; the “evils” of alcoholic beverages; and the presumption that Congress lacked constitutional authority to regulate the intrastate manufacture and sale of alcoholic beverages comprehensively in peacetime.8

During the summer of 1917, the Senate debated the draft Prohibition amendment. Supporters echoed the temperance movement, arguing that drinking was detrimental to the health and welfare of society.9 They contended that federal enforcement of nationwide Prohibition would prevent persons in “wet” states from smuggling alcoholic beverages into “dry” states, thereby undermining state prohibition laws.10 Opponents, on the other hand, argued that granting the federal government the power to police individuals’ social habits would intrude upon the states’ reserved powers and violate the American tradition of local self-governance.11 Senator Henry Cabot Lodge of Massachusetts predicted that Prohibition would become impossible for the federal government to enforce and widely disobeyed.12 Nonetheless, the Senate approved the joint resolution by the requisite two-thirds vote on August 1, 1917, sending it to the House for further action.13

Four months later, the House considered the draft amendment. The House Judiciary Committee, to which the amendment had been referred, reported the joint resolution favorably with revisions.14 Among other changes, the House version of the amendment clarified that the states would maintain the power to enforce prohibition laws within their jurisdictions.15 In reporting the joint resolution, the committee declined to evaluate the merits of Prohibition, instead noting that popular support for the amendment, as evidenced by the prevalence of state prohibition laws, made it “incumbent upon the Congress, to submit the issue to the States in the manner requested.” 16 However, the amendment’s opponents raised concerns about the federal government’s intrusion on state sovereignty; loss of tax revenues; enforcement costs; and the creation of an illegal liquor traffic.17

The House held a single day of debate on the amendment.18 Supporters echoed arguments made during the Senate debates, contending that the federal government should enforce a ban of alcoholic beverages and saloons in order to protect Americans’ health, safety, and morals.19 They also noted that a majority of the states had adopted “dry” laws, which evidenced popular support for the amendment.20 Opponents raised concerns about state sovereignty and predicted that the federal and state governments would find it difficult to enforce a nationwide criminal prohibition on activities supported by popular majorities in many state and local jurisdictions.21

The House approved the proposed amendment, as revised, by a vote of 282 to 128.22 After the Senate approved the revised version,23 Congress submitted the Eighteenth Amendment to the states for ratification on December 18, 1917.24 Although Congress imposed a seven-year deadline on the Eighteenth Amendment’s ratification, the requisite three-fourths of the states approved it in little more than a year. On January 29, 1919, Acting Secretary of State Frank L. Polk certified that the Amendment had been ratified.25 By its terms, the Amendment did not become effective until January 17, 1920, which was one year after ratification.26

Footnotes

1

See Amdt18.3 Early Federal and State Prohibition Laws.

2

U.S. Const. amend. XVI ( “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” ); Eric Burns, The Spirits of America: A Social History of Alcohol 164–65 (2004); Daniel Okrent, Last Call: The Rise and Fall of Prohibition 54 (2010) (noting that, by 1910, taxes on alcoholic beverages accounted for more than thirty percent of total federal tax revenues).

3

Mark Edward Lender & James Kirby Martin, Drinking in America: A History 129 (1982). Malapportionment of congressional House seats, which gave anti-Prohibition, urban regions of the country less representation in Congress, likely contributed to dry candidates’ successes in the 1916 elections. Okrent, supra 5, at 81, 104.

4

E.g., S. Res. 12, 50th Cong. § 1 (1887) ( “The manufacture, importation, exportation, transportation, and sale of all alcoholic liquors as a beverage shall be, and hereby is, forever prohibited in the United States and in every place subject to their jurisdiction.” ). Senator Morris Sheppard of Texas introduced a prohibition amendment in the Senate in 1913. S.J. Res. 88, 63d Cong. (1913). Representative Richmond Pearson Hobson of Alabama introduced a prohibition amendment in the House in 1914 that was reported out of committee; however, it did not secure the requisite two-thirds vote for passage. H.J. Res. 168, 63rd Cong. (1914); 52 Cong. Rec. 616 (1914). For more on the history of the Hobson Amendment and the evolution of the Eighteenth Amendment’s enforcement provisions, see Richard F. Hamm, Shaping the Eighteenth Amendment Temperance Reform, Legal Culture, and the Polity, 1880-1920 (Studies in Legal History) 228–35 (1995).

5

Lender & Martin, supra 1, at 129. The brewing industry lobbied against the Eighteenth Amendment but could not overcome the strength of the Anti-Saloon League and the Prohibition lobby. See Okrent, supra 2, at 30–34. In an effort to tip the political balance further toward Prohibition, the Anti-Saloon League announced its support for women’s suffrage in 1916. Id. at 65.

6

S.J. Res. 17, 65th Cong. (1917).

7

S. Rep. No. 65-52, at 1 (1917). The committee removed language from the amendment that specifically preserved the states’ powers to enact and enforce prohibition laws. Id. The House later added state enforcement provisions.

8

See id. at 1–5. See also Amdt18.3 Early Federal and State Prohibition Laws.

9

55 Cong. Rec. 5549–51 (1917).

10

Id. at 5552, 5626.

11

Id. at 5555.

12

Id. at 5586–87.

13

Id. at 5666.

14

H. Rep. No. 65-211, pt. 1, at 1–2 (1917).

15

Id. Brewers and distillers obtained one year in which to wind down their business operations before the amendment took effect. Id. The committee also increased the deadline for ratification from six to seven years. Id.

16

Id.

17

Id. pt. 3, at 1, 4–8. Opponents also argued that Prohibition would distract the nation from its war effort and violate beverage producers’ and liquor dealers’ property rights. E.g., id.

18

56 Cong. Rec. 422 (1917).

19

Id. at 425, 427.

20

Id. at 427.

21

Id. at 428, 436–37.

22

Id. at 469–70.

23

Id. at 477–78.

24

Joint Resolution Proposing an Amendment to the Constitution of the United States, 40 Stat. 1050, 1050 (1917).

25

Certificate of Adoption of the Eighteenth Amendment to the Constitution, 40 Stat. 1941, 1941–42 (1919).

26

See U.S. Const. amend. XVIII, § 1.