The Odd Clauses

by Jay Wexler

  CHAPTER 6

  The Twenty-first Amendment

  Federalism

  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.

  Amendment XXI, Section 2

  This may come as a surprise, but in the late 1960s, the problem of “bottomless” dancing in California bars and nightclubs had spiraled out of control. Or at least that was the opinion of the state’s Department of Alcoholic Beverage Control, which became so worried about the menace that it held a series of public hearings to figure out the extent of the peril and what to do about it. The testimony at these hearings revealed, in the words of one federal court, a “sordid” story, “primarily relating to sexual contact between dancers and customers.” Apparently, bottomless-dancing clubs were not nearly as wholesome as one might imagine. According to a different court: “Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself.” The State of California, in other words, had turned into a Bangkok red-light district.

  Of course, the state had already made it illegal for customers and dancers to engage in public sexual acts, but apparently those laws had not done the trick (so to speak). The agency in charge of licensing the sale of alcoholic beverages within the state therefore decided to do something about the bottomless dancing itself. It passed a series of regulations prohibiting a variety of lewd practices in any establishment selling liquor. Specifically, no club holding a liquor license could allow any person to perform acts of or simulating “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation . . . [or] the touching, caressing or fondling on the breast, buttocks, anus, or genitals.” The state figured that banning these activities in bars would pretty much end them altogether; what guy, after all, is going to pay money to watch a woman simulate caressing her buttocks if he can’t enjoy a beer at the same time?

  The problem, however, was that California’s regulations seemed clearly to violate the First Amendment. Fifteen or so years earlier, the Supreme Court had held that the government may not ban arguably profane speech or expression that does not rise to the level of “obscenity,” with the term “obscenity” being very specifically defined as material that, when “taken as a whole,” appeals to a “prurient” interest in sex and patently offends “community standards” relating to sex, while completely lacking any “social importance.” Nothing in the regulations limited their application only to “obscene” instances of bestiality or flagellation. Accordingly, when a group of dancers and license holders sued to have the regulations invalidated, the three-judge lower federal court that heard the case held that the regulations were unconstitutional.

  The Supreme Court, however, reversed. The Court agreed that the “regulations on their face would proscribe some forms of visual presentation that would not be found obscene” under its prior cases. So why uphold the regulations? The answer appeared to rest in the language of Section 2 of the Twenty-first Amendment, which was ratified in 1933 to repeal the era of Prohibition that had been ushered in fourteen years earlier by the Eighteenth Amendment. According to the Court, Section 2 of the Twenty-first Amendment acted like a thumb on the scale of state power, giving states the authority to regulate alcohol in ways that would otherwise violate the Constitution. As the Court put it: “[T]he broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. . . . Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.”

  That seems like a strange result, doesn’t it? How could the amendment that ended Prohibition be used by the Court to uphold a restriction on the sale of alcohol? Well, that depends on what the Twenty-first Amendment was all about. Was it about making alcohol legal, or was it about taking power over alcohol away from the federal government and returning it to the states, where it had always resided prior to 1919?

  Perhaps the most difficult issue facing the framers of the Constitution was how to balance the powers of the new federal government with the powers of the states—to work out, in other words, the problem of federalism. Between the end of the Revolutionary War and the ratification of the Constitution, the newly independent states had been operating under the Articles of Confederation, a document that created a very limited federal government and left most powers to the states. This regime worked poorly, particularly because the states competed with each other for economic supremacy, taxing each other’s goods and otherwise refusing to trade freely among themselves. The federal government, lacking executive and judicial power and possessing only a weak legislature, couldn’t do anything to preserve interstate harmony. When the Constitutional Convention met in 1787, it was clear that the federal government needed to be given more power, but a lot of disagreement remained between the so-called federalists and anti-federalists about exactly how much.

  In many ways, the Constitution represents a compromise between these two camps. Most importantly, although the Constitution creates a substantial, three-branch national government, it confers upon that government only a series of specific, limited powers; everything else is left to the states. As discussed in chapter 2, Congress may only exercise those powers enumerated by the Constitution; the founding document does not give Congress any sort of general police power to regulate purely local activities. Likewise, as discussed in chapter 4, the jurisdiction of the federal judiciary is limited to cases involving federal law and cases involving plaintiffs and defendants from different states. Run-of-the-mill controversies about real property, contract terms, criminal law, and negligently dropping a brick on someone’s foot generally cannot be heard by the federal courts.

  In addition, two key amendments to the Constitution specifically protect the states. The Eleventh Amendment, ratified in 1795, says: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The amendment was motivated by a famous early Supreme Court case called Chisholm v. Georgia, which held that a citizen of South Carolina could sue the

  State of Georgia to recover debts from the Revolutionary War. The states kind of freaked out about the idea that people could sue them for the mountains of debt they had incurred during the war, and they acted promptly to enact the Eleventh Amendment. Even though the language of the amendment clearly does not bar citizens from suing their own state and clearly applies only to federal courts, the Supreme Court has priggishly extended the amendment to all citizens and all courts. As a result, states are immune from a lot of lawsuits that they shouldn’t be, like suits brought against them by their own citizens to enforce federal employment or environmental laws, even if these suits are brought in state court.

  Then there’s the Tenth Amendment. This curious little number—the final entry in the Bill of Rights, ratified in 1791—says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It’s unclear what this is supposed to mean. On the one hand, there’s a good argument that it does nothing but remind everyone that if the Constitution doesn’t give a power to the federal government, then that power continues to reside with the states. On the other hand, it does seem strange that the framers would create a whole constitutional amendment to serve as nothing more than an FYI Post-it note. Accordingly, the Supreme Court has from time to time used the Tenth Amendment to strike down federal laws that order or “commandeer” the stat
es to carry out some federal requirement, like the time Congress ordered every state to come up with a plan to dispose of all hazardous waste within their borders or else take ownership of the waste, or when the Brady Bill required state officials to do background checks on anyone seeking to buy a gun. It is worth noting, however, that nothing in the Tenth Amendment stops the federal government from basically coercing the states by threatening to take funds away from them if they don’t do what the feds want.

  Although the Constitution gives the states a lot of latitude to do as they wish, it also places a number of specific limits on the little guys. For one thing, there’s the supremacy clause of Article VI, which says that federal law is the “supreme Law of the Land.” This clause makes it clear that if a federal law and a state law conflict, the federal law trumps. That’s why, for example, it’s still technically illegal to use marijuana for medical purposes in California. Second, Article I, Section 10, of the Constitution lays out a series of specific limits on the states—they are forbidden, for instance, from issuing titles of nobility (see chapter 8), keeping troops, engaging in war with foreign nations, or coining their own money. Moreover, most of the Bill of Rights, including the rights to free speech, freedom of religion, and freedom from unreasonable searches and seizures, has also been applied by the Supreme Court to the states by way of the due process clause of the Fourteenth Amendment.

  Finally, one of the most important restrictions on state power is one that doesn’t seem to actually be in the Constitution, at least explicitly. As I mentioned in the last chapter, the Supreme Court has long interpreted Article I, Section 8’s commerce clause—the provision that gives Congress the power to regulate interstate commerce—as implicitly restricting the states from regulating interstate commerce themselves. The Court has used what’s bizarrely been referred to as the “dormant commerce clause” to solve the major problem haunting the Republic under the Articles of Confederation—states passing laws to protect their own local economies—and to ensure the existence of a true national economy with a free flow of goods across state lines. Under the dormant commerce clause, any state law that facially discriminates against out-of-state goods by banning them or taxing them or whatever is unconstitutional unless Congress has specifically authorized such a law or the law is necessary to protect some compelling state interest unrelated to protecting its economy. This last exception is quite narrow. Only once—when Maine banned the import of live baitfish to protect its “fragile fisheries”—has the Supreme Court upheld a discriminatory state law on that basis, and that was because baitfish from outside Maine had some nasty parasite that Maine baitfish generally didn’t have.

  I would bet that most average twenty-first-century Americans, if you asked them, would say that it’s really weird that two out of the twenty-seven amendments in the Constitution have to do with booze. Why would our most important legal document single out something so mundane and pedestrian as alcoholic beverages, of all things? Drinking alcohol to excess is obviously unhealthy, and its secondary effects, like drunk driving and violence, are worth some bits of federal or state legislation here and there, but two constitutional amendments? For real?

  To understand how prohibiting the manufacture and sale of alcoholic beverages could have become a matter of constitutional concern requires some creative imagination of how Americans in the late nineteenth and early twentieth centuries viewed booze and its associated problems. For many abstainers, or “drys,” in this period, alcohol was pure evil. Remember, Americans (mostly men) drank a lot back then, and when they drank, it was often in male-only saloons. This was not an era, in other words, when men and women sipped gin and tonics together by the pool or went club hopping arm-in-arm after work. Men would disappear with the week’s wages and blow it in the saloons on drinks and prostitutes, leaving their wives and children at home, scrounging for food until the husbands showed up sometimes days later to give them all a good beating. As Daniel Okrent, author of the superb book Last Call: The Rise and Fall of Prohibition, puts it: “Saloons were dark and nasty places, and to the wives of the men inside, they were satanic.”

  Put this situation together with the fact that alcohol was often identified with European immigrants and racial minorities, and it starts to make sense that groups of nativists, racists, and women’s rights activists could come together in various unlikely alliances to convince a slew of states to prohibit or restrict the manufacture and sale of alcohol within their borders. Here, however, a strange early quirk of the dormant commerce clause came into play. Back in the early twentieth century, under the Supreme Court’s so-called “original package” doctrine, states were not allowed to regulate the sale of products coming from other states within their own borders so long as the product remained in its original package. This led to the counterintuitive result that states could not prohibit saloons from selling liquor imported from other states. To remedy this problem, Congress passed the Webb-Kenyon Act, which, in language very similar to what would become Section 2 of the Twenty-first Amendment, made it a federal crime to ship intoxicating liquor from one state to another state in violation of the latter state’s laws.

  Although Webb-Kenyon closed one of the major loopholes that had made liquor regulation on the state level problematic, many hard-core drys were still unsatisfied with the patchwork of state laws regarding alcohol. Not all states banned liquor, and those that did varied in how strict they were about it. When the Sixteenth Amendment reversed an earlier Supreme Court decision and made it legal for the government to institute an income tax—thus substantially reducing the fiscal need to tax liquor—and World War I brought German breweries like Anheuser-Busch into disrepute—the stage was finally set for the drys to prevail in their long-standing battle to put Prohibition in the Constitution. And, thus, Section 1 of the Eighteenth Amendment: “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.”

  The text of the amendment left a number of questions unanswered—such as, for instance, what counts as an “intoxicating liquor”—so Congress filled these gaps through a statute called the Volstead Act. The act defined the key word “intoxicating” to include anything one could ingest that contained more than 0.5 percent alcohol, which, as Okrent points out, technically made it illegal to sell sauerkraut and German chocolate cake, as well as the least alcoholic of beers and wines. The act also came up with a few interesting exceptions. For example, the statute made it legal for rich people to drink in their own homes any alcohol purchased before the effective date of the Eighteenth Amendment (the act didn’t actually explicitly limit this exception to “rich people,” but who else had stockpiled liquor in their basements?). The act exempted sacramental wine, which was nice, since it meant that Catholics and Jews could continue to practice their religions, as well as cider and fermented fruit juices, which was also nice, since it meant that (again, according to Okrent) “no husbandman would be denied the barrel by the homestead door, the jug stashed in a corner of the field, the comforting warmth on cold country nights.”

  Prohibition, naturally, was a complete disaster. Organized crime flourished. Corruption thrived. Violence blossomed. Poisoning from crudely distilled alcohol became rampant. Federal anticrime forces were overwhelmed (Section 2 of the Eighteenth Amendment provided that both the feds and the states had jurisdiction over its enforcement). And still people drank nearly as much as they had before, though in different ways and in various degrees of secrecy. Once again, larger forces appeared on the scene, and when the Great Depression made the absurdity of prohibiting booze on a federal level inescapably obvious, the country’s “wets” were able to secure passage of the Twenty-first Amendment, Section 1, of which provided: “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”r />
  Section 1 of the Twenty-first Amendment is clear as a bell, but what about Section 2? 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. Probably the oddest thing about this section is that it directly regulates the behavior of private parties rather than the government. Every other provision in the Constitution, except for one, tells the government what it can or must or cannot do. If you haven’t thought about this before, you might want to find the Constitution online and skim through it (we thought about reprinting it as an appendix at the end of the book, but that would have added $1 to the price of the book; you’re welcome). Notice how just about never does the Constitution place any limit on individuals or other private actors like associations or corporations or religious groups or anyone else. The only two exceptions are Section 2 of the Twenty-first Amendment and Section 1 of the Thirteenth Amendment, which prohibits slavery. This unique feature of the Twenty-first Amendment led Harvard professor Laurence Tribe, probably the preeminent scholar on the US Constitution, to nominate Section 2 as the Constitution’s stupidest clause. As Tribe puts it:

  [T]here are two ways, and two ways only, in which an ordinary private citizen, acting under her own steam and color of no law, can violate the United States Constitution. One is to enslave somebody, a suitably hellish act. The other is to bring a bottle of beer, wine, or bourbon into a State in violation of its beverage control laws—an act that might have been thought juvenile, and perhaps even lawless, but unconstitutional?

  Beyond this quirk, however, it remains unclear what exactly the framers of Section 2 were attempting to accomplish. There are two basic theories of what’s going on with the clause—what experts have called the “maximalist” and the “minimalist” theories, although of course there are intermediate positions as well. According to the maximalist theory, Section 2 gives the states complete power to regulate liquor, including the power to pass laws that would otherwise violate earlier-enacted provisions of the Constitution, including the First Amendment and the dormant commerce clause. On the other hand, defenders of a more minimalist approach to the clause say that it’s merely meant to constitutionalize the Webb-Kenyon Act and make clear that states may regulate alcohol coming from outside their borders, so long as that regulation otherwise comports with the rest of the Constitution.