Eighteenth Amendment

Originalist note

The Eighteenth Amendment (ratified 1919, repealed 1933) postdates the founding by well over a century, so none of the wiki's founding-era sources (Federalist Papers, Madison's Notes, Elliot's Debates, the Founders' Constitution, Story's Commentaries) speak to it as a constitutional proposal. Its own short life is the relevant historical record: proposed by Congress on December 18, 1917, ratified January 16, 1919, and repealed by the Twenty-First Amendment on December 5, 1933 — the only amendment ever repealed outright. No founding-era source in this wiki directly addresses a nationwide prohibition amendment or its repeal.

Founding-era figures did leave a record on the underlying question of alcohol regulation itself, even without addressing a constitutional amendment: Washington and Hamilton both distinguished moderate drinking from the "extreme" of "ardent spirits" consumption, and Hamilton's 1790 recommendation to Congress produced the whiskey-distillation tax that provoked the Whiskey Rebellion — evidence that the Founders accepted federal taxation, though not federal prohibition, of the liquor trade. This is a data point about founding-era attitudes toward alcohol, not evidence of original meaning for a constitutional provision ratified 130 years later.

Modern doctrine (Annotated Constitution)

Overview of Eighteenth Amendment, Prohibition of Alcohol (Amdt18.1)

The Eighteenth Amendment passed the House on December 17, 1917, and the Senate the following day; it appears officially at 40 Stat. 1059. Ratification was completed January 16, 1919, when the thirty-sixth of then-forty-eight states approved it, and Acting Secretary of State Polk certified adoption on January 29, 1919. By its own terms the Amendment did not take effect until one year after ratification.

The Twenty-First Amendment repealed the Eighteenth, and Titles I and II of the National Prohibition Act were later specifically repealed by the Act of August 27, 1935. Federal prohibition laws in various Districts and Territories were repealed on their own schedules: the District of Columbia (April 5, 1933, and January 24, 1934), Puerto Rico and the Virgin Islands (March 2, 1934), Hawaii (March 26, 1934), and the Panama Canal Zone (June 19, 1934).

Because the Twenty-First Amendment's ratification (December 5, 1933) left the National Prohibition Act without the Eighteenth Amendment's grant of authority to support it, prosecutions for violations of that Act — including pending appeals — had to be dismissed for want of jurisdiction once repeal took effect, since "after the expiration or repeal of a law, no penalty can be enforced, nor punishment inflicted, for violations of the law committed while it was in force." United States v. Chambers, 291 U.S. 217, 222-26 (1934) (quoting The General Pinkney, 9 U.S. (5 Cr.) 281, 283 (1809)). Only final judgments of conviction rendered while the Act was still in force survived. A "special excise tax" enacted as part of the machinery for enforcing the Eighteenth Amendment likewise became inapplicable automatically on repeal, even though Congress could still tax activity it separately forbade — the basic tax on distilled spirits remained valid and enforceable throughout the Amendment's life. United States v. Constantine, 296 U.S. 287 (1935); United States v. Yuginovich, 256 U.S. 450, 462 (1921); United States v. Stafoff, 260 U.S. 477 (1923); United States v. Rizzo, 297 U.S. 530 (1936). By contrast, liability on a bond conditioned on returning a vessel seized for illegal liquor transportation was not extinguished by repeal where the trial and conviction had already occurred in 1931: the liability became complete on breach of the bond's express condition, and a civil recovery action was unaffected by the loss of penal sanctions. United States v. Mack, 295 U.S. 480 (1935).

Historical Background (Amdt18.2)

Prohibition's roots reach into the Colonial Era, when most Americans — including several Founders — viewed moderate drinking as ordinary. Thomas Jefferson called "light and high flavored wines" a "necessary of life" for him; George Washington, after retiring from the presidency, operated one of the era's largest whiskey distilleries, once producing 11,000 gallons in a single year. Some Founders nonetheless warned against excessive consumption of distilled spirits specifically: Washington wrote to a French diplomat in 1788 that greater American consumption of French wine and brandy would "be more innocent to the health and morals of the people, than the thousands of Hogsheads of poisonous Rum which are annually consumed in the United States," and Alexander Hamilton, as the first Treasury Secretary, reported to Congress in 1790 that the "consumption of ardent spirits . . . no doubt very much on account of their cheapness, is carried to an extreme, which is truly to be regretted, as well in regard to the health and the morals, as to the economy of the community" — a recommendation that led Congress to enact the whiskey-distillation tax provoking the Whiskey Rebellion. Physician and Declaration signer Benjamin Rush's 1784 pamphlet An Inquiry Into the Effects of Ardent Spirits Upon the Human Body and Mind helped inspire the temperance movement that followed.

Temperance societies grew from small early-nineteenth-century groups urging moderation into a mass movement demanding total abstinence by the 1830s; at least fourteen states adopted some form of prohibition law by 1855, before the movement receded amid the sectional crisis over slavery. It resurged after the Civil War, drawing support from the Woman's Christian Temperance Union (founded 1874), industrialists concerned with workplace safety, and — per the wiki's ingested source — some African American writers including Frederick Douglass and Booker T. Washington, who argued the liquor trade harmed Black Americans' economic standing. The organization most responsible for the Eighteenth Amendment's proposal and ratification was the Anti-Saloon League, founded in Ohio in 1893, whose lobbying — directed by counsel Wayne B. Wheeler and, per the source, at points exploiting wartime xenophobia toward German-American brewers — targeted politicians at every level of government.

Early Federal and State Prohibition Laws (Amdt18.3)

Late-nineteenth-century state prohibition laws faced Commerce Clause challenges: the Supreme Court confirmed states could ban intrastate manufacture and sale of liquor, Mugler v. Kansas, 123 U.S. 623 (1887), but held the Commerce Clause barred states from banning the importation or first sale of out-of-state liquor still in its original package absent contrary federal law, Bowman v. Chicago & Northwestern Ry. Co., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890). Congress responded with statutes subjecting imported liquor to state regulation — the Wilson Act of 1890 and the Webb-Kenyon Act of 1913, the latter upheld in Clark Distilling Co. v. W. Md. Ry. Co., 242 U.S. 311 (1917) — and, during World War I, enacted its own wartime restrictions (the Lever Act's food-conservation liquor ban and the War-Time Prohibition Act of November 1918), sustained under the war power in Jacob Ruppert v. Caffey, 251 U.S. 264 (1920), at a time when the Court still read the Commerce Clause narrowly as to purely intrastate manufacturing, per Hammer v. Dagenhart, 247 U.S. 251 (1918) (later overruled by United States v. Darby).

Proposal and Ratification (Amdt18.4)

The Sixteenth Amendment's 1913 ratification, by supplying Congress an income-tax revenue source independent of liquor excise taxes, removed a major practical obstacle to nationwide prohibition. Senator Morris Sheppard of Texas introduced the joint resolution that became the Eighteenth Amendment on April 4, 1917; Congress proposed it on December 18, 1917, and the requisite three-fourths of states ratified it within about fourteen months, well inside the seven-year deadline Congress had imposed. The Senate approved the resolution by the requisite two-thirds vote on August 1, 1917; the House, after the Judiciary Committee added language preserving the states' own power to enforce prohibition laws within their jurisdictions, approved it 282 to 128 on December 17, 1917. Acting Secretary of State Frank L. Polk certified ratification on January 29, 1919, and the Amendment took effect one year later, on January 17, 1920.

Volstead Act (Amdt18.5)

The Eighteenth Amendment itself "did not 'prescribe any penalties, forfeitures, or mode of enforcement,'" Cunard S.S. Co. v. Mellon, 262 U.S. 100, 126 (1923), leaving Section 2 to authorize Congress and the state legislatures to enact "appropriate legislation." Congress did so with the National Prohibition Act, popularly known as the Volstead Act after its sponsor, Representative Andrew J. Volstead of Minnesota, enacted October 28, 1919 over President Wilson's veto. The Act defined "intoxicating liquors" stringently as any beverage containing 0.5% or greater alcohol by volume — reaching beer and light wines along with distilled spirits — and made every place of illegal manufacture, sale, or storage a "nuisance," subject to civil and criminal penalties including property forfeiture. It nonetheless permitted licensed manufacture and sale for medicinal, religious, industrial, and scientific purposes subject to state or local restriction, McCormick & Co. v. Brown, 286 U.S. 131, 133, 141, 143-45 (1932) (upholding, on Tenth Amendment grounds, a West Virginia permit requirement for nonresident shippers), and did not itself criminalize drinking or the private possession and consumption of beverages lawfully acquired before the Act took effect, Cunard S.S. Co. v. Mellon, 262 U.S. at 127; United States v. Farrar, 281 U.S. 624, 634 (1930) (Volstead Act did not criminalize the purchase of alcohol).

The Eighteenth Amendment and the Supreme Court (Amdt18.6)

Beginning with the consolidated National Prohibition Cases, 253 U.S. 350 (1920), the Supreme Court rejected challenges contending that the Eighteenth Amendment's proposal and ratification had violated Article V, holding that the Amendment had "become a part of the Constitution" and was to "be respected and given effect the same as other provisions of that instrument." The Court there also settled that Congress and the states held "concurrent" — not merely joint — power to enforce Prohibition.

Scope of the Eighteenth Amendment's Prohibition (Amdt18.7)

National Prohibition Cases also confirmed the sweeping scope of Section 1: the prohibition on manufacture, sale, or transportation of alcohol for beverage purposes applied throughout the "entire territorial limits of the United States" and reached interstate, intrastate, and foreign transactions alike. The Amendment bound both private parties and government actors — Congress, the state legislatures, federal and state courts, and public officers — and its prohibitions were self-executing, automatically invalidating any legislative act that purported to authorize liquor use contrary to Prohibition. Cunard S.S. Co. v. Mellon later construed "transportation" to mean "any real carrying about or from one place to another," and "territory" to include U.S. ports, harbors, bays, and a three-mile marginal belt of territorial waters, holding both domestic and foreign vessels subject to the Amendment and Volstead Act while in those waters. 262 U.S. at 122, 127-30.

Federal and State Enforcement Powers (Amdt18.8)

The Court applied a deferential standard to Congress's enforcement legislation, upholding the Volstead Act's stringent 0.5%-alcohol threshold, National Prohibition Cases, 253 U.S. at 387-88, and later sustaining Congress's power to restrict physicians from prescribing wines and spirits or intoxicating malt liquors for medicinal purposes as a reasonable means of closing loopholes for "clandestine" liquor traffic. Lambert v. Yellowley, 272 U.S. 581, 587-90, 594-97 (1926); James Everard's Breweries v. Day, 265 U.S. 545, 558-61 (1924). Congress's power to regulate industrial alcohol not usable for beverage purposes was likewise upheld as within the enforcement power. Selzman v. United States, 268 U.S. 466, 467-69 (1925). Because "concurrent power" did not mean "joint power," federal enforcement legislation took effect without requiring the states' approval, and the Amendment did not divide federal and state enforcement authority along an interstate/intrastate line — Congress could reach intrastate manufacture and sale directly. National Prohibition Cases, 253 U.S. at 387. (After Prohibition's repeal, the Court would extend Congress's Commerce Clause and Necessary and Proper Clause power to intrastate activity affecting interstate commerce in the aggregate on independent grounds, in Wickard v. Filburn, 317 U.S. 111, 124 (1942), and Gonzales v. Raich, 545 U.S. 1, 33 (2005).) States, in turn, could restrict liquor imports without violating the Dormant Commerce Clause, because state prohibition laws did 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." United States v. Lanza, 260 U.S. 377, 381-82 (1922). Lanza also rejected a Fifth Amendment Double Jeopardy challenge, holding that the same liquor-trafficking conduct could be separately prosecuted, convicted, and punished under both federal and state law. Hebert v. Louisiana, 272 U.S. 312, 314 (1926), reached the same result.

Ratification Deadline (Amdt18.10)

The Eighteenth Amendment was the first to specify a ratification deadline: Section 3 required the states to ratify within seven years of submission. Submitted December 18, 1917 and ratified January 16, 1919, it comfortably beat that deadline; the Supreme Court upheld Congress's power to impose such a deadline at all in Dillon v. Gloss, 256 U.S. 368, 375-76 (1921).