exploring
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The
18th
Amendment, ratified in 1919 and with an
effective date of January 17, 1920, declared
(with minor exceptions) the production,
transport, and sale of alcohol to be
illegal. Prohibition was a disaster,
leading to more organized crime as well as
poisoning from crudely distilled
alcohol. By 1933, the "wets" secured
ratification of the 21st Amendment, repealing
the 18th Amendment, but also establishing the
power of states to regulate the importation
and possession of intoxicating liquors within
their own borders. It is the meaning of
Section 2, recognizing state authority to
regulate alcohol that has been the subject of
a series of rather inconsistent Supreme Court
decisions. Under a maximalist theory of
Section 2, states have complete authority to
regulate alcohol in their own borders, even in
ways that would otherwise be inconsistent with
other provisions of the Constitution
(including the Commerce Claue, the Equal
Protection Clause, and the First
Amendment). Under the minimalist theory,
however, the 21st Amendment gives the states
to regulate the importation of alcohol but not
in ways the violate other previously
enforceable provisions of the Constitution. The
Courts first look at the 21st Amendment, in
State Board of Equalization v Youn (1936),
resulted in a fairly maximalist interpretation
of state powers. The Court upheld
a California law imposing a $500 fee to import
beer into the state that had been challenged
by breweries in Wisconsin and Missouri as a
violation of the dormant Commerce Clause
because it discriminated against of state
commerce. The Court recognized that in
the absence of the 21st Amendment, the law
would have been a clear violation of the
Commerce Clause. In
LaRue v California (1972), the Court
considered another California law, this one
that denied liquor licenses to establishments
in which persons performed acts "simulating
sexual intercourse, masturbation, beastiality,
oral copulation,...or touching, caressing, or
fondling on the breast, buttucks, anus or
genitals." The state law was a response
to the opening of "bottomless" dancing clubs
associated with some of the listed
activities. Because nude dancing is not
"obscene" under Supreme Court decisions, and
in fact was suggested to have a degree of
First Amendment protection, the state relied
on its 21st Amendment power to regulate
alcohol sales, assuming that the lewd
activities in question might not be otherwise
within its power to prohibit. The
Supreme Court concluded that the Twenty-First
Amendment qualifies the First Amendment, thus
allowing states to regulate expression in
establishments that serve alcohol, even when
such restrictions might violate the First
Amendment if applied elsewhere. Ten
years later in N. Y. State Liquor Authority v
Bellanca, the Court extended reasoning to
topless dancing. The Court declared,
"Whatever artistic or communicative value may
attach to topless dancing in overcome by the
state's exercise of its broad powers arising
under the Twenty-first Amendment." In
1996, however, in the 44 Liquormart, Inc.
v Rhode Island, the Court disavowed its
earlier conclusion and made clear that the
Twenty-First Amendment, while it may allow
restrictions on alcohol that would otherwise
violate the Commerce Clause, in no way
qualifies the reach of the First
Amendment. The Court therefore concluded
that Rhode Island's restrictions on
advertising the price of alcohol violate the
First Amendment. (Similarly, in striking down
an Oklahoma law that allowed 18 to 20 year-old
females, but not males, to buy beer, the Court
said that the 21st Amendment gave states no
power to enact laws that would otherwise
violate the Equal Protection Clause.) |
Cases State Bd. of Equalization v Young's Market (1936) California v LaRue (1972) Granholm v Heald/ Swedenburg v Kelly (2005) 44 Liquormart took its challenge to Rhode Island's restrictions on advertising alcohol prices to the Supreme Court. (photo:ABA Journal) 44 Liquormart v Rhode Island (1996) Questions 1. The Court, in LaRue
and 44 Liquormart, wrestled with the
question of whether the Twenty-First Amendment
qualified the First Amendment. What do you
think is the best answer to that question
2. Which side has the more accurate view of the intent of those who drafted and ratified the 21st Amendment, the majority or the dissenters in Granholm? 3. In the early 1970s, Kansas was a mostly dry state, with state laws prohibiting all but the sale of beer containing less than 3.2% alcohol. Vern Miller, attorney general from 1970-1974, so vigorously enforced Kansas alcohol laws that he famously raided an Amtrak train, busting bartenders for serving alcohol to passengers while traveling through Kansas. His raid even led airlines to stop serving alcohol while flying over Kansas skies. Does the 21st Amendment really give states the power to arrest flight attendants serving alcohol while in state air space? Link Wikipedia: Twenty-first Amendment |