Constitution
The Twenty-first Amendment: Repeal of Prohibition
The Twenty-first Amendment repealed the Eighteenth, and lets states control the import of liquor; it is the only amendment ratified by state conventions.
The text
Passed by Congress February 20, 1933. Ratified December 5, 1933.
Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.
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.
Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
In plain English
Section 1. The 18th Amendment is repealed.
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." This gives each state power to regulate or ban alcohol within its borders, and has been used to justify state controls on distribution, sales and licensing.
Section 3. The Amendment must be ratified by conventions in the states within seven years.
It is the only amendment ratified by state conventions rather than state legislatures, a method Article V permits and Congress chose here because it feared that legislatures, many of which had a "dry" majority, might not approve repeal. The delegates to the conventions were elected, in effect, in a referendum on repeal.
Ratification took less than ten months, ending on December 5, 1933.
What the Founders said
The Amendment arose from the experience of Prohibition rather than from the Founders' views. Still, Section 2 echoes a Founding-era principle: states have broad authority over the health, safety and morals of their residents, including over commerce in goods they regard as harmful.
The decision to use state conventions was an early test of the second Article V method of ratification. Convention delegates were chosen in elections held for the purpose, giving the voters a direct say.
The Amendment passed Congress in February 1933. Utah's convention on December 5, 1933, gave the thirty-sixth ratification, making it effective. The two-year interval from proposal to ratification was among the shortest of any amendment of its era.
How the courts have read it
- State Board of Equalization v. Young's Market Co. (1936): Section 2 allowed California to impose a license fee on imported beer.
- Craig v. Boren (1976): an Oklahoma law setting different drinking ages for men and women was not saved by the Twenty-first Amendment; the equal protection claim prevailed.
- California v. LaRue (1972): a state may regulate nude entertainment in establishments with liquor licenses under the Amendment's broad grant of power.
- Bacchus Imports, Ltd. v. Dias (1984): a Hawaii tax exemption favoring local liquor violated the Commerce Clause; the Amendment did not authorize discrimination against out-of-state products.
- Granholm v. Heald (2005): states may not allow in-state wineries to sell directly to consumers while banning out-of-state wineries from doing so.
- Tennessee Wine & Spirits Retailers Association v. Thomas (2019): a residency requirement for retail liquor licenses violated the Commerce Clause.
Why it matters now
The Twenty-first Amendment is a reminder that the Constitution's amendment process can undo mistakes. A policy imposed from the top, with limited consent, collapsed. The repeal also affirmed that the regulation of alcohol is best left to states, which have developed a patchwork from dry counties to state-run stores to open markets.
That patchwork is federalism in practice, and alcohol policy remains one of the most vivid examples of it. It also gives rise to tension with the Commerce Clause when states' regulations favor local producers, as the recent wine and retail cases show.
The Amendment is also a data point for debates over other policies. Some people draw from it the lesson that national prohibitions of private behavior invite failure; others draw different lessons. The state-by-state approach has been adopted for other issues as well, including marijuana, where states have legalized a substance still barred by federal law.