The Twenty-First Amendment

By 1932, Prohibition was visibly failing. Bootlegging had built a parallel illegal economy. Organized crime had grown wealthy and entrenched. Federal enforcement could not keep up. The Great Depression made the revenue once collected from legal alcohol look indispensable. The Democratic Party platform of 1932 called explicitly for repeal. Franklin Roosevelt won the presidency. The lame duck Congress proposed the Twenty-First Amendment in February 1933, before Roosevelt had taken office, and the required three-fourths of the states ratified it by December.

Ratification used the convention method rather than state legislatures, the only time that procedure has been used. The framers had provided for ratification by either method in Article V. Congress chose conventions for the Twenty-First Amendment partly because state legislatures, many in rural and Protestant districts, were thought to be more sympathetic to Prohibition than the broader public was. The amendment took effect on December 5, 1933, less than fifteen years after Prohibition had begun.

The text accomplishes two things. Section 1 repeals the Eighteenth Amendment. Section 2 forbids the importation of alcohol into any state in violation of that state's laws, preserving state authority over alcohol policy. The second provision has had a long jurisprudential life. State laws regulating the sale and distribution of alcohol receive deference under the Twenty-First Amendment that ordinary Commerce Clause doctrine would not provide. The amendment marked the end of the experiment with national prohibition and a return of alcohol policy to state and local authority. It also stands as a reminder of the Constitution's capacity for self-correction. A national policy enshrined in the founding document for fourteen years was removed by the same process that put it there.