The only constitutional amendment ever repealed was the 18th which had ushered in Prohibition. The 18th Amendment was also the only amendment to restrict individual liberty rather than restrict government power.1 As the only such restriction, it was the only constitutional amendment at odds with the unalienable rights outlined in the Declaration of Independence and contrary to the natural inclination of humanity for freedom. The failure of the 18th Amendment demonstrates the results of government attempting to impose on its population laws contrary to human nature. Government loses its legitimacy and general lawlessness is the result.
The Eighteenth Amendment had been the product of 178 years of efforts to ban alcohol in the United States that started with a ban in Georgia in 1742. The ban of the Eighteenth Amendment went into effect January 16, 1920. It lasted a mere thirteen years.
The stories of Prohibition, including gangsters like Al Capone and federal enforcers such as Eliot Ness and the Untouchables are well known. In light of the atmosphere created by Prohibition,2 a political movement to elect “wet” legislators3 grew and on Feb. 20, 1933 Congress sent the following proposal to the States:
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 The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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.
With the ratifications of Ohio, Pennsylvania and Utah on Dec. 5, 1933, the 21st Amendment became effective and Prohibition was ended.
Four Rare Elements of the 21st Amendment
The 21st Amendment, although only in three sections, contained four elements unusual to the Constitution. Three are unique and the fourth is rare:
- first and only amendment to repeal another amendment
- only Amendment Ratified by State Conventions
- only Amendment to Grant Specific Authority to the States.
- one of only two Amendments to prohibit private conduct.
21st Amendment Repeals the 18th
By 1933, the Constitution had been amended 20 times. Some amendments had modified prior amendments or extended their reach. The Fourteenth Amendment for example, extended most of the Bill of Rights to the States. In repealing the Eighteenth Amendment, the Twenty-First became the only Amendment to repeal another.
21st Only Amendment Ratified by State Conventions
The Constitution’s Article V provides for two methods for State ratification of amendments submitted by Congress. One is by the votes of the state legislatures. For all of the other 26 amendments this has been the method of ratification. The other method is by state conventions with convention members chosen for the single purpose of considering the proposed amendment.
The 21st Amendment’s Section 3 required state conventions to consider the proposed amendment. There was congressional concern that the normally elected legislators were either beholden to the temperance lobby or sympathetic to it. Electing special conventions was the solution to this potential political problem.
21st Only Amendment to Grant Specific Authority to the States
While the Tenth Amendment provides for the undefined reservation of authority to the States, only the 21st specifically grants power to the States. Section 2 provides broad States authority to regulate the delivery or use of intoxicating liquors. In many instances this has been found to override the authority granted to Congress by the Commerce Clause.
The extent of that authority remains a matter of contention to the present day as demonstrated by the mail order wine case of Granholm v. Heald, 544 U.S. 460 (2005).
21st One of Only Two to Regulate Private Conduct
The Thirteenth Amendment prohibits an individual from enslaving another. The Twenty-First prohibits someone from bringing alcohol into a State while disobeying its liquor laws. These are the only two constitutional provisions to regulate private conduct.
As constitutional scholar Lawrence Tribe has put it: “there are two ways, and only two ways, in which an ordinary private citizen … can violate the United States Constitution. One is to enslave someone, 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?”
18th Amendment Demonstrates Result of Government Overreach
The experiment of Prohibition demonstrates the result of government overreach. People ultimately will not obey the law, the respect for the legitimacy of government will fall and the result will be general lawlessness. The 18th and 21st Amendments should stand as a lesson to the limits of what government can achieve when the means employed are inconsistent with the general human desire to be free from government interference in one’s life.
1The Bill of Rights principally works as a restriction on government. The two other functions that constitutional amendments have generally served is to expand and protect voting rights and to make technical changes in government organization. The exception to these uses of constitutional amendments is the 16th, which by authorizing the income tax vastly expanded government authority.
2The true result of Prohibition was the establishment of organized crime and the creation of a national police force.
3Prior to the 18th Amendment, states that had banned alcohol were known as “dry” states and those that allowed alcohol were known as “wet”. After the Amendment went into effect the term “wet” was used for those taking the position that the Amendment should be repealed.