Alcohol All Over The Place

By Professor Aaron Caplan

This was originally posted on PrawfsBlawg as part of the Strange Bedfellows series.

For a topic that supposedly is not part of the standard Con Law curriculum, federal alcohol prohibition—and its repeal by the 21st Amendment—appears remarkably often in the typical syllabus.

The two alcohol-related cases most firmly established in the canon and reproduced in whole or in part in virtually every Con Law casebook are South Dakota v. Dole (1987) (allowing Congress to condition receipt of federal highway funds on states raising their drinking ages to 21) and Craig v. Boren (1976) (adopting intermediate scrutiny for sex-based classifications under equal protection, in a case where state established different drinking ages for males and females). Other alcohol cases sometimes taught in Con Law or related electives include Wisconsin v. Constantineau (1971) (invalidating on procedural due process grounds a statute allowing police to forbid sales of alcohol to problem drinkers), Larkin v. Grendel’s Den (1982) (invalidating on Establishment Clause grounds a zoning ordinance that gave veto over liquor licenses to nearby churches); 44 Liquormart, Inc. v. Rhode Island (1996) (invalidating state liquor advertising laws under the commercial speech doctrine), and Granholm v. Heald (2005) (invalidating under the dormant commerce clause doctrine a state law forbidding interstate direct-to-consumer wine sales while allowing similar intrastate sales).

Although alcohol is a ubiquitous feature of fact patterns across many different doctrines, it tends not to be a focus of Con Law teaching. One can understand why: food and beverage law is a niche practice that need not be studied by all law school graduates, and it is not tested on the bar exam. As a result, the 18th and 21st Amendments can be safely treated as a source of constitutional trivia. Did you know that the 18th Amendment is the only amendment to be repealed in full? Did you know that the 21st Amendment was the only amendment that required ratification through state conventions rather than state legislatures? Did you know that the 21st Amendment, like the 13th, has no state action requirement and can be directly violated by private individuals? (On the latter point, see Laurence Tribe, “How to Violate the Constitution Without Really Trying,” in William Eskridge & Sanford Levinson, Constitutional Stupidities, Constitutional Tragedies (1998).)

One might ask what a unit in a Con Law class would look like if it foregrounded the 21st Amendment, instead of leaving it at the margins.

Section 1 of the Amendment repealed the 18th Amendment, returning the Constitution to its pre-prohibition state, but Section 2 seeks (somewhat inartfully) to guarantee the power of a state to stay dry if it wishes: “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.” Does this represent no more than a federal ban on individuals violating state liquor bans (essentially constitutionalizing the similar federal statute upheld in Clark Distilling Co. v. Western Maryland Railway (1917))? Or does it mean, as Justices Brennan and O’Connor argued in their Dole dissents, that Section 2 is designed to give states broader control over alcohol policy? Under this reading, the textual references to transportation and importation connote a broader control. One can ask similar questions about the 19th Amendment: perhaps it should have been read to guarantee a wide range of equal rights for women—as argued by the majority in Adkins v. Children’s Hospital (1923) and the dissenters in West Coast Hotel v. Parrish (1937)—instead of limited to its text, as occurred in practice.

Students would readily see the pattern of the modern alcohol cases: a state relying on a 21st Amendment argument will always lose. To harmonize two arguably competing provisions of the Constitution, the Court routinely gives the 21st Amendment a narrow reading, where it essentially means that states may regulate alcohol so long as they do not violate any other provision of the constitution, be it enumerated rights (like equal protection, due process, religion, speech) or unenumerated structural concepts (like the dormant commerce clause), and subject to override by federal laws enacted under the commerce power that have preemptive effect. But must the harmonizing always come at the cost of the 21st Amendment? Take Craig v. Boren, which privileged the Equal Protection Clause over the 21st Amendment. Given that Section 2 of the 21st Amendment was enacted decades after the Equal Protection Clause—and given the canon of construction that a later, narrower enactment should control over an earlier, more general one—perhaps the harmonization should operate in the other direction, so that a state may not discriminate on the basis of sex unless it is in the course of exercising its reserved power over alcohol. That approach is legally possible, but unpalatable to our hierarchy of values. Sex equality is simply more important than alcohol regulation, and so is freedom of speech, religion, and so on. But how is the importance of a constitutional value recognized, and should that be the business of the courts?

In a unit focusing on the 21st Amendment, the 5-4 decision in Granholm v. Heald would have special pride of place, since it explains how the language of Section 2 was designed specifically to interact with the Supreme Court’s then-existing dormant commerce clause doctrine. If Granholm is taught as an example of the dormant commerce clause in a unit without a focus on alcohol, it would likely be drastically edited down to size. But the case’s clash of values—and of interpretive methodologies—breathes more freely when one thinks about Granholm as an alcohol case as well as an interstate commerce case.