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CONSTITUTIONAL AREAS OF CONSIDERATION

The examination of three constitutional sources are relevant

to a constitutional analysis of the bill: the Twenty-First Amend

2/

ment, the Commerce Clause, and the Tenth Amendment. These areas

transportation or importation into any State, Territory, or possession of the United States for the delivery or use therein of

2/ See, U.S. Const. art I, § 3, cl. 3.

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intoxicating liquors, in violation of the laws thereof, is hereby prohibited. The question thus arises whether the constitutional

declaration of certain states' rights in section 2 prevents Congress from establishing a national drinking age through its power to regulate

interstate commerce.

History of Section 2

Two competing positions in regard to the appropriate interpretation of section 2 have been suggested. The first position, sometimes called the "absolutist" position, contends that the section grants the states complete authority over all aspects of the liquor industry within their borders. The second position, at times called the "federalist" position, argues that the section was designed to allow states willing to be dry to be so, but that Congress otherwise retained power over interstate com3/ merce in liquor.

The legislative history of the Amendment is ambiguous. By exam ining debates and legislative statements, support can be gleaned for both of these theories. For example, Senator Walsh who espoused the "absolutist" position argued that the purpose of [the section is] to make the intoxicating liquor subject to the laws of the state once 4/ it passed the state line...."

In contrast, Senator Fess, a proponent

of the "federalist" position stated that section 2 "is designed to permit

3/ See, 75 Col. L. Rev. 1578, 1579-1581 (1975); and Economic Localism in State Alcoholic Beverage Laws--Experience Under the Twenty-First Amendment, 72 Harv. L. Rev. 1145, 1147 (1959).

4/ 76 Cong. Rec. 4219 (1993).

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the Federal authority to assist the states that want to be dry to remain 5/

dry."

More confusion surrounds Congress' decision to delete a proposed section which would have provided that Congress shall have concurrent

power to regulate or prohibit the sale of intoxicating liquors to be
6/
Some legislators opposed this

drunk on the premises where sold."

on the "absolutist" ground in that it gave Congress power in the purely state area of alcohol regulation.

Others opposed it on the

more limited "federalist" ground that it might be read to allow Congress to authorize saloons in states that opposed them.

Arguments favoring the federalist approach drew support from

the history of the language used in that section. Before prohibition, dry states found themselves flooded with liquor that was in its original package and that had been shipped in interstate commerce and hence was often beyond the states' power to control. To allow the dry states to remain dry, Congress passed the Webb-Kenyon Act, which in part states that the shipment or transportation. ...of. .intoxicating liquor

...into any state. . .in violation of any law of such State. . .is 1/

hereby prohibited." Certain individuals felt that the Webb-Kenyon

Act might be unconstitutional because it permitted the states to
interfere with legitimate interstate commerce, but the statute was
8/
The enactment of the Eighteenth

upheld by the Supreme Court.

5/ 76 Cong. Rec. 4219 (1933).

6/ 76 Cong. Rec. 4168 (1933).

7' Act of March 1. 1913, 37 Stat. 699.

Clark Listilling Co. v. Western Marylard ky. Co. .-21.s. 311 (1917).

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9/

Amendment and its creation of prohibition rendered the Webb-Kenyon Act
Boot, although the Act was never formally repealed. At the time of the
enactment of the Twenty-First Amendment, many Senators favored section
2 of the amendment as a permanent enactment of Webb-Kenyon language.
Some commentators concluded that the similarity of language between
section 2 and Webb-Kenyon was designed to achieve the "federalist" ends,
thus allowing the dry states to remain dry, but preserving federal power.
Examining the decisions of the Supreme Court involving the interpre-
tation of the Twenty-First Amendment, it appears that the Amendment was not
designed to eliminate all federal control over the interstate aspects of
the liquor industry. Early decisions preserved the states' rights to
exercise considerable control over liquor imported from other states.
However, later decisions have stated the position that the Twenty-First
Amendment does not outweigh important federal interests. Thus, Twenty-
First Amendment arguments have failed in the Supreme Court when they
11/
have conflicted with the export-import clause, the equal protection
12/
and the establishment clause.

clause,

13/

the due process clause,

10/

14/

9/ See, 21 Cornell L. Q. 504, 510 (1936); 24 Syracuse L. Rev. 1131, 1133 (1973); 27 N.Y.U. L. Q. 127, 132 (1952); 40 Tenn. L. R. 465, 471-472 (1973); and 8 Geo. Wash. L. Rev. 819, 822 (1940).

10/ State Board v. Young & Market Co., 299 U.S. 59 (1936); Mahoney v. Joseph Triner Corp., 304 U.S. 401 (1938); Joseph S. Fuch & Co. v. Mckittrick, 305 U.S. 395 (1939); and Indianapolis Brewing Co. v. Liquor Control Commission, 305 v.s. 391 (1939).

11/ Department of Revenue v. James Beam Co., 377 U.S. 341 (1964).

12/ Craig v. Boren, 429 U.S. 190 (1976).

13/ Wisconsin v. Constantineau, 400 U.S. 433 (1971).

14/ Larkin v. Grendel's Den, Inc., 10? S.Ct. 505, 510 n. 5 (1982).

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Even when the Court has used the Twenty-First Amendment to support
its decisions, as with the decisions allowing states to ban nude
dancing in establishments serving liquor, the Court's theory has been
consistent with the view that section 2 of the Amendment was designed
to further temperance. In view with this reasoning, the Court has
held that: "[t]he State's power to ban the sale of alcoholic bev-
erages entirely includes the lesser power to ban the sale of liquor
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on premises where topless dancing occurs."

The bill appears to involve the interaction of congressional power
mandated under the commerce clause with section 2 of the Twenty-First
Amendment. The Court's decisions in this area have clearly rejected
the "absolutist" view that Congress is without power over the liquor in-
16/
dustry. In Jameson & Co. v. Morgenthau,

an importer and distributor

of Scotch Whiskey argued for the "absolutist" viewpoint, stating that

federal labeling requirements for alcoholic beverages were unconstitutional. The Court's clear response stated:

Here, the Federal Alcohol Administration Act was attacked upon the
ground that the Twenty-First Amendment to the Federal Constitution
gives to the States complete and exclusive control over commerce in
intoxicating liquors, unlimited by the commerce clause, and hence
that Congress has no longer authority to control the importation of
these commodities into the United States. We see no substance in
this contention. 17/

15/ See, New York State Liquor Authority v. Bellanca, 452 U.S. 714, 717 (1981); and California v. LaRue, 409 U.S. 109 (1972).

16/ 307 U.S. 171 (1939).

17/ Ibid., at 172-173.