Twenty-First Amendment Research Articles

Perceptions of the eminent experts over the constitution (twenty-first amendment) act, 2015: an analysis

Perceptions of the eminent experts over the constitution (twenty-first amendment) act, 2015: an analysis

Prohibition in Southwestern Michigan by Norma Lewis and Christine Nyholm

Reviewed by: Prohibition in Southwestern Michigan by Norma Lewis and Christine Nyholm Chriss Lyon Norma Lewis and Christine Nyholm. Prohibition in Southwestern Michigan. Charleston, SC: The History Press, 2020. Pp. 127. Bibliography. Illustrations. Paper: $21.99. Authors Norma Lewis and Christine Nyholm explore the controversial topic of the Eighteenth Amendment to the US Constitution, known as Prohibition, in Prohibition in Southwestern Michigan. Passed by Congress on December 18, 1917, and ratified on January 16, 1919, the Volstead Act became law the following year and had both its supporters and dissenters. The book's title suggests that the focus will be southwestern Michigan; however, this is too narrow because the material presented covers a much greater area, including the entire Lower Peninsula. The format of the book is a combination of captioned photographs with short text chapters. The chronological flow gives the reader a history lesson much earlier than the 1920s, noting that the idea behind the evils of alcohol were rooted in earlier settlements. Conversations about "wet" and "dry" counties and cities turned into large-scale rallies and outspoken folks on both sides of the issue. This was not unique to southwestern Michigan but certainly a part of the national debate. The authors accomplish this well by explaining the pre-Prohibition arguments for and against the future bill. They make it clear that people in the area were informed about the topic and certainly had an opinion either way. The book further examines the problems encountered during the years of Prohibition and the ultimate demise of the era with the passing of the Twenty-First Amendment. An appealing aspect of the book is the inclusion of several well-known figures in the Prohibition era. Notable among them is Carrie Nation, a very radical member of the early temperance movement against the use of [End Page 154] alcohol. She would use a hatchet to destroy booze bottles and the bars serving them. Obviously, Al Capone was a major player in the era and can be associated with the spikes in crime and violence as he headed "The Outfit" gang in Chicago. The authors also include some of the humorous propaganda posters urging people to choose sobriety over drunkenness. Noticeable are several errors not picked up by the publisher. They are mostly spelling inconsistencies, including the reference to myself incorrectly as "Lyons" in several places, and a typo in the name of my book. I would have liked to see the publisher use end notes or a more extensive bibliography to bolster the material and provide further reading for those interested in the topic. While minor errors are noted, the context of the book is certainly worthy of a recommendation. It is apparent that the authors spent much time researching locations and taking photographs of alleged "speakeasies" and other liquor establishments still currently in business. Lewis and Nyholm cover a topic that touched all in southwestern Michigan and beyond from the late 1800s to the repeal of the Eighteenth Amendment in 1933 with the passage of the Twenty-First Amendment. Chriss Lyon Author of A Killing in Capone's Playground Copyright © 2021 Historical Society of Michigan

American Common Market Redux

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici curiae did not ask it to review the issue. The Doctrine was established by 19th Century Supreme Court decisions that set the legal framework for the American common market—until justices advocating the Doctrine’s abolition seemed close to a majority early in the present Century. The Tennessee Wine opinion eliminated that threat for the foreseeable future.

The Camel’s Nose Under the Tent: Next Steps for State-Based Alcohol Policy After Tennessee Wine and Spirits

Following the repeal of nationwide Prohibition with the ratification of the Twenty-first Amendment on December 5, 1933, states enacted broad controls on the manufacturing, distribution, and sale of alcoholic beverages. These state-based alcohol policies were adopted pursuant to § 2 of the Twenty-first Amendment, which provides that “[t]he 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.” Initially, courts construed this provision broadly to confer upon states the authority to exercise “large discretion” in protecting their citizens against the evil incident to intoxicants. States could prohibit any importation of alcoholic beverages which did not comply with conditions prescribed by the states “unfettered by the Commerce Clause.” But state-based alcohol policies must now overcome two additional considerations. First, the U.S. Supreme Court has recognized that § 2 of the Twenty-first Amendment does not supersede all previously adopted positive constitutional provisions. Second, particular attention must now also be given to the negative, or dormant, Commerce Clause. In fact, a trilogy of recent dormant Commerce Clause cases have called into question the states’ longstanding prerogative to regulate the importation of intoxicating liquors for delivery or use within their borders. The first was Bacchus Imports, Ltd. v. Dias, in which the Court held that Hawaii’s liquor-tax exemption for certain locally-produced alcoholic beverages violated the Commerce Clause. The second was Granholm v. Heald, which struck down wine-importation laws in Michigan and New York, finding that they discriminated against interstate commerce in violation of the Commerce Clause, and that such discrimination was neither authorized nor permitted by the Twenty-first Amendment. The third was Tennessee Wine & Spirits Retailers Association v. Thomas, which held that Tennessee’s two-year durational residency requirement for retail liquor store license applicants violated the Commerce Clause because it discriminated against nonresidents and was not justified as a public health or safety measure. Part II of this paper considers the history of state-based regulation of alcoholic beverages within the context of the states’ agreement to ratify the Twenty-first Amendment. It also provides a brief overview of the states’ regulation of alcoholic beverages immediately after the Amendment’s adoption. Finally, it considers the impact of other constitutional provisions. Part III discusses the Court’s initial interpretations of the Twenty-first Amendment. Part IV looks at the Court’s dormant Commerce Clause doctrine as it has been applied to state-based alcohol policies adopted pursuant to § 2. It analyzes Bacchus (liquor taxes), Granholm (imported wine), and Tennessee Wine and Spirits (durational-residency requirements). Part V considers Tennessee Wine’s impact on next steps for state-based regulation of alcoholic beverages. In particular, this part studies the decision’s impact on other states’ durational-residency requirements, direct-to-consumer shipping, and whether a national market for alcoholic beverages is inevitable. This section will also provide recommendations for state legislators, regulators, and the alcoholic beverage industry itself in the wake of the Tennessee Wine decision.

Jurisdiction of Military Courts over Civilian Terrorists in Pakistan: A Miscarriage of Justice

The jurisdiction of military court was extended over alleged terrorists under the Constitution (Twenty-first Amendment) Act, 2015, in order to permanently wipe out terrorism from Pakistan. The amendment was challenged and petitioners contended that jurisdiction of military courts could not be extended over alleged civilian terrorists because of their peculiar nature. Further, the presiding officer of the military court is a member of the executive, which contradicts the principle of judicial independence, an utmost essential element of safeguarding the due process of law. However, the apex court of Pakistan held that terrorism has a direct nexus with the safety and integrity of Pakistan, therefore, the Parliament was competent to expand the jurisdiction of military courts over civilian terrorists in order to secure the country’s safety and integrity and thus consistent with the recognized criminal justice system. This research critically analyzes the jurisdiction of military courts over civilian terrorists in accordance with the principle of judicial independence. It also identifies the breach of the fundamental rights of alleged civilian terrorists. This study also determines the capability of existing criminal law statutes of ensuring peace whilst maintaining justice for the accused persons. In order to achieve these objectives, this paper adopts a doctrinal research method and carries out an in-depth analysis of the amendments and judgments relating to the issue while also highlighting the constitutionality of the subject matter. Aside from that, juristic literatures and judgments of the superior courts are also analysed. The study concludes that an independent judicial tribunal is absolutely essential in order to ensure that justice is dispensed to the accused. It is further argued that the scope of the military justice system is limited to military personnel, which therefore cannot and should not be expanded over civilian terrorists.

On Prohibition

On Prohibition Robert Slayton (bio) Michael A. Lerner. Dry Manhattan: Prohibition in New York City. Cambridge, Mass.: Harvard University Press, 2007. 351pp. Notes and index. $22.50. Lisa McGirr. The War on Alcohol: Prohibition and the Rise of the American State. New York: W. W. Norton, 2016. xxii + 330 pp. Illustrations, notes, and index. $27.95. Since its inception, Prohibition has been viewed within two distinct contexts. The first, original lens was that the era was a zany, wild time. Take a look at the introduction for the television show The Roaring 20s, broadcast from 1960 to 1962. Images show flappers and young men in stylish fur coats dancing the Charleston, speakeasies, a man drinking from a hip flask, and police firing tommy guns during an auto chase with bootleggers. Meanwhile, the theme song extols: “The wild and reckless, never boring, roaring . . . twenties.”1 Malcom Cowley wrote of the decade: “Everywhere was the atmosphere of a long debauch that had to end,” or, as F. Scott Fitzgerald summed it up in “Echoes of the Jazz Age,” this was simply a decade focused on “what was fashionable and what was fun.”2 With the passage of the Twenty-First Amendment and then its ultimate repeal, the leading conception was equally simplistic: that Prohibition was a disaster, that it just did not work. There was little in the way of analysis of what it meant for U.S. society and history. The latest example of this approach was Daniel Okrent’s popular and widely reviewed (including an increasingly rare piece in the Sunday New York Times Book Review), Last Call (2010). At the outset, Okrent asks the reader, “How did a freedom-loving people decide to give up a private right that had been freely exercised by millions upon millions. . . . How the hell did it happen?” In answering this question, he provides some explanations (“a tax, a social revolution, and a war”) and a great many wonderful stories, such as: “It was absolutely impossible to get a drink in Detroit unless you walked at least ten feet and told the busy bartender what you wanted in a voice loud enough for him to hear you above the uproar.” In the end, however, it comes down to a sense that Prohibition simply collapsed. [End Page 478] Okrent bluntly concludes: “In almost every respect imaginable, Prohibition was a failure.”3 Two recent books have remedied this absence of analysis by providing major new interpretations of what Herbert Hoover labeled “The Noble Experiment.” Michael Lerner’s Dry Manhattan takes a look at Prohibition in New York City, using it as a test case to wring out the national implications of the movement to restrict alcohol. Lerner views the struggle to enforce the Volstead Act as one of the United States’ greatest examples of cultural/political wars, seeing it as a struggle over major issues. To Lerner, “Prohibition embodied a fourteen-year–long cultural conflict over the nature of American identity . . . and the political future of the country.” It became “the defining issue of the 1920s, one that measured the moral and political values of the nation . . . a key to understanding the cultural divides that separated Americans . . . as the United States was transformed by rapid economic growth and demographic changes” (p. 3). When New Yorkers rejected Prohibition, they instead “championed a style of political reform better suited to modern America,” leading to the New Deal in the next decade (p. 5). Even more, their opposition announced that city dwellers and immigrants from the recent Southern and Eastern European waves were Americans too, determined to take their place as citizens and as fundamental parts of the American mosaic. Prohibition was no simple story of ineptitude but “a debate about competing visions of American society” (p. 6). New York was actually seen as the great prize by the dry forces, its eventual vote for reform demonstrating the reform movement’s power and the strength of the tactics they had mastered. William Anderson, one of the Anti-Saloon League’s leading figures, made it his personal assignment to win over a state that seemed so unlikely a target. Making use of advocacy techniques and a legislature gerrymandered to give...

Stretching the Twenty-First Amendment Beyond Its Limit: A Critique of S. Wine & Spirits of Am., Inc. v. Div. of Alcohol & Tobacco Control

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Constitutional Choices: The Ratification of the Twenty-First Amendment through State Conventions

The factors that weigh into the choices groups make about pursuing their policy goals legislatively, administratively, or judicially is a matter of great scholarly debate. The 21st Amendment, which repealed the eighteenth amendment and is the only amendment ratified by state conventions, offers a unique opportunity to determine why groups and politicians chose that method of ratification. In this paper, I trace the evolution of the 18th and 21st Amendments. What factors led to the decision to choose the state convention path? It especially matters because the decision to ratify the constitution through the 21st Amendment has affected alcohol policy throughout the states (through the uneven development of the beverage industries and beverage distribution politics) and has implications for the normative debate over whether the US is in need of a Constitutional Convention.

State Regulation of Alcohol Distribution: The Effects of Post & Hold Laws on Output and Social Harms

The Twenty-first Amendment repealed prohibition, but granted the states broad power to regulate the distribution and sale of alcohol to consumers within their borders. Pursuant to this authority, states have established a complex web of regulations that limit the ability of beer, wine, and liquor producers to control the distribution of their product. From a consumer welfare perspective, one of the most potentially harmful state alcohol distribution regulations are “post and hold” laws (“PH laws”). PH laws require that alcohol distributors share future prices with rivals by “posting” them in advance, and then “hold” these prices for a specified period of time. Economic theory would suggest that PH laws reduce unilateral incentives for distributors to reduce prices and may facilitate tacit or explicit collusion, both to the detriment of consumers. Consistent with economic theory, we show that the PH laws reduce consumption by 2-8 percent. We also test whether PH laws provide offsetting benefits in the form of reducing a range of social harms associated with alcohol consumption. We find no evidence of such offsetting benefits. Taken together these results suggest that PH laws are socially harmful and result only in a wealth transfer from marginal alcohol consumers, who are unlikely to exert externalities on society, to wholesalers. These results also suggest a socially beneficial role for antitrust challenges to PH laws and similar anticompetitive state regulation. If states wish to reduce the social ills associated with drinking, our results suggest that increasing taxes and directly targeting social harms are superior policy instruments to PH laws.

State Regulation of Alcohol Distribution: The Effects of Post & Hold Laws on Output and Social Harms

The Twenty-first Amendment repealed prohibition, but granted the states broad power to regulate the distribution and sale of alcohol to consumers within their borders. Pursuant to this authority, states have established a complex web of regulations that limit the ability of beer, wine, and liquor producers to control the distribution of their product. From a consumer welfare perspective, one of the most potentially harmful state alcohol distribution regulations are “post and hold” laws (“PH laws”). PH laws require that alcohol distributors share future prices with rivals by “posting” them in advance, and then “hold” these prices for a specified period of time. Economic theory would suggest that PH laws reduce unilateral incentives for distributors to reduce prices and may facilitate tacit or explicit collusion, both to the detriment of consumers. Consistent with economic theory, we show that the PH laws reduce consumption by 2-8 percent. We also test whether PH laws provide offsetting benefits in the form of reducing a range of social harms associated with alcohol consumption. We find no evidence of such offsetting benefits. Taken together these results suggest that PH laws are socially harmful and result only in a wealth transfer from marginal alcohol consumers, who are unlikely to exert externalities on society, to wholesalers. These results also suggest a socially beneficial role for antitrust challenges to PH laws and similar anticompetitive state regulation. If states wish to reduce the social ills associated with drinking, our results suggest that increasing taxes and directly targeting social harms are superior policy instruments to PH laws.

Prohibition and Repeal: A Short History of the Wine Industry's Regulation in the United States

AbstractThe United States wine industry has experienced tremendous growth in the past twenty-five years. The number of wineries in the United States has grown to almost 5000, located in all fifty states, and creating over a million full time jobs. Alcohol distribution laws that hinge on the Supreme Court's reconciliation of the Twenty-first Amendment and the Commerce Clause have significantly hindered the industry's ability to expand. Current interpretations of the 21stAmendment give states unprecedented freedom to regulate interstate commerce in alcoholic beverages. The resulting regulatory diversity presents problems both domestically and internationally. (JEL Classification: K2, L5, N4)

The Twenty-First Amendment, Granholm and the Future of the Three-Tier System

Given the importance of wine today and the questions left unanswered in Granholm, it is all too likely that the Court will once again be called upon to decide the future of the wine industry. This paper examines the historical, legal, and corporate structure of the wine industry in the United States, arguing that, post-Granholm, courts will continue to invalidate state alcohol statutes that discriminate against out-of-state businesses. This paper also discusses how states will likely respond to Granholm's application on various other alcohol regulations concerning wineries, retailers and distributors. Furthermore, this paper argues that the potential invalidation of state statutes prohibiting retailers from purchasing wine from out-of-state distributors will fundamentally alter the balance of power within the wine industry resulting in the demise of many wineries, a reduction in consumer choice and the permanent alteration of the business fundamentals of the wine industry.

Twenty-First Amendment Enforcement Act of 2000

Do states need federal action to enforce their own laws about alcohol sales? There was a federal law that predated the Prohibition Era, but some federal legislators recently believed that more legal enforcement was needed due to increasing direct purchases of alcohol that bypassed state liquor control laws. Sales to underage people comprised the primary motive for the new Twenty-First Amendment Enforcement Act of 2000. Establishments now face more federal prosecution with the new law in addition to prosecution under earlier federal and state laws if they sell to underage people. The debate is over what kind of legal “teeth” are needed. Another issue is the matter of easy credit card offers to high school and college students, which involves more than just alcohol purchases.

Regulation of Interstate Wine Shipments

Does a State's regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the Twenty-first Amendment?

Smokey and the Bandit in Cyberspace: The Dormant Commerce Clause, the Twenty-first Amendment, and State Regulation of Internet Alcohol Sales

Recently, federal courts have used the dormant Commerce Clause doctrine to strike down state regulations of alcohol sales, as applied to out-of-state alcohol producers and purchasers, despite the text of the Twenty-first Amendment, which appears to authorize such state regulation. This article argues that in striking down state regulations, these courts have ignored constitutional text, evinced indifference to the history of the Twenty-first Amendment, and misapplied Supreme Court precedent. In sum, they have come close to effecting a virtual repeal of the Amendment. But, I argue, there is opportunity in this new wave of litigation - opportunity to repair the erosion of state power under the Amendment caused by years of parsimonious interpretation by the U.S. Supreme Court and carried further by the recent decisions. In this essay, I do three things. First, I summarize the history of the framing and ratification of the Twenty-first Amendment, and demonstrate that its purposes were understood to go well beyond merely allowing states to pursue temperance policies. Second, I chart the evolution of the Supreme Court's Twenty-first Amendment jurisprudence, and describe the Court's move from rules to standards in applying the Amendment, which has resulted in a dramatic reduction of state power over alcohol. Finally, I critique the recent district court decisions that limit states in the one area in which their power remained largely unquestioned by the Supreme Court - the regulation of liquor imports from out-of-state. By way of conclusion, I offer suggestions to lower courts and to the Supreme Court for properly applying the Amendment in future cases.

Constitutional Crossroads: Reconciling the Twenty-First Amendment and the Commerce Clause to Evaluate State Regulation of Interstate Commerce in Alcoholic Beverages

Trying to purchase a highly rated, limited-production wine from a local wine retailer can be a fruitless endeavor. In most states, wine retailers are permitted to purchase stock only from a state-licensed wholesaler. If a licensed wholesaler does not carry the particular label a customer desires, the customer will find it difficult or impossible even to special order the wine through a local retailer. Growth in mail-order and electronic commerce, however, has provided new channels through which consumers and producers or retailers can reach each other. The wine industry, particularly small wineries and specialty wine retailers, has made swift use of these burgeoning avenues of commerce. Many wineries and wine retailers permit customers to order coveted bottles of wine over the Internet through their websites. Some oenophiles may be concerned that wines purchased through mail-order or over the Internet will suffer poor travel or storage conditions in the hands of common carriers during the necessary shipping. A Florida resident who purchases wine from an out-of-

Alcohol Direct Shipment Laws, the Commerce Clause, and the Twenty-First Amendment

Alcohol Direct Shipment Laws, the Commerce Clause, and the Twenty-First Amendment

Democracy at Rest: Strategic Ratification of the Twenty-First Amendment

The Prohibition (Eighteenth, 1919) and repeal (Twenty-First, 1933) amendments, which represent the only case of a later amendment directly reversing an earlier one, were ratified by the two different methods allowed by Article V of the United States Constitution: the former by state legislatures, the latter by state conventions. This essay examines the legislatures-or-conventions dichotomy as a microcosm of William Riker's treatment of liberalism and populism, with specific attention paid to the state conventions that ratified repeal. Using previously uncollected county data from the special elections to choose the 1933 convention delegates, this study demonstrates that invocation of the convention method was strategic, and intended not only to legitimate the Twenty-First Amendment but also to improve its chances of passage.

Democracy at Rest: Strategic Ratification of the Twenty-First Amendment

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The Twenty-First Amendment and State Control over Intoxicating Liquor: Accommodating the Federal Interest

The Twenty-First Amendment and State Control over Intoxicating Liquor: Accommodating the Federal Interest