Term Paper on "21st Amendment"

Term Paper 6 pages (1727 words) Sources: 1+

[EXCERPT] . . . .

21st Amendment and Its Impact on American Society

Before history began, humankind was already using alcohol for medicinal and recreational purposes. Today, more people consume alcohol than every before, but the attempt to outlaw this practice in the Unites States in January 1919 was well-intentioned but clearly misguided. The impact of Prohibition on the American consciousness was probably as diametrically opposite to that intended as possible, and crime ran rampant in many parts of the country as a result. When it was repealed by the 21st Amendment, the nation celebrated, leading many modern observers to wonder why such a law was passed in the first place. To this end, this paper will provide a discussion of the history, creation and ratification of the 21st Amendment to the U.S. Constitution. An examination of why Americans felt the amendment was necessary and what effect has it had on society is followed by a summary of the research in the conclusion.

Review and Discussion

History of the Twenty-First Amendment. In 1920, the results of a 200-year-old campaign against the sale and consumption of alcohol in the United States culminated in the passage of the 18th Amendment to the U.S. Constitution, which stated that "the manufacture, sale or transportation of intoxicating liquors... For beverage purposes, is hereby prohibited." At the time, this amendment struck a response chord with many American citizens who ardently believed it would transform America into "a law abiding, pure and healthy country" by eliminating alcohol's destructive effects, such as crime, poverty and low productivity; however, the results of earlier Prohibition statutes suggested that things would go otherwise (Bryce 37). For example, Bryce points out that the 1734 Act of Georgia was clearly indicative of what could be expected when Americans were not allowed to drink, "including avoidance through bootlegging and moonshining, bribery and the failure of the courts to convict offenders -- and was repealed within eight years" (Bryce 37). A prohibition law was subsequently passed in Maine in 1851, and comparable legislation was passed in 13 other states; however, many of the same issues emerged and enforcement was so difficult that repeal followed, in every case but one, before the Civil War. "Hence one asks why the 18th Amendment was passed in the light of such evidence" (Bryce 37). In practice, though, history has shown that in order to be successful, prohibition initiatives must be able to pass two fundamental tests: 1) they must be able to command overwhelming public support; and 2) the prohibition must be capable of practical enforcement. "In liberal democracies," the editors of the New Statesman suggest (1997), "they should pass a third: things should not be prohibited merely because many, or even most, dislike them" (emphasis added) (5). This attempt to legislate morality resulted in an enormous amount of criminal activity, both on the part of those who provided illegal alcoholic beverages to the American public - but by making criminals out of ordinary Americans who only wanted to "wet their collective whistles."

This point is also made by Eng, who points out that, as important as it was at the time in U.S. history, "Many Americans today find it difficult to relate to the mood in the United States during the time leading up to Prohibition" (Eng 1849). The failed experiment with prohibition was in reality part of a series of constitutional changes that characterized the climax of the Progressive movement; for instance, the income tax amendment had taken effect in February 1913, and the provision for the popular election of U.S. senators quickly followed in May of the same year (Kyvig 53). As a result, "The prohibition amendment was proclaimed as ratified on January 16, 1919, and was declared in effect the following January, while the women's suffrage amendment won adoption in August 1920. Thus, in little more than seven years, four major objectives of reformers from the early Populists to the age of Woodrow Wilson's New Freedom had presumably been graven in stone as the law of the land" (Kyvig 53).

Creation and Ratification of the 21st Amendment. The issues surrounding the prohibition of alcohol consumption in the United States were certainly not resolved in 1919 and calls for the repeal of that ill-fated amendment began almost as soon as it was adopted; efforts to enforce it had been largely unsuccessful, and a substantial increase in crime in the 1920s was attributed to it (Livingston 211). In response, a number of resolutions to repeal the prohibition were introduced over the next decade and on February 20, 1933, Congress submitted an amendment to the states that was ratified so quickly that Constitutional scholar still cite it as an example of the "system working." In fact, though, "This is the only instance in which the procedure of ratification by state conventions has been employed" (Livingston 211).

During 1933, laws were passed in 43 states that provided for conventions in that or the following year (with the exceptions of Georgia, Kansas, Louisiana, Mississippi, and North Dakota) (Livingston 211). During the same year conventions were held in thirty-eight states of which thirty-seven ratified the amendment and one (South Carolina) rejected it. The thirty-sixth ratification was received in the late afternoon of December 5, 1933 and the certificate was issued by the Secretary of State less than an hour later (Livingston 211).

On December 6, 1933, the thirty-seventh ratification was received from Maine; as a result, it required less than eleven months after its submission to the states for the amendment to be ratified by the requisite three-fourths and the ill-fated experiment of national prohibition ended (Livingston 211). One of the reasons the process went so smoothly may have been based on a misconception among lawmakers at the time. For example, in his essay, "No More 'Cherry-Picking,'" Aaron Nielson (2004) reports that the 21st Amendment achieved the required votes in each house of Congress without causing much substantive debate, most likely because the majority of Congressmen at the time considered section one of the amendment, the simple repeal of constitutional Prohibition, as being its main thrust: "It seems that sections two and three of the Amendment were seen as being primarily procedural sections, necessary to support and implement section one" (Nielson 281). The implications of that fateful misperception have come back to haunt legislators today, particularly as they apply to section two.

In fact, there are only two ways an ordinary citizen acting in a private capacity can manage to violate the U.S. Constitution in the 21st century: "One is to enslave someone, violating the Thirteenth Amendment, and the other is to bring a bottle of wine into a state in violation of its alcoholic beverage control laws" (1849). In this regard, Section Two of the Twenty-First Amendment provides: "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." The legal authority behind this section is based on early Supreme Court cases that provided the individual states with broad latitude in exercising this power (Eng 1850).

The other side of this Constitutional debate is found in the Commerce Clause that provides Congress with the power "to regulate Commerce with foreign Nations, and among the several states"; in the past, the courts have traditionally interpreted the Commerce Clause as being both an express grant to Congress of power to regulate interstate commerce, as well as a constraint on the authority of the states to regulate interstate trade (Eng 1850). The Constitution, though, is not specific concerning the parameters of the Commerce Clause when there is no specific cause to be addressed by Congress. According to Constitutional law professors John Nowak and Ronald Rotunda, "When Congress has not spoken clearly, the Court and commentators often refer to this question as the dormant (or negative) Commerce Clause problem" (cited in Eng 1850).

In the gray area that exists today, the issue concerns identifying the degree to which states can legislate in a fashion that may impact on interstate commerce when there is corresponding federal law to address the issue; in this regard, Nowak and Rotunda noted that the courts are "in effect attempting to interpret the meaning of Congressional silence," and Eng adds that, "Although not always a straightforward or uncontested position, the courts have generally interpreted the dormant Commerce Clause to prevent States from promulgating protectionist laws that burden interstate commerce" (Eng 1850). When there is no relevant case law available in such cases today, U.S. district courts typically use precedents that attempt to resolve such conflicts between the Commerce Clause and Twenty-First Amendment. Eng concludes that while existing jurisprudence provides a starting point for resolving these gray areas, "It quickly becomes apparent that this is a gray area of law, without bright lines and clear rules, as well as a constantly evolving one. There is little agreement on what approach should be taken. Court opinions in recent years vary widely...." (Eng 1850).

Conclusion

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