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June 29, 2021
By: Richard Lee Stavins

Alcohol for drinking is widely available across America. However, there are a few states, counties, cities and precincts where the sale of alcohol is either totally illegal (no alcohol of any kind intended for human consumption may be sold) or partly illegal (usually beer and wine may be sold, but not hard liquor). Can this harsh regulation of this one industry be legal? Yes, it is.

If a product being banned like that were something other than alcohol, the courts would surely say that such state and local laws place an intolerable burden on interstate commerce and therefore are unconstitutional and hence illegal. Although the city council of Detroit, for example, would dearly love to ban the ownership, sale or possession of foreign cars within its city limits, any attempt to do so would immediately be declared unconstitutional.  The federal government — on which the Constitution bestows the power to regulate interstate commerce — could enact such a law, but no city or state could.

Alcohol seems to be different. In thousands of counties, cities and local precincts across the country, the sale of drinking alcohol is partly or totally banned. Why the difference?

The answer lies in the historic anachronism of the 21st Amendment to the Constitution. In 1919 the infamous 18th Amendment became part of the Constitution, totally prohibiting the manufacture, sale and importation of alcohol. The result was years of criminal bootlegging of alcohol and the rise of organized crime. Finally, in 1934, the 21st amendment was added to the Constitution. The 21st amendment has two parts. The first part repealed the 18th Amendment. Everyone remembers that.

Often forgotten is the second part. It gave state and local governments complete power to regulate the alcohol industry within their respective borders, in any way they choose.

This second part of the 21st Amendment was the result of a political compromise in 1934 by the “wets” to overcome the power of the “dries” who were threatening to block ratification if it were not included. Over the years, the courts have held that this second provision of the 21st Amendment trumps the federal government’s exclusive power to regulate interstate commerce, if the product being regulated is alcohol.

In fact, this second provision of the 21st amendment has even been held to trump the 1st Amendment’s right of free speech, one of our most sacred constitutional rights. As a result, although many courts have held that nude dancing is a form of expression and therefore is a form of free speech and is therefore protected by the 1st Amendment and therefore may not be banned by state or local governments, if the nude bar sells alcohol the 1st Amendment does not apply. The 21st Amendment trumps the 1st Amendment and the state or local government may ban nude dancing at the bar.

Does this mean that state and local governments are free to do essentially whatever they want to the alcohol industry, with absolute impunity?  Legally yes, but practically no. Because of the disastrous experience with prohibition in the 1920s before the 18th was repealed, most state and local governments have always been reluctant to ban alcohol outright, for fear they will just create another criminal alcohol industry.