Every month of the year is significant for a variety of reasons: holidays, historical events, birthdays, anniversaries, etc. However, when it comes to the U.S. Constitution, two months of the year stand out. December is a significant month when it comes to two amendments to the Constitution. The Eighteenth Amendment was proposed by Congress on December 18, 1917, and the Twenty-First Amendment, which repealed the Eighteenth Amendment, was ratified and took effect on December 5, 1933. This is the only time that an amendment (eighteenth) was ever repealed and the only time that an amendment (twenty-first) was ratified by state ratifying conventions instead of state legislatures. January is also a significant month when it comes to constitutional amendments. The Eighteenth Amendment was ratified on January 16, 1919, and took effect on January 17, 1920, a year after ratification.
The Eighteenth Amendment
The Constitution was ratified in 1789. The amendment process is described in the first part of Article V:
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress;
Although thousands of bills have been introduced in Congress to amend the Constitution, only 33 proposed amendments have been passed by Congress and sent to the states for ratification. Of these 33, only 27 have been ratified. Of the remaining six amendments, only two have technically failed since they had time limits for their ratification.
Congress has had the power from the very beginning of the Constitution to tax Americans. The opening statement in the Constitution under the powers of Congress in Article I, Section 8, reads:
The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States.
This was made worse by the passage of the Sixteenth Amendment in 1913 that gave Congress unlimited power to directly tax incomes: “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration.” Nothing in the Constitution, though, specifies any tax rate or amount that has to be collected. That is all up to Congress, which is why it is the Eighteenth Amendment that is the worst constitutional amendment, not the Sixteenth.
Most constitutional amendments relate to the protection of personal rights and individual liberty and limit the power of the federal government — like the first 10 amendments, collectively called the Bill of Rights. A few amendments changed the way that the government operates. But the Eighteenth Amendment is entirely different because it was a direct assault by the federal government on individual liberty, private property, and economic freedom.
The Eighteenth Amendment instituted Prohibition:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
The Eighteenth Amendment didn’t ban the consumption or possession of alcohol, just its “manufacture, sale, or transportation.” Nevertheless, it effectively curtailed the legal use of alcoholic beverages in the United States.
The “appropriate legislation” passed by Congress to institute Prohibition was the National Prohibition Act, also known as the Volstead Act, after its sponsor, Andrew Volstead (1860–1947), the chairman of the House Judiciary Committee from 1919 to 1923. The Volstead Act was finally passed on October 28, 1919, after Congress overrode the veto by President Woodrow Wilson the day before. It stated that “no person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act.” It defined “intoxicating liquor” as any beverage containing more than 0.5 percent alcohol by volume, granted exceptions and exemptions for medical and religious purposes, and provided penalties for the law’s violation. It also basically criminalized the possession of alcoholic beverages because anyone caught with alcohol was presumed to be in violation of the law:
After February 1, 1920, the possession of liquors by any person not legally permitted under this title to possess liquor shall be prima facie evidence that such liquor is kept for the purpose of being sold, bartered, exchanged, given away, furnished, or otherwise disposed of in violation of the Provisions of this title.
It was up to the possessor of alcohol to prove that it “was lawfully acquired, possessed, and used.”
The problem with Prohibition was not just that it didn’t work; created black markets; closed distilleries, breweries, bars, and liquor stores and eliminated jobs in a large industry; corrupted politicians; enabled organized crime to flourish; resulted in a huge loss of government tax revenue; and made criminals out of otherwise law-abiding Americans. The real problem with Prohibition was its government assault on individual liberty, private property, and economic freedom and subsequent expansion of government power.
The Twenty-First Amendment
The Twenty-First Amendment repealed the Eighteenth Amendment. Because it ended the federal government’s assault on individual liberty, private property, and economic freedom, it has to rank as one of the most important constitutional amendments. It was proposed on February 20, 1933, and ratified 288 days later on December 5, 1933. Only the Twenty-Third Amendment, which allows Washington, D.C., to have three presidential electors, and the Twenty-Sixth Amendment, which lowered the voting age to 18, were ratified in less time. Just a month later, Congress enacted the Cullen-Harrison Act. It redefined “intoxicating beverage” as one with 3.2 percent alcohol by weight (4.0 ABV), giving rise to 3.2 beer (modern beer is about 5% ABV). The act took effect on April 7, now known as National Beer Day. It is commonly thought that the repeal of the Prohibition amendment legalized the manufacture, sale, and transportation of alcohol throughout the country, but this is not the case. Section 2 of the Twenty-First Amendment reads: “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 repeal of Prohibition only took immediate effect in 18 states because of state alcohol-prohibition laws.
The repeal of the Eighteenth Amendment did not end the state governments’ assault on individual liberty, private property, and economic freedom that predated national Prohibition. Many states or parts of states went “dry” and forbade the sale of alcoholic beverages before the advent of Prohibition. In Last Call: The Rise and Fall of Prohibition (2010), Daniel Okrent notes that the Twenty-First Amendment “made it harder, not easier, to get a drink” because of regulations on closing hours, age limits, and Sunday sales that were implemented by the states.
Alcohol is one of the most heavily regulated substances throughout the country. In about half of the states, there remain to this day dry counties, cities, or towns. Topping the list is Arkansas, with 29 dry counties out of 75. Kansas and Tennessee are dry by default — counties in these states must specifically authorize alcohol sales. Over 30 states permit county or local jurisdictions to elect to go dry via a public referendum. But even in certain states and counties that permit alcohol sales, no alcoholic beverages of any kind can be sold before a certain time on Sunday, no alcohol can be sold for off-premise consumption, only beer and wine can be sold for off-premise consumption, distilled spirits can only be purchased at a liquor store, no happy hours are allowed, bars have to close at a certain time on weekends and earlier on weekdays, and grocery stores can sell distilled spirits only in a separate store or in an attached location that has its own entrance. And of course, no business in any state can sell alcohol with getting a liquor license. Seventeen states are “Alcoholic Beverage Control” states where the state government has control over the wholesaling or retailing of some or all types of alcoholic beverages. In some states, the government even owns and operates all of the liquor stores and outlaws private liquor stores.
But even though Prohibition ended almost a hundred years ago, the federal government still restricts alcohol in several ways. It imposes an excise tax on beer, wine, hard cider, and distilled spirits. The unauthorized production of distilled spirits by individuals is a federal crime, and although one may produce beer and wine at home, only an amount up to 100 gallons per calendar year (200 gallons if two or more adults reside in the home) is allowed without having to pay federal excise tax on it, and none of it can ever be sold.
The war on drugs
The Eighteenth Amendment is significant for another reason as well: the war on drugs. Like Prohibition, the war on drugs is also an assault on individual liberty, private property, and economic freedom. However, in two respects, the war on drugs is even worse than Prohibition.
First of all, it should be remembered that the Volstead Act stated that “no person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act.” It did not directly criminalize the possession or use of alcoholic beverages. The war on drugs, on the other hand, does directly criminalize the possession and use of drugs. Even the least potent drug, marijuana — the drug that has been legalized for medical use in 38 states and for recreational use in 24 states — is classified by the federal government as a Schedule I controlled substance under the Controlled Substances Act (CSA) with “a high potential for abuse,” “no currently accepted medical use,” and “a lack of accepted safety for use of the drug under medical supervision.” Under federal law, the possession of even a small amount of marijuana can result in fines and imprisonment. And the Supreme Court, in the case of Gonzales v. Raich (2005), has ruled that the federal government has the authority to prohibit marijuana possession and use for any and all purposes. Depending on the quantity and type of the controlled substance, when certain quantity thresholds are met, a five-year mandatory minimum penalty with a maximum term of 40 years applies. Convicted murderers often serve less than 40 years.
And second, although Prohibition was a bad thing in every respect as far as individual liberty, private property, and economic freedom are concerned, there is one thing that could at least be said about it: It was constitutional. Before the passage of the Eighteenth Amendment, the Constitution not only didn’t authorize the federal government to prohibit, control, or regulate the manufacture, sale, or transportation of intoxicating liquors, it didn’t even mention alcohol. The Volstead Act could not be passed by Congress until after the adoption of the Eighteenth Amendment. When the Progressives who looked with favor on the temperance movement wanted to enlist the federal government to help them curtail Americans’ use of alcohol, they realized that an amendment to the Constitution was needed. Prior to this, it was the states that prohibited, controlled, and regulated the manufacture, sale, and use of alcoholic beverages. This is because, as our fourth president James Madison explained about our federal system of government in Federalist No. 45, “The powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.”
The federal government’s war on drugs is a tremendous and horrendous violation of the Constitution. Not only does the Constitution not authorize the federal government to prohibit, control, or regulate the manufacture, sale, purchase, use, or transportation of drugs of any kind, it does not even mention drugs. In order for the federal government to be able to wage a war on drugs, a constitutional amendment to that effect is required. This means that conservative drug warriors who profess their admiration and allegiance to the Constitution are, in fact, among the Constitution’s greatest enemies. What is it about drugs that turns constitutionalist, limited-government, free-market conservatives into puritanical, nanny-state, incorrigible drug warriors? Why were conservatives so adamant about reversing Roe v. Wade and returning the abortion issue to the states but remain so opposed to removing marijuana from the federal drug schedule and letting each state decide its own marijuana policy?
Conclusion
In addition to not authorizing the federal government to have anything to do with alcohol or drugs, the Constitution nowhere authorizes the federal government to regulate, monitor, or restrict the consumption, medical, or recreational habits of Americans. It nowhere authorizes the federal government to concern itself with the nature and quantity of any substance Americans inhale, swallow, snort, inject, or otherwise ingest. It nowhere authorizes the federal government to intrude itself into the personal eating, drinking, or smoking habits of Americans. It nowhere authorizes the federal government to interfere with commerce between a willing buyer and a willing seller. It nowhere authorizes the federal government to restrict what Americans can grow or manufacture. It nowhere authorizes the federal government to prevent people from harming themselves with any substance, whether it be beer, wine, whiskey, marijuana, cocaine, fentanyl, raw milk, high fructose corn syrup, menthol-flavored cigarettes, vaping, bath salts, haggis, or energy drinks.
If a man owns his own body, then it follows that he should be able to consume any substance he chooses in whatever quantity he chooses no matter how addictive, dangerous, or risky it is —even if he harms his health, squanders his wealth, and alters his mind. Every American should have the freedom to consume any substance in any manner without fear of government arrest, fines, and imprisonment.
Alcohol and drugs should be treated like any other commodity. There should be no restrictions on their use, buying, selling, advertising, trafficking, packaging, or manufacturing. In a free society, it can’t be any other way. Just like the Eighteenth Amendment was repealed, so all laws concerning alcohol and drugs can and should be repealed.
This article was originally published in the January 2025 issue of Future of Freedom.
