The Drinking Age and the Twenty First Amendment

90px-Betsy's_usual_(Dirty_Martini)Concern about the costs of binge drinking are leading many university presidents to ask whether the drinking age should be lowered to 18.  A major obstacle to this idea, though, is that Congress removes 10% of a state’s federal highway funding if the drinking age is below 21. Everyone knows that Congress possesses broad discretion to put strings on federal funds, so presumably a state that wants to change its drinking age has to either accept this 10% penalty or convince Congress to change the law.

Well, maybe not.  The Twenty First Amendment (which repealed Prohibition) provides in Section Two that “The transportation or importation into any State . . . of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”  This is one of the few parts of the Constitution that contains an affirmative statement of state sovereignty.

One way of reading this provision is that it gives states broad latitude to regulate alcoholic use so long as they are not engaged in discrimination against other states (the qualification is necessary given the case law on the Dormant Commerce Clause and the Twenty First Amendment).  If that is the case, then one could say that federal efforts to undermine that power through the spending power should be evaluated more closely than other federalism objections to the Spending Clause.  At a minimum, the original understanding of Section Two in this respect is worth exploring.

This raises an interesting point.  Even self-professed originalists know (and care) very little about the modern amendments.  How much do you know about what the Framers of the Twenty Fifth Amendment were thinking?  (That’s the one about presidential succession).  How about the Twenty Third? (on voting in the District of Columbia).  Most scholars spend their time on 1787, 1791, or 1868.  That’s not a bad thing, but we could use more scholarship on the amendments enacted in the last 100 years.

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10 Responses

  1. Joe says:

    I honestly don’t know what will curb binge drinking on college campuses. I don’t think the age requirement is contributing to it as much as people would say it does. You’re turning a bunch of 18-22 year-olds loose in an area without parental supervision and where parties are plentiful. Binge drinking has become a hallmark of the college experience.

  2. Dan Culley says:

    I don’t think your argument is consistent with South Dakota v. Dole, 483 U.S. 203 (1987), which addressed this exact question. In that case, South Dakota was threatened with a loss of interstate highway funds for allowing under-21s to purchase 3.2% ABV beer. The court assumed without deciding that the 21st Amendment would prevent direct Congressional regulation of the drinking age. Nonetheless, it found that the Amendment was only intended to curb Congress’ enumerated powers and had no effect on Congress’ spending power.

    Even going beyond Dole, I don’t really follow your logic. Certainly, if the state has the power to regulate one way or another, it should have the freedom to enter into an agreement to regulate in a certain way. I’d certainly favor a narrower interpretation of what spending is for the “general welfare,” but I don’t really understand the objection to the principle that Congress can bargain for what it cannot force.

    I agree that a simple change in the drinking age, without any further action by universities, would have very little impact. However, the current drinking age prevents universities from hosting events that serve alcohol to under-21s in a more controlled manor. It also forces universities into a choice where calling the police to deal with disorderly conduct will result in the arrest of students who are drinking but not being disorderly. Perhaps some departments don’t take this self-defeating attitude towards enforcement, but I know from experience (seeing arrests, not being arrested) that DC Metro is not one of them. In any event, the rationale for maintaining the drinking age at 21, to prevent drunk driving, has very little force on most college campuses, where hardly anyone is driving.

  3. Gerard Magliocca says:

    Hi Dan,

    Sorry, I should have added a discussion of Dole. My point, though looking at the post I can see it’s not clear, was that the Court did not conduct a thorough examination of the Twenty-First Amendment in that opinion (or really, in any of its cases). So perhaps the conclusion in Dole is correct (the Twenty-First does not change the Spending Clause analysis), but how is one to know?

  4. Dan Culley says:

    Gerard, thanks for your response. I take your point: It did not really make sense to brush over the question in Dole in a sentence, particularly given the amount of briefing the parties gave on the matter.

    On the other hand, I think the court’s early interpretation of the 21st Amendment as giving states absolute power to regulate alcohol strains the plain meaning of the text, which is drafted quite narrowly. Nothing in the spending package forces the import of alcohol into a state in violation of its laws. In fact, to the extent it forces the state to do anything, it kind of does the opposite.

    Given this, I think that Dole may be more of an example of the Court being unwilling to directly overrule incorrect earlier cases than it is of intellectual sloppiness. (Although I suppose not being willing to do so is itself intellectual sloppiness.)

  5. Aaron Nielson says:

    An interesting thing about the 21st Amendment is the original Section Three, which said: “Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.” This was rejected by the Senate as a backdoor to renewed prohibition. During the ratification debate, Senator Wagner said: “If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold,” and the “liquor question [would thus] continue to bedevil national politics.”

    Congress, by means of its spending power, seems to be doing indirectly what Section Three would have allowed it to do directly.

  6. A.W. says:

    that interpretation is wacked. Clearly section two is saying nothing more than the fact that each state is free to make its own laws banning alcohol and it is against the constitution to bring or possess alcohol in violation of those state laws. that is not the same as saying that a state has a right to a lower drinking age without penalty. it has nothing to do with it.

    But i am sure William Douglas could find a whole novel in its prenumbra. sigh.

  7. C.L. says:

    I found when traveling to Europe as a teen and in college that European teenagers drink heavily on a regular basis. In Bavaria and London, where the drinking age is low, kids start drinking heavily once they leave their parent’s house. In Bavaria, a group of students drank as much every night of the week as students in the U.S. drink when they binge drink.
    I don’t think legality of drinking is as large of a factor as the age at which people live on their own.
    For some people, the illegality of drinking prevents them from drinking. I only drank outside of the U.S. when I was underage. I think this helped me skip out on the drinking habit that so many Europeans and Frat boys (who police don’t enforce the law against) keep into old age.

  8. thomas crocker says:

    you guys are dum!!!! all i do is drink me some beers and it anit stopin, and im 8!!!!!

  9. David says:

    Interesting points on the constitutionality of this topic, however despite the possible unconstitutional nature of the Spending Clause, I think the more relevant topic concerning this issue is can the states make more money from the taxation of beer and liquor to adults age 18-21 than the 10% of their Federal highway funding? It may be “immoral” of me to say this, but given current collegiate trends of binge drinking would it be possible to cash in on this trend through lowering of the drinking age and in doing so both increase state budgets and decrease expenditures due to law enforcement needing to enforce said laws.

  10. Justyce says:

    People in this generation dont stop and think about the consequences of their actions. The legal drinking age right now is 21. People at that age dont think about consequences they just want to party and live it up. Which is fine if you do it the right way. But think. If 21 year olds arent as responsible as they should be now, what makes you think that 18 yr olds are going to be any more responsible. If anything the legal drinking age should be increased.