The Constitution of the United States of America: Analysis and Interpretation Part 221

Section 5. Sections 1 and 2 shall take effect on the 15th day of October following the ratification of this article.

Section 6. This article shall be inoperative unless it shall have been ratified as an amendment to the Const.i.tution by the legislatures of three-fourths of the several States within seven years from the date of its submission.

Extension of Presidential Succession

Pursuant to the authority conferred upon it by section 3 of this amendment, Congress shaped the Presidential Succession Act of 1948[1] to meet the situation which would arise from the failure of both President elect and Vice President elect to qualify on or before the time fixed for the beginning of the new Presidential term.

Notes

[1] 62 Stat. 672, 677; 3 U.S.C.A. 19; _See_ p. 388.

AMENDMENT 21

REPEAL OF EIGHTEENTH AMENDMENT

Page Effect of repeal 1231 Scope of the regulatory power conferred upon the States 1231 Discrimination as between domestic and imported products 1231 Regulation of transportation and "through" shipments 1231 Regulation of imports destined for a federal area 1233 Effect on federal regulation 1233

REPEAL OF EIGHTEENTH AMENDMENT

Amendment 21

Section 1. The eighteenth article of amendment to the Const.i.tution of the United States is hereby repealed.

Section 2. 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.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Const.i.tution by conventions in the several States, as provided in the Const.i.tution, within seven years from the date of the submission hereof to the States by the Congress.

Effect of Repeal

The operative effect of section 1, repealing the Eighteenth Amendment, is considered under the latter amendment.

Scope of the Regulatory Power Conferred Upon the States

DISCRIMINATION AS BETWEEN DOMESTIC AND IMPORTED PRODUCTS

In a series of interpretive decisions rendered shortly after ratification of this amendment, the Court established the proposition that States are competent to adopt legislation discriminating against imported intoxicating liquors in favor of those of domestic origin and that such discrimination offends neither the commerce clause of article I nor the equal protection and due process clauses of the Fourteenth Amendment. Thus, in State Board of Equalization _v._ Young's Market Co.[1] a California statute was upheld which exacted a $500 annual license fee for the privilege of importing beer from other States and a $750 fee for the privilege of manufacturing beer; and in Mahoney _v._ Triner Corp.[2] a Minnesota statute was sustained which prohibited a licensed manufacturer or wholesaler from importing any brand of intoxicating liquor containing more than 25% of alcohol by volume and ready for sale without further processing, unless such brand was registered in the United States Patent Office. Also validated in Indianapolis Brewing Co. _v._ Liquor Commission[3] and Finch & Co. _v._ McKittrick[4] were retaliation laws enacted by Michigan and Missouri, respectively, by the terms of which sales in each of these States of beer manufactured in a State already discriminating against beer produced in Michigan or Missouri were rendered unlawful.

Conceding, in State Board of Equalization _v._ Young's Market Co.,[5]

that "prior to the Twenty-first Amendment it would obviously have been unconst.i.tutional to have imposed any fee for * * * the privilege of importation * * * even if the State had exacted an equal fee for the privilege of transporting domestic beer from its place of manufacture to the [seller's] place of business," the Court proclaimed that this amendment "abrogated the right to import free, so far as concerns intoxicating liquors." Inasmuch as the States were viewed as having acquired therefrom an unconditioned authority to prohibit totally the importation of intoxicating beverages, it logically followed that any discriminatory restriction falling short of total exclusion was equally valid, notwithstanding the absence of any connection between such restriction and public health, safety or morals. As to the contention that the unequal treatment of imported beer would contravene the equal protection clause, the Court succinctly observed that a "cla.s.sification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth."[6]

REGULATION OF TRANSPORTATION AND "THROUGH" SHIPMENTS

Lately, however, when pa.s.sing upon the const.i.tutionality of legislation regulating the carriage of liquor interstate, a majority of the Justices have been disposed to by-pa.s.s the Twenty-first Amendment and to resolve the issue exclusively in terms of the commerce clause and State police power. This trend toward devaluation of the Twenty-first Amendment was set in motion by Ziffrin, Inc. _v._ Reeves[7] wherein a Kentucky statute, forbidding the transportation of intoxicating liquors by carriers other than licensed common carriers, was enforced as to an Indiana corporation, engaged in delivering liquor obtained from Kentucky distillers to consignees in Illinois; but licensed only as a contract carrier under the Federal Motor Carriers Act. After acknowledging that "the Twenty-first Amendment sanctions the right of a State to legislate concerning intoxicating liquors brought from without, unfettered by the Commerce Clause,"[8] the Court then proceeded to found its ruling largely upon decisions antedating the amendment which sustained similar State regulations as a legitimate exercise of the police power not unduly burdening interstate commerce. In the light of the cases enumerated in the preceding paragraph, wherein the Twenty-first Amendment was construed as according a plenary power to the States, such extended emphasis on the police power and the commerce clause would seem to have been unnecessary. Thereafter, a total eclipse of the Twenty-first Amendment was recorded in Duckworth _v._ Arkansas[9] and Carter _v._ Virginia[10] wherein, without even considering that amendment, a majority of the Court upheld, as not contravening the commerce clause, statutes regulating the transport through the State of liquor cargoes originating and ending outside the regulating State's boundaries.[11]

REGULATION OF IMPORTS DESTINED FOR A FEDERAL AREA

Intoxicating beverages brought into a State for ultimate delivery at a National Park located therein but over which the United States retained exclusive jurisdiction has been construed as not const.i.tuting "transportation * * * into [a] State for delivery and use therein"

within the meaning of section 2 of this amendment. The importation having had as its objective delivery and use in a federal area over which the State retained no jurisdiction, the increased powers which the latter acquired from the Twenty-first Amendment were declared to be inapplicable. California therefore could not extend the importation license and other regulatory requirements of its Alcoholic Beverage Control Act to a retail liquor dealer doing business in the Park.[12]

Effect on Federal Regulation

The Twenty-first Amendment of itself did not, it was held, bar a prosecution under the federal Sherman Ant.i.trust Law of producers, wholesalers, and retailers charged with conspiring to fix and maintain retail prices of alcoholic beverages in Colorado.[13] In a concurring opinion, supported by Justice Roberts, Justice Frankfurter took the position that if the State of Colorado had in fact "* * * authorized the transactions here complained of, the Sherman Law could not override such exercise of state power. * * * [Since] the Sherman Law, * * *, can have no greater potency than the Commerce Clause itself, it must equally yield to state power drawn from the Twenty-first Amendment."[14] All other efforts to invoke the Twenty-first Amendment as a limitation upon the const.i.tutional powers of the National Government, notably to invalidate the imposition, pursuant to the war power, of federal price controls on retail sales of liquors, have been equally abortive.[15]

Notes

[1] 299 U.S. 59 (1936).

[2] 304 U.S. 401 (1938).

[3] 305 U.S. 391 (1939).

[4] 305 U.S. 395 (1939).

[5] 299 U.S. 59, 62 (1936).

[6] Ibid 63-64. In the three decisions rendered subsequently, the Court merely restated these conclusions. The contention that discriminatory regulation of imported liquors violated the due process clause was summarily rejected in Indianapolis Brewing Co. _v._ Liquor Commission, 305 U.S. 391, 394 (1939).

[7] 308 U.S. 132 (1939).

[8] Ibid. 138.

[9] 314 U.S. 390 (1941).

[10] 321 U.S. 131 (1944). _See also_ Cartlidge _v._ Rainey, 168 F. (2d) 841 (1948); certiorari denied, 335 U.S. 885 (1948).

[11] Arkansas required a permit for the transportation of liquor across its territory, but granted the same upon application and payment of a nominal fee. Virginia required carriers engaged in similar through-shipments to use the most direct route, carry a bill of lading describing that route, and post a $1000 bond conditioned on lawful transportation; and also stipulated that the true consignee be named in the bill of lading and be one having the legal right to receive the shipment at destination.

[12] Collins _v._ Yosemite Park, 304 U.S. 518, 537-538 (1938).

[13] United States _v._ Frankfort Distilleries, Inc., 324 U.S. 293, 297-299 (1945).

[14] Ibid. 301-302.

[15] Jatros _v._ Bowles, 143 F. (2d) 453, 455 (1944); Barnett _v._ Bowles, 151 F. (2d) 77, 79 (1945), certiorari denied, 326 U.S. 766 (1945); Dowling Bros. Distilling Co. _v._ United States, 153 F. (2d) 353, 357 (1946), certiorari denied, (Gould et al. _v._ United States) 328 U.S. 848 (1946); rehearing denied, 329 U.S. 820 (1946).