The Drinking Age and the Twenty First Amendment
posted by Gerard Magliocca
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 The Twenty First Amendment (which repealed Prohibition) provides in Section Two that “The transportation or importation into any State .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.