What is the 21st Amendment?

The 21st Amendment reads in full: 'Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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 Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.' Congress proposed the amendment on February 20, 1933. Ratification was completed on December 5, 1933, when Utah became the thirty-sixth state to ratify -- the required three-fourths of the then-48 states. The speed was striking: from congressional proposal to ratification in less than ten months. Michigan was the first state to ratify, on April 10, 1933. Two states -- Rhode Island and South Carolina -- rejected the amendment.

The method of ratification is the 21st Amendment's most structurally distinctive feature. Article V of the Constitution permits Congress to choose between two ratification mechanisms: approval by three-fourths of state legislatures, or approval by conventions in three-fourths of the states. The convention method had been available since 1789 but had never been used for a ratified amendment. Congress selected conventions for the 21st Amendment. Scholarly accounts identify two reasons. First, state conventions could be elected specifically on the single question of Prohibition repeal, giving the amendment a democratic mandate and bypassing the regular legislative calendar. Second, rural-dominated state legislatures had been the institutional base of the temperance movement and were disproportionately sympathetic to Prohibition; popularly elected state conventions, it was believed, would more accurately reflect the public sentiment -- documented in the 1932 Democratic and Republican platforms -- that favored repeal. The convention method has never been used for any other ratified amendment; proposals to use it for the proposed Equal Rights Amendment and other amendments have been advanced but not adopted.

Section 2 of the 21st Amendment is the operative provision for modern constitutional litigation. It prohibits the transportation or importation of intoxicating liquors into any state 'in violation of the laws thereof.' Courts initially read Section 2 broadly as an independent grant of authority that displaced the normal dormant Commerce Clause analysis for alcohol regulations. By the late twentieth century, however, the Supreme Court substantially narrowed that reading. In Craig v. Boren, 429 U.S. 190 (1976), the Court held that Oklahoma's 3.2-percent beer law -- which prohibited males aged 18-20 but not females aged 18-20 from purchasing the beverage -- violated the Equal Protection Clause of the 14th Amendment. The Court rejected Oklahoma's argument that Section 2 of the 21st Amendment overrode the constitutional requirement of equal protection; the 21st Amendment does not exempt state alcohol regulations from the requirements of other constitutional provisions. In 44 Liquormart, Inc. v. Rhode Island, 517 U.S. 484 (1996), the Court unanimously struck Rhode Island's ban on retail price advertising for alcoholic beverages. All nine justices agreed that the First Amendment's commercial speech protections applied; the 21st Amendment does not create an exception to the First Amendment for alcohol-related speech regulations.

The most significant modern 21st Amendment Commerce Clause decisions addressed state laws that discriminated between in-state and out-of-state alcohol producers. In Granholm v. Heald, 544 U.S. 460 (2005), a 5-4 decision authored by Justice Kennedy, the Court held that Michigan and New York laws permitting in-state wineries to ship wine directly to consumers but prohibiting out-of-state wineries from doing the same violated the dormant Commerce Clause. Section 2 of the 21st Amendment, the majority held, does not override the general principle that states may not discriminate against out-of-state commerce; the Amendment permits states to regulate alcohol evenhandedly but not to use alcohol regulation as a tool for economic protectionism. Justice Thomas dissented, joined by Chief Justice Rehnquist and Justices Stevens and O'Connor, arguing that the 21st Amendment's text and history support broader state authority. In Tennessee Wine & Spirits Retailers Ass'n v. Thomas, 588 U.S. 504 (2019), 7-2, Justice Alito applied Granholm to invalidate Tennessee's requirement that retail liquor license applicants reside in the state for at least two years before applying. The 21st Amendment did not save the residency requirement because the law discriminated against out-of-state applicants without advancing a legitimate local interest; Tennessee's interest in regulating alcohol responsibly could be served by evenhanded measures.

For the 2028 presidential election, the 21st Amendment is most relevant in three ways. First, the federal debate over marijuana policy mirrors, in important respects, the Prohibition and repeal experience: national prohibition enacted through federal law (the Controlled Substances Act's Schedule I classification), followed by state-by-state legalization and pressure for federal reform. The mechanics are different -- marijuana prohibition rests on the Commerce Clause rather than a constitutional amendment -- so federal marijuana rescheduling or descheduling does not require a constitutional amendment. But the political and structural parallels to the 18th Amendment's repeal are frequently invoked in policy debates, and 2028 candidates across both parties have articulated positions on federal marijuana law. Second, the 21st Amendment is the only historical example of the Article V amendment process being used to repeal an earlier amendment. Constitutional debates about repealing the 22nd Amendment (presidential term limits) or other provisions regularly cite the 18th-21st pair as the precedent establishing that amendments can be reversed. Third, the convention-ratification method used for the 21st Amendment remains available under Article V for future amendments; its use for any future constitutional change would require Congress to choose it over the standard legislative-ratification path, and the 21st Amendment's experience -- rapid, democratically engaged ratification through purpose-specific conventions -- is the only model for what that process looks like in practice.