How to Violate the Constitution without Really Trying: Lessons from the Repeal of Prohibition to the Balanced Budget Amendment
Tribe, Laurence, Constitutional Commentary
Shortly before the proposed Balanced Budget Amendment went down to defeat by a single vote in March 1995,(1) Kansas Senator Nancy Kassebaum explained her reason for dropping her previous opposition to that much-debated but still-undelivered change in the United States Constitution.(2) It wasn't that the Senator had overcome her doubts about the ability of the Balanced Budget Amendment actually to curb the evils of an ever-increasing deficit. No, the reason was more subtle: "It may be like the Prohibition Amendment," she explained. "We may just have to get it out of our system." It was true that "[p]rohibition didn't stop drinking," but then it didn't really wreck, or even permanently mar, the Constitution either.(3) After all, we repealed the Eighteenth Amendment when we ratified the Twenty-first, a little over a decade later.
The Eighteenth Amendment, it should be said, is nearly everybody's prime example of a constitutionally dumb idea. Dean John Hart Ely, for instance, uses it as Exhibit A in his case against constitutionalizing social or economic policies.(4) To my knowledge, however, few people have focused on how silly the Prohibition Repeal Amendment--the Twenty-First--was. Not that the idea it represented was silly. It wasn't. What could be sounder then getting rid of the Prohibition Amendment? The problem wasn't the idea, but its implementation.
Before getting to the punchline--all right, what was so dumb about the way the Twenty-First Amendment went about repealing the Eighteenth?--let me say why the point seems worth pursuing. Lots of ideas make constitutional sense in the abstract. Protecting future generations from our own short-sighted proclivities to heap on a mountain of debt through a sort of taxation without representation--that's actually a pretty good idea.(5) But between the rhetoric and the reality, as they say, falls the shadow. Otherwise put, in constitutional matters, as in others, the devil is in the details. So one must look closely at the details before signing on to the whole package.
Consider, then, the details of the Twenty-First Amendment. Its opening section (Section 1) repealed the Eighteenth Amendment. So far so good. Its closing section (Section 3) set a seven-year time limit on ratification. Again, a fine idea. In fact, the practice of setting such limits in advance actually dated back to the Eighteenth Amendment (before whose advent Congress had neglected to set any time limits at all, leading to such peculiar episodes as the ratification of the Twenty-Seventh Amendment over two centuries after its proposal to the States(6)). But consider Section 2, the inside of this constitutional sandwich. Here's the relevant baloney:
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.(7)
Now there's one for the books! Notice that this language doesn't merely empower the States, notwithstanding the inhibitions of the Dormant Commerce Clause,(8) to bar transporting or importing intoxicants for local delivery or consumption. That was its evident objective.(9) In fact, reading the Supreme Court's decisions purporting to describe the Twenty-First Amendment,(10) one would get the distinct impression that it was rather ordinary--just a constitutional embodiment of the proposition that, provided the States not use their control over beer, wine, and spirits to violate unrelated constitutional provisions, they are free to erect barriers to the influx of alcohol notwithstanding the principles of federalism that would normally tell the States that they must sink or swim together.(11)
Now this wasn't the first time an amendment's text missed its mark.(12) But this miss is a doozy. The text actually forbids the private conduct it identifies, rather than conferring power on the States as such. This has the singular effect of putting the Twenty-First Amendment on a pedestal most observers have always assumed was reserved for the rather more august Thirteenth Amendment, which is typically described as the only exception to the principle that our Constitution's provisions, even when they don't say so expressly,(13) limit only some appropriate level of government. …