No law, varying the compensation for the services of the Senators and Representatives, shall take effect, until an election of representatives shall have intervened.
Amendment XXVII

On June 8, 1789, James Madison proposed the Congressional Compensation Amendment as one of many that he presented to the House of Representatives that day. After debate, the House of Representatives and the Senate approved the proposed amendment and forwarded it and eleven others to the states. Only six states ratified it, however, and thus it did not become part of the Bill of Rights. The proposed amendment languished for almost two hundred years before becoming the object of a successful ratification campaign in the 1980s, ultimately resulting in its formal acceptance by Congress as the Twenty-seventh Amendment on May 20, 1992.

At the Constitutional Convention, the Framers heatedly debated the question of whether individual states or the new national government would compensate elected representatives. The Compensation Clause of Article I, Section 6, was the result, providing that the central government would pay the representatives from the federal treasury as established by federal law.

The Anti-Federalists and others at state ratifying conventions found this compensation arrangement deeply worrisome; because the Members of Congress enacted the very law that set their salary, there was no check on Congress’s ability to enrich itself. It was a classic case of the danger of self-dealing corruption. Madison responded to that criticism with the proposed Compensation Amendment, which would prevent representatives from granting themselves a pay raise that would take effect during the term in which they sat. Instead, Congress would only be able to pass the pay raise prospectively and would thereby face the electorate before it could take effect. Madison believed the amendment was necessary because of the “seeming impropriety in leaving any set of men without controul to put their hand into the public coffers, to take out money to put in their pockets.”

The issue of congressional compensation was the subject of periodic legislation and attendant political maneuvering in succeeding years. Particularly unpopular with the electorate was the notorious “Salary Grab” Act of 1873, which not only granted a pay raise to legislators but also made it retroactive. One of the Ohio General Assembly’s responses to the act was ratification of the dormant Compensation Amendment, thus becoming the seventh state to do so, eighty-four years after Maryland, which was the first state to ratify.

Over a century later, the amendment became the object of a grassroots ratification campaign initiated by a college undergraduate who had authored a term paper on the subject in 1982. Despite widespread doubt about the propriety of actually adopting the long-dormant amendment should it ever be fully ratified, the ratification campaign gathered momentum. On May 7, 1992, Michigan became the thirty-eighth state to ratify the Compensation Amendment, completing the process initiated over two hundred years earlier by the First Congress in 1789.

The unique history of the Compensation Amendment raised initial questions about the validity of its ratification. In Coleman v. Miller (1939), the Supreme Court declared that disputes about ratification procedures and the time within which an amendment could be ratified were political questions assigned to the province of the legislative branch under Article V of the Constitution and, therefore, not subject to adjudication by the federal courts. Coleman seemed to envision some sort of formal congressional review of the constitutional validity of a fully ratified amendment prior to its official addition to the Constitution. Despite initial comments about formal review by rather stunned federal legislators following Michigan’s ratifying vote on May 7, 1992, Congress, sensing the public mood, scheduled no formal hearings on the Compensation Amendment. On May 18, 1992, the National Archivist certified the amendment. Two days later, overwhelming majorities in both chambers of Congress confirmed the Twenty-seventh Amendment.

The first, and thus far, only, case to explore the scope of the amendment’s compensation limitation was Schaffer v. Clinton (2001) where four plaintiffs challenged the now-traditional annual cost-of-living pay increases to legislators. The district court interpreted Flast v. Cohen (1968) to limit general taxpayer standing to challenges under the Establishment Clause only (and thereby refusing to treat the Twenty-seventh Amendment as a comparable explicit restriction on spending). The court denied standing to three of the plaintiffs, who came to the court as taxpayers. However, the district court reached the merits for the remaining plaintiff, Congressman Bob Schaffer, whose salary was increased under the statute (to the detriment, he asserted, of his antitax reputation). The court held that periodic cost-of-living pay increases were not discretionary acts of Congress and were therefore not independent laws that varied compensation in violation of the amendment. It is true that cost-of-living increases, though “automatic” under congressional legislation, may, like any other governmental expenditure, only take effect upon enactment of an appropriation statute, but the court did not find that procedure to be dispositive.

On appeal, the Tenth Circuit declined to reach the merits, finding instead that Congressman Schaffer also lacked standing, noting that “the standing inquiry must be ‘especially rigorous'” when the dispute involves two branches of government. The circuit court held that the Congressman “was not injured for standing purposes simply because he received a higher salary.” If followed by later courts—the Supreme Court denied the petition for a writ of certiorari in the case—the Tenth Circuit’s reasoning would appear to foreclose standing to any plaintiff challenging a statute under the Twenty-seventh Amendment. Ironically, after lying dormant for two hundred years, this amendment may now have been put back to sleep. Nevertheless, it is clear that Congress still has the option of voluntarily abiding by the amendment.

With this page we come to the end of our study of the Constitution and it’s amendments. If we have learned anything, it is that the “Supreme Law of the Land” is most notable in its’ lack of application by those in government who pledge to “Preserve, Protect and Defend” it.

The Congress no longer passes most federal laws, rules, and regulations.

Instead, about 99 percent of the rules we must live by decrees from an army of unelected federal bureaucrats.

Using a classic duck-and-dodge strategy, Congress routinely passes legislation that pretends to solve a genuine problem, but then delegates to the executive-branch bureaucrats the power to make the legally binding rules. These rules determine the law’s real-world impact.

It’s a brilliant plan; Congress gets all the credit for the popular feel-good laws and none of the blame for a regulation’s controversial—and expensive—implementation.

Too many members of Congress either don’t understand the Constitution they’ve sworn to defend because they make little or no effort to do so.

Many Supreme Court, (and lower court), justices aren’t any better. Many of them understand our founding document but refuse to acknowledge that its most important function is to limit and check power.

Presidents are often even worse; they pay lip service to our nation’s governing document, but their actions frequently betray a lack of real commitment to its restrictions.

The Constitution must be defended  by the citizens who elect officeholders. Only the voters can force our government officials to obey their oaths to preserve, protect, and defend the Constitution. We must make every effort to persuade friends and neighbors that constitutionally limited government not only matters but is essential to our prosperity as a nation. 

We must  remind elected representatives in Washington that the power to make laws belongs to Congress, not unaccountable bureaucrats, and that those laws should be clear and understandable to the average citizen.

This was implicit in Benjamin Franklin’s response to the question; “Well doctor, what have we got? A republic or a monarchy?”

“A Republic, madam, if you can keep it.”

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXVI

The Vietnam War provoked many draft-age youngsters and like-minded adults to proclaim, “If eighteen-to-twenty-year-olds are old enough to die for their country, they’re old enough to vote.” That slogan is commonly cited as the impetus for the Twenty-sixth Amendment.

The truth is somewhat less colorful. The amendment was crafted primarily to overturn the holding of a fractured Supreme Court in Oregon v. Mitchell (1970). That case had invalidated an attempt by Congress to regulate voting age in state and local elections. Essentially, the Twenty-sixth Amendment did what Congress could not do.

Earlier in 1970, Congress had amended the Voting Rights Act of 1965, lowering the minimum voting age to eighteen in all federal, state, and local elections. When the revised law was challenged, primarily on federalism grounds, Justice Hugo L. Black wrote an opinion reflecting the position of two separate five-Justice majorities. One contingent agreed with Black that Congress could establish a minimum voting age for federal elections, but found contrary to Black that Congress could also exercise that power over state and local elections. A different four Justices joined Black in restricting Congress’s power over state and local elections, but would have restricted its power over federal elections as well. Thus, Black’s opinion became the Court’s holding: Congress had the authority to extend the vote to eighteen-year-olds in federal elections but not in state or local contests.

After Oregon v. Mitchell, states unwilling to set their minimum voting age at eighteen would have been required to maintain separate voting systems for federal and nonfederal elections. To avoid that complication and expense, the states opted for national uniformity and ratified the Twenty-sixth Amendment in record time—a mere 107 days after it was proposed by Congress.

Almost immediately, the courts had to resolve issues peripheral to the new amendment. For example, did the right to vote for a candidate include eligibility to sign and vote for initiative petitions? In Colorado Project-Common Cause v. Anderson (1972), a state court found that enactment of the Twenty-sixth Amendment entailed participation by young voters in the entire political process—initiatives included.

Could states restrict voting by minors by denying them residency at schools or other places away from their parents? In Jolicoeur v. Mihaly (1971), the California Supreme Court found that denying minors voting residence where they actually lived—whether at school or elsewhere—constituted a violation of the Twenty-sixth Amendment; the amendment was held to have emancipated minors for all purposes related to voting. In the same vein, a New Jersey court added that the Twenty-sixth Amendment secured the rights of bona fide campus residents to register in the counties where their campuses were located. Worden v. Mercer County Board of Elections (1972).

On the other hand, a state constitution could, without offending the Twenty-sixth Amendment, institute twenty-one as the minimum age for holding elective public office. Opatz v. City of St. Cloud (1972). And the amendment does not mandate that persons under twenty-one years old be seated as jurors under state law. Johnson v. State (1972); Commonwealth v. Cobbs (1973); State ex rel. McNary v. Stussie (1974).

There is a serious movement afoot to lower the voting age to sixteen. On it’s face, it is ludicrous, but if it gains traction it will be dangerous to our republic.

There is a reason why society withholds the full benefits of citizenship from minors. They are CHILDREN and are therefore immature and liable to hold foolish and morally questionable opinions based on ignorance. Children have poor judgement, lack the wisdom and knowledge necessary to properly understand the subject or understand why their opinions could be wrong and immoral.

The scientific evidence is also stacked against the votes for kids brigade. It has been established that our brains are still underdeveloped in our teen years, which explains a lot about their tendencies for reckless and irresponsible behavior, risk taking and lack of judgement. The brain’s pre-fontal cortex helps us manage our emotions, consider moral dilemmas and think abstractly, and this is not fully developed in teenagers.

The most nauseating advocates of this madness are “progressive” politicians who talk insincere garbage about “extending our democracy”, reinvigorating politics, giving 16 year-olds’ a “stake in society” and other such pathetic and transparent nonsense.

This is cynical politics of the most irresponsible kind; they support votes for children because they believe it will expand their vote share. As young people are idealistic they are more likely to be left wing, so their thinking goes, and therefore more likely to vote for them. Not only is this exasperatingly unprincipled and opportunistic, it is downright presumptuous and patronizing.

If politicians really wanted to improve the electoral system they should be advocating informed and educated voting, not pushing to give children with little or no real life experience the right to go to the ballot box.

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(c) 2018

Section 1. The right of citizens of the United States to vote in any primary or other election for President or Vice President, for electors for President or Vice President, or for Senator or Representative in Congress, shall not be denied or abridged by the United States or any State by reason of failure to pay poll tax or other tax.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIV

Southern states enacted poll taxes of one or two dollars per year between 1889 and 1966 as a prerequisite to voting. A citizen paid the tax when registering and then annually thereafter; some laws required payment up to nine months before an election. Furthermore, many states had a cumulative feature that required an individual to pay all previous years’ poll taxes before he could vote in the instant year.

Prior to the enactment of poll taxes, property ownership was frequently a prerequisite to voting. States instituted the poll tax early in the nineteenth century as a device to grant voting rights to individuals who did not own real property. Although most states had dispensed with both property qualifications and the poll tax by the time of the Civil War, the tax resurfaced in the South to dilute the effect of race-neutral voting provisions required in Southern states’ constitutions as a condition for readmission to the Union following the Civil War.

Beginning in 1889, Southern states reintroduced the poll tax as a method of disenfranchising black voters. As delegate Carter Glass declared during the Virginia constitutional convention of 1902, the tax was designed “with a view to the elimination of every negro voter who can be gotten rid of, legally, without materially impairing the numerical strength of the white electorate.” Additionally, poll taxes had the effect of disenfranchising the poor in general, including whites; later, it fell upon many women after the passage of the Nineteenth Amendment.

Legislation to eliminate poll taxes in federal elections was introduced in every Congress beginning in 1939, but no bill made it into law. By the time of the Twenty-fourth Amendment’s ratification in 1964, only five states retained a poll tax. Nevertheless, Congress deemed the amendment necessary inasmuch as poll taxes had previously survived constitutional challenges in the courts, see Breedlove v. Suttles (1937), and they had become a notorious symbol of black disenfranchisement.

During the debates, some Members of Congress argued that because poll taxes were racially discriminatory, Congress should outlaw them directly under the enforcement powers of the Fourteenth and Fifteenth Amendments. However, Congress eventually decided against using its Fifteenth Amendment enforcement power because it did not directly reach the disenfranchisement of the poor. Early drafts of the Fifteenth Amendment had, in fact, sought to proscribe devices like poll taxes. Ultimately, however, the Fifteenth Amendment’s drafters had settled on language forbidding only racial discrimination in the enjoyment of the franchise. A specific poll tax amendment would be both more sweeping and have greater symbolic status. In addition, the amendment’s supporters attacked the poll tax as a vehicle for fraud because the tax facilitated political corruption through vote buying by political machines that had made block payments of the tax. Some states allowed third parties to pay an individual’s poll tax, so some businesses interested in the repeal of the Eighteenth Amendment were able to pay the poll tax for their patrons. Similarly, unions, frustrated with the resistance to unionization in the South, encouraged registration of their members in some cases by paying their poll taxes. Defenders of states’ rights, however, fended off any attempt to extend the amendment’s application to local elections. Nonetheless, not long after the ratification of the amendment, Congress enacted the Voting Rights Act of 1965, which made problematic the continuing validity of the poll tax as a qualification in state elections.

In Harman v. Forssenius (1965), the Supreme Court for the first time construed the Twenty-fourth Amendment, giving broad effect to its prohibition. In anticipation of the amendment’s adoption, Virginia had enacted a statute amending its election laws to provide that a qualified citizen might vote in federal elections only if, at least six months prior to each election, he had either paid a poll tax or filed a certificate of residence. In declaring the new Virginia voting law unconstitutional, the Court stressed the broad language of the Twenty-fourth Amendment, which prohibits not only the denial but also the abridgement of the right to vote. The Court noted that the Twenty-fourth Amendment, like the Fifteenth, “nullifies sophisticated as well as simple-minded modes of impairing the right guaranteed.” Continuing, the Court also found that the Twenty-fourth Amendment applies to “onerous procedural requirements” which effectively handicap, impede, or impair the “exercise of the freedom by those claiming the constitutional immunity.”

The drafters of the amendment carefully limited its scope to federal elections. Two years after its ratification, the Supreme Court announced that the use of poll taxes as a prerequisite to voting in state elections violated the Equal Protection Clause of the Fourteenth Amendment, even though it seemed evident that the conclusion was at odds with the original understanding of the framers of the Fourteenth Amendment, a position emphasized in the dissents of Justices Hugo L. Black and John M. Harlan. Harper v. Virginia State Board of Elections (1966). In Harper, the Court dealt with a Virginia statute requiring the payment of a poll tax not to exceed $1.50 as a precondition for voting, an amount that Virginia argued was minimal and thus not a significant burden on the right to vote. Admitting “the right to vote in state elections is nowhere expressly mentioned,” the Court nevertheless invalidated the statute because “it is enough to say that once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.” Justice William O. Douglas, writing for the Court, explained: “[A] state violates the Equal Protection Clause… whenever it makes the affluence of the voter or payments of any fee an electoral standard. Voter qualifications have no relation to wealth nor to paying or not paying this or any other tax.” The logic of the Court’s opinion has made the Twenty-fourth Amendment virtually superfluous, as Justice John M. Harlan observed in his dissent.

As has been observed in our blog post on Amendment XIV, the “Equal Protection Clause” has had the unintended consequence of calling into question whether or not Illegal Aliens are entitled to the franchise. Although “common sense” might dictate otherwise, this is a real issue.

In late 2017, with a tie-breaking vote from the mayor, the City Council in College Park approved the measure to allow undocumented immigrants, student visa holders and residents with green cards to vote in local elections.

Several other cities in Maryland already allow noncitizens to vote locally. Chicago and San Francisco also offer noncitizen voting.

This page and its links contain opinion. As with all opinion, it should not be relied upon without independent verification. Think for yourself. Fair Use is relied upon for all content. For educational purposes only. No claims are made to the properties of third parties.

(c) 2018

Section 1. The District constituting the seat of Government of the United States shall appoint in such manner as Congress may direct:

A number of electors of President and Vice President equal to the whole number of Senators and Representatives in Congress to which the District would be entitled if it were a State, but in no event more than the least populous State; they shall be in addition to those appointed by the States, but they shall be considered, for the purposes of the election of President and Vice President, to be electors appointed by a State; and they shall meet in the District and perform such duties as provided by the twelfth article of amendment.

Section 2. The Congress shall have power to enforce this article by appropriate legislation.
Amendment XXIII

The inability of the citizens of the District of Columbia to participate in federal elections has been controversial since the federal seat of government of the United States came into existence in 1800. In 1960, Congress rectified the situation concerning the District’s participation in presidential elections by passing the Twenty-third Amendment. It enables the District to participate in presidential and vice-presidential elections in the same manner in which the states participate in those elections. The states swiftly ratified the proposed amendment in time for the District to cast electoral votes in the presidential election of 1964. The amendment did not address the District’s lack of representation in Congress.

The legislative history of the amendment makes clear that the drafters sought to provide the seat of government of the United States, the District of Columbia, with the same method of selecting presidential electors in the Electoral College as the states employed to select their presidential electors. The legislative history also reveals that some of the key drafters were ignorant of the relevant constitutional history concerning the manner in which the states had selected their presidential electors. Early in U.S. history, some states chose electors by district, others by the state legislature, and others by a “winner-take-all” system. Despite this confusion, the Twenty-third Amendment clearly provides Congress the same leeway as the state legislatures in enacting the electoral vote selection procedures for the District.

The amendment contains some sui generis provisions. The amendment expressly caps the District’s electoral votes at the number equal to the least populous state. This, in effect, provides the District with three electoral votes regardless of the population of the District. In addition, because the parallel constitutional provisions grant the respective state legislatures with plenary power over the method of selection of the presidential electors, a like power was necessarily given to Congress. The legislative history notes that “the language follows closely, insofar as it is applicable, the language of article II of the constitution.”

Although not constitutionally required, Congress, by statute, has adopted a winner-take-all system, in which the winner of the plurality of votes receives all of the District’s presidential electors. Such winner-take-all systems have been enacted in all fifty states except for Maine and Nebraska. Recently, controversies over the Twenty-third Amendment have arisen as part of efforts for District statehood or to provide the District with representation in the federal legislature. For example, if Congress, by statute, accepted the District of Columbia as the State of New Columbia, and the present “seat of government of the United States” was not eliminated but reduced to a small federal enclave containing the White House and the federal Mall, what would become of the Twenty-third Amendment?

Many District-statehood and District–voting-rights proponents generally seek to avoid amending the Constitution because of the difficulties of obtaining congressional approval and state ratification. They contend that the Twenty-third Amendment would become a “dead letter” without the necessity of formal repeal by constitutional amendment, because there would be virtually no residents left in the federal enclave. On the other hand, “the Seat of Government of the United States,” the entity designated in the amendment to receive electoral votes, would still exist in its geographically reduced form. That constitutional entity, absent constitutional repeal, would still be constitutionally entitled to the electoral votes under the Twenty-third Amendment. Any congressional effort to repeal the enabling legislation, but not to repeal the Twenty-third Amendment, would likely face constitutional difficulty. For example, the concept that any constitutional provision can be deemed a “dead letter” by legislation runs contrary to basic principles of the American constitutional structure. Additionally, such a scenario could imply that a state legislature could exercise like authority and act to disenfranchise its citizens from participation in the Electoral College.

For decades, these concerns seemed academic and hypothetical. However, the 2000 presidential election and the controversy over Florida’s electoral votes renewed focus on a state’s constitutional prerogatives concerning the manner and selection of presidential electors. Those constitutional developments necessarily inform Congress’s parallel obligations under the Twenty-third Amendment.

Just one more case of the law of unintended consequences…

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(c) 2018

Section 1. No person shall be elected to the office of the President more than twice, and no person who has held the office of President, or acted as President, for more than two years of a term to which some other person was elected President shall be elected to the office of President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by Congress, and shall not prevent any person who may be holding the office of President, or acting as President, during the term within which this Article becomes operative from holding the office of President or acting as President during the remainder of such term.

Section 2. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of three-fourths of the several States within seven years from the date of its submission to the States by the Congress.
Amendment XXII

Although the Twenty-second Amendment was clearly a reaction to Franklin D. Roosevelt’s service as President for an unprecedented four terms, the notion of presidential term limits has long-standing roots in American politics. The Constitutional Convention of 1787 considered the issue extensively, although it ultimately declined to restrict the amount of time a person could serve as President. But following George Washington’s decision to retire after his second elected term, numerous public figures subsequently argued he had established a “two-term tradition” that served as a vital check against any one person, or the presidency as a whole, accumulating too much power. Congress expressed its interest in presidential term limits by introducing 270 measures restricting the terms of office of the President prior to proposing the Twenty-second Amendment.

Nonetheless, sustained political attention to this matter only developed with Roosevelt. In 1946, lawmakers made the President’s four terms an issue in congressional election campaigns, pledging to support a constitutional amendment that would prevent a similarly lengthy presidency in the future. In January of 1947, prominent House leaders acted on these campaign promises, introducing an initiative that ultimately became the Twenty-second Amendment.

The turning point in the debates on the measure occurred when Senator Warren Magnuson argued for an amendment that would simply bar someone from being “elected to the office of President more than twice.” Magnuson claimed that other proposals being considered were too “complicated” and comprehensive and might unfairly restrict a person who assumed the office of President “through circumstances beyond his control, and with no deliberation on his part…but because of an emergency,” such as the death of an elected President. When some legislators countered that Magnuson’s proposal provided insufficient controls on those who assumed the presidency through these “unfortunate circumstance[s],” a compromise was struck. The final proposal provided a general prohibition against a person being elected to the office of the President more than twice while imposing additional restrictions on some individuals who attained the office of President through nonelectoral means, such as succession. The resulting language is what we now know as the Twenty-second Amendment.

We can safely conclude that those who drafted the amendment sought somehow to prevent the emergence of a President with a tenure as lengthy as Roosevelt’s. Many proponents of the measure further argued that they sought to codify the two-term tradition associated with Washington. But although these observations surely point us to the general aspirations of the amendment’s authors, they do not establish a specific picture of how the framers intended their proposal to apply.

To begin with, congressional deliberations about the amendment were curtailed. (Sounds remarkably similar to; “We need to pass it to find out what’s in it).

For example, the House restricted debate to two hours. Furthermore, the discussions leading up to the proposing of the Twenty-second Amendment did not obviously suggest a consistent, clear legislative purpose. Lawmakers expressed, at various times, their interest in limiting a President’s “service,” “terms,” “tenure,” and “[eligibility for] reelection,” without elaborating exactly how they understood these terms. Moreover, when Congress dropped early proposals to foreclose a person’s eligibility for office if he had served in two prior terms and instead adopted the current text that focuses on limiting individuals twice elected to the presidency, it provided little explanation for this important shift beyond needing “compromise” as part of the lawmaking process. One should also note that the framers of the amendment did not obviously intend to create a two-term tradition in any narrow sense, because they specifically discussed allowing someone who became President through an “emergency” within the first two years of one term to secure election for two additional terms. We are therefore left with some uncertainty about the precise goals of the Twenty-second Amendment’s creators.

The ratification debates over the amendment do not provide much additional insight into the particular wishes of those who supported the proposal in the states. In general, the amendment does not appear to have prompted a great deal of public or legislative discussion once proposed by Congress.

Although numerous court opinions make passing reference to the Twenty-second Amendment, its parameters have not been systematically examined by the judiciary. No doubt the low profile of the amendment in the courts reflects limited interest in and opportunity for testing the provision. Since the amendment was ratified, only six Presidents have been technically limited by it (Dwight D. Eisenhower, Richard M. Nixon, Ronald Reagan, William Jefferson Clinton, George W. Bush and Barack H. Obama were all twice elected), and, to date, none of these individuals seriously considered challenging the amendment’s legal restrictions or meaning.

These facts should not lead one to conclude that the Twenty-second Amendment is so straightforward that it requires no further interpretation. Among other unresolved questions, the amendment seems to leave open the possibility that a twice-elected President could still become President through nonelectoral means. For example, such a person might still be elevated to the presidency after serving as Vice President, or, if authorized, to act as President through a presidential-succession statute.

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.
Amendment XXI

When the nation repealed Prohibition via the Twenty-first Amendment in 1933, it vested primary control over alcoholic beverages in the states. The common understanding of the framers of the Twenty-first Amendment was that it grants each state the power to regulate alcoholic beverages within its borders without intrusion by federal law or regulation. The question remains, however, as to how much and what kind of federal intrusion the amendment blocks. The Twenty-first Amendment has three parts. Section 1 explicitly repealed the Eighteenth Amendment and brought an end to Prohibition. Accordingly, because many saw the Twenty-first Amendment as nothing but a repeal of the Eighteenth Amendment, Congress passed the resolution without much substantive debate. Most of the legislative debate centered on the issue of saloons and the ratification process codified in Section 3 of the amendment, which mandated the use of state conventions. The amendment was passed by the Senate on February 16, 1933, and by the House four days later. It became law on December 5, 1933.

In the original resolution there was an additional section, which granted Congress and the states “concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold.” This provision was designed primarily to authorize the prohibition of saloons. But Members of Congress finally agreed that such regulation belonged with the states, and the section was removed.

Section 2 became the Twenty-first Amendment’s primary source of judicial conflict. The question was whether the amendment gave the states absolute control over alcohol, notwithstanding the Commerce Clause and the Import-Export Clause, or whether the amendment permitted the states only enough autonomy to be dry without infringing on the scope of the rest of the Constitution. The amendment tracks very closely the language of a pre-Prohibition federal statute, the Webb-Kenyon Act (1913), current version at 27 U.S.C. § 122 (1994), that gave states power to tax alcoholic beverages not only when sold in state, but also when sold through the mail in interstate commerce.

In State Board of Equalization v. Young’s Market Co. (1936) and in Ziffrin, Inc. v. Reeves (1939), the Supreme Court originally interpreted the Twenty-first Amendment as an absolute exception to the Commerce Clause. However, this changed in 1964 with a string of Twenty-first Amendment cases. In Hostetter v. Idlewild Bon Voyage Liquor Corp. (1964), Justice Potter Stewart, writing for the majority, argued forcefully that the Twenty-first Amendment was not an absolute exception to the Commerce Clause as far as liquor was concerned. Likewise, in Department of Revenue v. James B. Beam Distilling Co. (1964), the Court held that Kentucky’s tax on imported whiskey violated the Import-Export Clause. Justice Stewart, again writing for the majority, stated:

To sustain the tax which Kentucky has imposed in this case would require nothing short of squarely holding that the Twenty-first Amendment has completely repealed the Export-Import Clause so far as intoxicants are concerned. Nothing in the language of the Amendment nor in its history leads to such an extraordinary conclusion. This Court has never intimated such a view, and now that the claim for the first time is squarely presented, we expressly reject it.

Similarly, in Wisconsin v. Constantineau (1971), the Court held that a Wisconsin statute, which empowered a police chief to post in all local retail liquor outlets a notice forbidding the sale of alcohol to the plaintiff because of his excessive drinking, without giving the plaintiff any advance notice or opportunity to contest it, violated the due process requirements of the Fourteenth Amendment.

Throughout the 1970s and early 1980s, the Supreme Court continued to chip away at the Twenty-first Amendment. See, e.g., United States v. Tax Commission of Mississippi (1975) (holding that the states could not tax the sale of liquor on military bases within their borders because the United States has concurrent jurisdiction over military bases); Craig v. Boren (1976) (noting that the Twenty-first Amendment does not override the equal-protection requirements of the Fourteenth Amendment); California Retail Liquor Dealers Ass’n v. Midcal Aluminum, Inc. (1980) (finding that the Twenty-first Amendment does not protect a state regulation that violates the Sherman Act because of the Supremacy Clause); Larkin v. Grendel’s Den, Inc. (1982) (stating that the state may not exercise its powers under the Twenty-first Amendment in a way that impinges the rights protected under the Establishment Clause). But see New York State Liquor Authority v. Bellanca (1981) (allowing a state to prohibit the sale of liquor on premises where topless dancing occurs because “[w]hatever artistic or communicative value may attach to topless dancing is overcome by the State’s exercise of its broad power under the Twenty-first Amendment”).

In Capital Cities Cable, Inc. v. Crisp (1984), the Court finally articulated a balancing test to determine when the state’s powers under the Twenty-first Amendment trump the Commerce Clause:

In such a case, the central question is whether the interests implicated by a state regulation are so closely related to the powers reserved by the Amendment that the regulation may prevail, even though its requirements directly conflict with express federal policies.

Utilizing this balancing test in Bacchus Imports, Ltd. v. Dias (1984), the Court struck down a Hawaiian tax law that favored certain liquors that were only manufactured locally because “[s]tate laws that constitute mere economic protectionism are…not entitled to the same deference as laws enacted to combat the perceived evils of an unrestricted traffic in liquor.”

In 324 Liquor Corp. v. Duffy (1987), the Court balanced the state’s virtually complete control over the liquor distribution system within its borders against the policy behind the Sherman Anti-Trust Act and found the latter of more weight. In a sharp dissent, Justice Sandra Day O’Connor, joined by Chief Justice William H. Rehnquist, rejected the majority’s conclusion. The dissent described in detail the legislative history and the subsequent state practices to show that the amendment was designed to give the states absolute control over the manufacturing and distribution of liquor within their borders. The “Senate discussions,” she wrote, “clearly demonstrate an intent to confer on States complete and exclusive control over the commerce of liquor.” The states understood the meaning as well. Immediately after the ratification of the Twenty-first Amendment, states enacted strong price-control measures, “the very type of statute that this Court strikes down today.” The majority opinion answered Justice O’Connor’s argument with a one-paragraph footnote that focused on maintaining federal economic power through the Commerce Clause and the Antitrust Laws.

That same year in South Dakota v. Dole (1987), the Court held that Congress could use its spending power to regulate indirectly interstate commerce with regard to intoxicating liquors. In Dole, Congress made certain highway funding contingent upon a state’s acceptance of a minimum drinking age of twenty-one years. Justice O’Connor and Justice William J. Brennan, Jr., each filed dissents, with Brennan arguing that the Twenty-first Amendment limited the spending power.

In 44 Liquormart, Inc. v. Rhode Island (1996), the Court held that Rhode Island’s prohibition against certain advertisements stating the prices of liquor was an abridgment of the First Amendment’s protection of free speech. Although the lengthy decision contained several concurring opinions, all nine Justices agreed that the Rhode Island law was not saved by the Twenty-first Amendment.

After a number of years in which the Supreme Court pruned state powers under the Twenty-first Amendment, the amendment now leaves a state with the power to become dry if it chooses. Beyond that, however, the Court has held that state control of liquor is subject to federal power under the Commerce Clause (Article I, Section 8, Clause 3), Granholm v. Heald (2005), the Spending Clause (Article I, Section 8, Clause 1), the First Amendment, and, it follows, the Necessary and Proper Clause (Article I, Section 8, Clause 18) and the Supremacy Clause (Article VI, Clause 2).

So, once again, friends and neighbors, the Constitution, (and any amendments), as written by the Legislative branch means exactly what the Congress says it means… unless the Supreme Court says it doesn’t… maybe.

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