The Odd Clauses: Understanding the Constitution Through Ten of Its Most Curious Provisions

chapter 6 The Twenty-first Amendment: Federalism

"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."
Amendment XXI, Section 2

This may come as a surprise, but in the late 1960s, the problem of “bottomless” dancing in California bars and nightclubs had spiraled out of control. Or at least that was the opinion of the state’s Department of Alcoholic Beverage Control, which became so worried about the menace that it held a series of public hearings to figure out the extent of the peril and what to do about it. The testimony at these hearings revealed, in the words of one federal court, a “sordid” story, “primarily relating to sexual contact between dancers and customers.” Apparently, bottomless-dancing clubs were not nearly as wholesome as one might imagine. According to a different court: “Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself.” The State of California, in other words, had turned into a Bangkok red-light district.

Of course, the state had already made it illegal for customers and dancers to engage in public sexual acts, but apparently those laws had not done the trick (so to speak). The agency in charge of licensing the sale of alcoholic beverages within the state therefore decided to do something about the bottomless dancing itself. It passed a series of regulations prohibiting a variety of lewd practices in any establishment selling liquor. Specifically, no club holding a liquor license could allow any person to perform acts of or simulating “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation . . . [or] the touching, caressing or fondling on the breast, buttocks, anus, or genitals.” The state figured that banning these activities in bars would pretty much end them altogether; what guy, after all, is going to pay money to watch a woman simulate caressing her buttocks if he can’t enjoy a beer at the same time?

The problem, however, was that California’s regulations seemed clearly to violate the First Amendment. Fifteen or so years earlier, the Supreme Court had held that the government may not ban arguably profane speech or expression that does not rise to the level of “obscenity,” with the term “obscenity” being very specifically defined as material that, when “taken as a whole,” appeals to a “prurient” interest in sex and patently offends “community standards” relating to sex, while completely lacking any “social importance.” Nothing in the regulations limited their application only to “obscene” instances of bestiality or flagellation. Accordingly, when a group of dancers and license holders sued to have the regulations invalidated, the three-judge lower federal court that heard the case held that the regulations were unconstitutional.

The Supreme Court, however, reversed. The Court agreed that the “regulations on their face would proscribe some forms of visual presentation that would not be found obscene” under its prior cases. So why uphold the regulations? The answer appeared to rest in the language of Section 2 of the Twenty-first Amendment, which was ratified in 1933 to repeal the era of Prohibition that had been ushered in fourteen years earlier by the Eighteenth Amendment. According to the Court, Section 2 of the Twenty-first Amendment acted like a thumb on the scale of state power, giving states the authority to regulate alcohol in ways that would otherwise violate the Constitution. As the Court put it: “[T]he broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. . . . Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.”

That seems like a strange result, doesn’t it? How could the amendment that ended Prohibition be used by the Court to uphold a restriction on the sale of alcohol? Well, that depends on what the Twenty-first Amendment was all about. Was it about making alcohol legal, or was it about taking power over alcohol away from the federal government and returning it to the states, where it had always resided prior to 1919?

Perhaps the most difficult issue facing the framers of the Constitution was how to balance the powers of the new federal government with the powers of the states—to work out, in other words, the problem of federalism. Between the end of the Revolutionary War and the ratification of the Constitution, the newly independent states had been operating under the Articles of Confederation, a document that cre- ated a very limited federal government and left most powers to the states. This regime worked poorly, particularly because the states competed with each other for economic supremacy, taxing each other’s goods and otherwise refusing to trade freely among themselves. The federal government, lacking executive and judicial power and possessing only a weak legislature, couldn’t do anything to preserve interstate harmony. When the Constitutional Convention met in 1787, it was clear that the federal government needed to be given more power, but a lot of disagreement remained between the so-called federalists and anti-federalists about exactly how much.

In many ways, the Constitution represents a compromise between these two camps. Most importantly, although the Constitution creates a substantial, three-branch national government, it confers upon that government only a series of specific, limited powers; everything else is left to the states. As discussed in chapter 2, Congress may only exercise those powers enumerated by the Constitution; the founding document does not give Congress any sort of general police power to regulate purely local activities. Likewise, as discussed in chapter 4, the jurisdiction of the federal judiciary is limited to cases involving federal law and cases involving plaintiffs and defendants from different states. Run-of-the-mill controversies about real property, contract terms, criminal law, and negligently dropping a brick on someone’s foot generally cannot be heard by the federal courts.

In addition, two key amendments to the Constitution specifically protect the states. The Eleventh Amendment, ratified in 1795, says: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The amendment was motivated by a famous early Supreme Court case called Chisholm v. Georgia, which held that a citizen of South Carolina could sue the State of Georgia to recover debts from the Revolutionary War. The states kind of freaked out about the idea that people could sue them for the mountains of debt they had incurred during the war, and they acted promptly to enact the Eleventh Amendment. Even though the language of the amendment clearly does not bar citizens from suing their own state and clearly applies only to federal courts, the Supreme Court has priggishly extended the amendment to all citizens and all courts. As a result, states are immune from a lot of lawsuits that they shouldn’t be, like suits brought against them by their own citizens to enforce federal employment or environmental laws, even if these suits are brought in state court.