3

I think it can be argued that Congress, by making the prohibition of alcohol unconstitutional, intended to remove the problems of prohibition, specifically, organized crime.

Would my logic be sound to presume that alcohol is a mode of drug delivery and so it would be that all drugs can be regulated but not prohibited?

  • Thanks, pretty close to it.. 2. Liquor is the medium of delivery of the drug alcohol, 3. therefore, the 21st A means no drug delivery mediums can be prohibited. – irth Jun 10 '15 at 22:49
  • I've threatened this defence a couple times (small offences) and both times the case was thrown out before I could appear before the court. Want to know if they just didn't want to deal with me or if the argument had bite. – irth Jun 10 '15 at 22:51
  • Something else to consider: Most of the time, small-scale drug crimes are dealt with at the state level, not the federal level (this is why states legalizing marijuana has an effect). The 21st Amendment doesn't in any way make prohibition unconstitutional; at most, it makes it a state matter (in fact, it affirms state regulation, by banning the import of alcohol into a state in violation of state laws). So, the 21st Amendment can't be a barrier to state prosecution for drug crimes. – cpast Jun 15 '15 at 0:28
2

First, let's look at the text of the 18th and 21st Amendments:

18th Amendment

AMENDMENT XVIII
Passed by Congress December 18, 1917. Ratified January 16, 1919. Repealed by amendment 21.

Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.

Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.

Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

21st Amendment

AMENDMENT XXI
Passed by Congress February 20, 1933. Ratified December 5, 1933.

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 The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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.

In both Amendments, the phrase "intoxicating liquors" is used. Mirriam-Webster defines a liquor as

a liquid substance: as

a : a usually distilled rather than fermented alcoholic beverage

b : a watery solution of a drug

The Oxford English Dictionary gives a similar definition, including:

  1. A liquid produced or used in a process, in particular:

2.1 Liquid in which something has been steeped or cooked.

2.2 Liquid which drains from food during cooking.

2.3 The liquid from which a substance has been crystallized or extracted.

Based entirely on those, one could argue that liquid versions of some drugs could be considered liquors, if you were to modify them a little. However, this is not necessarily the case in the eyes of the government and related agencies. The CDC says

Ethyl alcohol, or ethanol, is an intoxicating ingredient found in beer, wine, and liquor. Alcohol is produced by the fermentation of yeast, sugars, and starches.

This seems to imply that alcohol must be present in liquors. Also, other laws use the phrase "intoxicating liquor" to describe a class of alcoholic beverages; see, for example, Section 311.020 of Chapter 311, Liquor Control Law, of Missouri.

Furthermore, given that the term "liquor" is often used colloquially to refer to malt liquors, it could be argued that a reasonable person would understand that liquors contain alcohol.

The above arguments rule out the possibility of other drugs being considered by the 18th and, thus, 21st Amendments.

The reasoning of nomen agentis provides an explanation for why the specific argument you give is invalid. It boils down to "All alcoholic beverages contain drugs, but not all drugs contain alcohol."

The reasoning you give is invalid.

3

Your argument is:

  1. The 21st amendment repealed the prohibition of alcohol.
  2. Alcoholic drinks deliver one type of drug (alcohol)
  3. Therefore, the 21st amendment repealed the prohibition of all drugs.

That is an logically invalid argument. It is equivalent to:

  1. If A then B
  2. If A then C
  3. Therefore, if C then B.

Further, the court has never held that the government lacks the power to regulate and prohibit drugs. It is hard to prove a negative, but see Gonzales v. Raich 545 U.S. 1 (2005):

Congress’ Commerce Clause authority includes the power to prohibit the local cultivation and use of marijuana in compliance with California law.

As this was a constitutional question, had the 21st amendment prevented Congress's prohibition, that would have likely come up in this case.

  • 1
    Ah, I see. So if it was Congress' intent to prevent prohibition of all drugs then they needed to be explicit and there isn't implicit traction here? – irth Jun 10 '15 at 22:57
  • 1
    @irth Yes, exactly. One of the principles of statutory/constitutional interpretation is the textual approach, or a plain meaning approach. Most analysis starts at the plain meaning of the text, and only if the plain meaning is ambiguous or unreasonable does analysis start to look for other signals like intent of the legislature/founders, etc. – user248 Jun 10 '15 at 22:59
  • Would it have revealed it? I don't think anyone raised the claim, so is the court's ruling considered a rejection of that claim (as the court would have discovered it itself it was valid)? – cpast Jun 10 '15 at 23:31
  • @cpast I was a bit hyperbolic, but I meant that it would have likely been briefed by Riach's side, which included amicus briefs from three different states, and the Constitutional Law Scholars. My expectation is that if the 21st amendment argument was compelling, that one of those briefs would have mentioned it. – user248 Jun 10 '15 at 23:42
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    Also, I think there's one more key component: at the time the 21st Amendment was adopted, other drugs were a thing. Courts do extend language from time to time; the Constitution doesn't allow Congress to make an air force (just an army and navy) or regulate it (just land and naval forces), but since air forces didn't exist at the time and it's the same sort of thing it still falls under the category. But the 21st Amendment could have been explicitly applied to all drugs, and it wasn't. – cpast Jun 11 '15 at 21:42

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