This is something that has always confused me. In 1919 the US Constitution was amended to ban alcohol. That amendment was repealed in 1933. Then in 1970 an act of Congress banned a large number of drugs, without a constitutional amendment. Numerous subsequent acts have added additional substances to the list.

Was a constitutional amendment actually necessary for the federal government to ban alcohol?

If so: Why was one unnecessary to ban and control hundreds of other substances, fifty years later?

If not: Why was a constitutional amendment used in 1919 instead of an ordinary law?

2 Answers 2


It is quite likely that a constitutional amendment was (and is) not needed to ban alcohol. For example, if the Controlled Substances Act is constitutional (and I have no reason to believe it isn't) then alcohol could be added to it tomorrow and it could be removed the day after tomorrow.

Right there is the reason that you choose to use a constitutional amendment - it is as hard to reverse as it was to enact; it needs another constitutional ammendment.

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    The Controlled Substances Act is constitutional under the Commerce Clause as interpreted today. But prior to the 1930s, the courts tended to interpret it much more narrowly. I'm not sure that an act of Congress to ban alcohol would have been found constitutional by the courts in 1919. Sep 22, 2020 at 3:39

A complete ban on alcohol by the federal government would most likely be held unenforceable. Congress's arguably strongest power to regulate is through the commerce clause.

The commerce clause as reinterpreted in United States v. Lopez, requires the regulated act to substantially affect or relate to interstate commerce. As long as a state permits alcohol to be made in the state and the alcohol never leaves the state, one can argue there is no substantial effect.

In that case congress would have no authority to regulate alcohol.

Also there is the case of the 18th amendment and it subsequent repeal. This suggests that congress did not have the power to ban alcohol prior to the 18th amendment. Most likely a blanket alcohol ban will not be found constitutional, a ban of alcohol being imported internationally or between states will most likely be found constitutional.

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    "As long as a state permits alcohol to be made in the state and the alcohol never leaves the state, one can argue there is no substantial effect" - How do you reconcile that with Wickard v. Filburn?
    – user3851
    Feb 1, 2016 at 3:49
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    @Dawn Or Gonzales v. Raich.
    – cpast
    Feb 1, 2016 at 4:07
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    A couple of ways, although Wickard would be the obvious case you're arguing against. Most notably, Wickard was a long time ago and the Court is embracing a little more of a shift toward strengthening states' rights at the moment. Secondly, alcohol is intimately connected with criminality and the police power which is traditionally reserved to the state. Thirdly, in the face of a federal ban on alcohol there is no interstate traffic in alcohol, so you can argue no effect at all, while there was always an interstate traffic in wheat. You might lose, but would have a good argument.
    – Tom
    Feb 1, 2016 at 4:10
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    @TomW "there is no interstate traffic in alcohol" - you can't get Kentucky bourbon in California?
    – Dale M
    Feb 1, 2016 at 4:41
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    @DaleM currently there is such traffic, under this hypothetical law there won't be and the states will make sure they only allow alcohol within their state that was made there.
    – Viktor
    Feb 1, 2016 at 4:44

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