Federal law -- and even the regulations written up by Federal agencies -- are no less (perhaps even more) binding, than the Constitution. But they are far easier to pass and alter.

Are there any standards on what can only be prohibited (or mandated) by a change in the Constitution vs. a lesser law?

For example, the ban on alcohol (known as "Prohibition") was a Constitutional Amendment (the 18th), whereas the very similar (if not identical) in nature bans on narcotics were simply Federal (and State) laws.

My own "gut feeling" -- without any formal legal education -- is that the Constitution proclaims something in general terms, and the laws then implement the details: banning actual particular activities, assigning punishments for different related violations, etcætera.

This explanation would make sense, but it does not work for many cases, such as, for example, the ban on narcotics...

2 Answers 2


Your gut feeling is reasonably close, but not precisely correct.

The Constitution sets the baseline rules for the powers of and interactions among the branches of the federal government, as well as the powers of and interactions between the state and federal governments.

With only one exception (the dilution of a state's representation in the Senate), the Constitution can be amended to basically anything. It can make anything legal and it can make anything illegal. It generally addresses fairly high-leval legal principles, but there's no reason that it couldn't be amended to include a 9,000-page law specifically addressing every conceivable aspect of the regulation of nuclear energy.

As it stands now and as it always has, the Constitution permits the federal government to write laws only with respect to certain topics. The states, meanwhile, retain authority to write laws on virtually any other topic.

There are a variety of legal and historical reasons why prohibition took the form of a constitutional amendment while drug laws are handled legislatively, but one important consideration is the scope of Congress's power to regulate "interstate commerce."

At the time of prohibition, it was not clear that Congress could regulate commercial activity that took place entirely within a single state. So if you grew all the ingredients for your whiskey in Kentucky, and you distilled those ingredients in Kentucky, and then you sold your whiskey in Kentucky exclusively to residents of Kentucky, it seemed that your conduct was outside the reach of Congress, and that any attempt to regulate it would be vulnerable to a constitutional challenge. The solution, therefore, was to amend the constitution and give that authority to Congress.

About a decade after prohibition ended, though, the Supreme Court decided that the power to regulate interstate commerce includes not just transactions that cross state lines, but also any conduct that “exerts a substantial economic effect on interstate commerce” Wickard v. Filburn, 317 U.S. 111, 125 (1942). This broadens the Commerce Clause authority to cover virtually any economic activity. So even if you buy marijuana seeds from your next door neighbor, plant them in your own back yard, grow them for strictly personal use in your own home, and never sell anything to anyone, the courts will hold that your conduct affects the interstate market for marijuana, and is therefore subject to federal regulation.

This standard substantially lowers the bar for Congress to act without a constitutional amendment, which is a big part of the reason there hasn't been an amendment to address narcotic use.

  • Oh... Is there anything the Congress still cannot regulate then -- after the Wichard v. Filburn? Thanks...
    – Mikhail T.
    Jun 22, 2022 at 17:24
  • 1
    Not much -- assuming it's actual economic activity. The only laws the Court has rejected as exceeding Commerce Clause powers were laws to prohibit carrying guns in school zones and requiring the purchase of health insurance.
    – bdb484
    Jun 22, 2022 at 17:28
  • So, back to my original question, what criteria are those -- at least, until Wickard v. Filburn is overturned -- that'd make a hypothetical lawmaker think: "No, we can't do this as a Federal law, this sort of change requires a Constitutional Amendment"?
    – Mikhail T.
    Jun 23, 2022 at 15:00
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    The criteria are (1) activity; (2) with a substantial economic effect; (3) on interstate commerce. Carrying guns in school zones failed because it doesn't have a substantial economic effect, and failing to purchase health insurance fails because it is non-activity.
    – bdb484
    Jun 23, 2022 at 19:45

To clarify, the U.S. Constitution technically did not ban alcohol, but rather allowed Congress and State legislatures to make laws enforcing a ban on alcohol. The Volstead Act, passed by Congress shortly after the 18th Amendment was ratified actually defined what types of products were banned and how such bans were to be enforced. When the 21st Amendment was ratified, the Volstead act became void because Congress no longer had authority to pass it or enforce it. Prior to and following Prohibition, regulation of alcohol was a power of the state (via the 10th Amendment, which basically says that unless the Constitution explicitly says something is a power of Congress, it's most certainly not the power of Congress but of a lower level of governance, either state, local, or individual).

A similar ban of a previous traded good can be found in the 13th Amendment (which ban's slavery) and reads very similarly to the 18th with one exception: The 18th Amendment allowed the states to regulate alcohol alongside the Feds where as the 13th Amendment did not let the states have any regulatory authority on the slavery ban (because the Confederacy was insistent that it was the right of the states because of the 10th Amendment. There was no civil war over drinking booze.).

  • 1
    "unless the Constitution explicitly says something is a power of Congress, it's most certainly not the power of Congress" That is not quite correct. In Mculloch v Maryland the Supreme Court decided that the law creating the Bank of the US was constitutional, even though there is no explicit power allowing the Federal Government to charter a bank, or any corporation. Other implied powers have been found constitutional, largely through the "necessary and proper" clause. Jun 22, 2022 at 20:31
  • If the 18th Amendment didn't ban alcohol, but merely allowed Congress to ban it, why was the 21st Amendment necessary? Why didn't Congress simply abolish the law, that actually banned alcohol instead -- leaving the Amendment allowing them to impose it in place?
    – Mikhail T.
    Jun 22, 2022 at 20:33
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    @Mikhail T It could have been done that way, and the short-term effect would have been identical. But that would have allowed any subsequent Congress to re-impose Prohibition. The proponents of the 21at amendment didn't want that. Jun 22, 2022 at 20:47
  • @MikhailT. They actually did. Or rather passed a new law, the March 1933 Cullen–Harrison Act, which allowed beverages that were 4% alcohol by volume (under Volstead they banned beverages above 0.5% alcohol by volume). This was one month after the Blaine Act, which would become the 21st Amendment that December and repeal the 18th setting things back to pre-prohibition rules.
    – hszmv
    Jun 22, 2022 at 21:19
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    This is not accurate. The 18th amendment expressly said, “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.
    – Davislor
    Jun 23, 2022 at 0:57

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