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Section 2 of Amendment 21 to the US Constitution says the following:

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.

What exactly is accomplished by this? Isn't something done in "any State, Territory, or possession of the United States" "in violation of the laws thereof" already "prohibited," because it is done "in violation of the laws thereof"?

If this is intended to clarify that states and territories can still forbid alcohol after the repeal of Federal Prohibition (a clarification which seems unnecessary anyway; why wouldn't they be able to?), why doesn't it say something like "The States and Territories shall have the power to forbid the transportation or importation of intoxicating liquors"?

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    States do generally not get their powers from the US Constitution (though elsewhere it does restrict their powers). So your wording would be a novelty. It might also fail to cover cases for example of State Law allowing delivery or use but subject to conditions.
    – Henry
    Oct 18, 2023 at 1:40

1 Answer 1

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State laws that impair the ability of businesses to operate on an interstate basis can be held unconstitutional and invalidated pursuant to a U.S. Constitutional law doctrine known as the dormant commerce clause. As Wikipedia explains at the link:

The Dormant Commerce Clause is used to prohibit state legislation that discriminates against, or unduly burdens, interstate or international commerce. Courts first determine whether a state regulation discriminates on its face against interstate commerce or whether it has the purpose or effect of discriminating against interstate commerce. If the statute is discriminatory, the state has the burden to justify both the local benefits flowing from the statute and to show the state has no other means of advancing the legitimate local purpose.

Section 2 of the Twenty-First Amendment to the U.S. Constitution, prevents the federal courts from striking down state regulation of alcohol on dormant commerce clause grounds.

It also removes from the legislative authority of Congress the ability to enact legislation pre-empting state alcohol regulation or forbidding the District of Columbia, Puerto Rico, the U.S. Virgin Islands, Guam, or other self-governing territories of the United States from regulating alcohol. Indeed, this is the only authority that the United States government is denied with respect to self-governing territories of the United States.

While this issue doesn't come up a lot, it has been invoked now and then to uphold state laws governing mail order sales of alcohol to residents of those states, and other kinds of alcohol regulations that might otherwise be unconstitutional, in the face of various kinds of legal challenges to their validity.

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  • The amendment doesn't seem to remove the power of Congress to change the laws of a US territory with respect to alcohol, though. Then, the importation of alcohol into that territory would no longer be "in violation of the laws thereof". In addition, Congress has the power to amend the statute that grants the territory home rule, to remove the ability of the territorial legislature to enact any similar law in the future.
    – Brian
    Oct 18, 2023 at 18:19
  • @Brian: That's pretty much a tautology. Territories are not sovereigns like the states - they have much more limited devolved powers that Congress may give or take away as it pleases. You can't fix that with one line about "the laws thereof" - you would need to totally recharacterize the relationship between territories and the United States, and give them some analogue of the Tenth Amendment.
    – Kevin
    Oct 18, 2023 at 18:25
  • @Kevin I'm not disagreeing with you. The point is that the 21st amendment doesn't really take any powers away from Congress with respect to the territories, as one might think from reading this answer. It merely changes the words that Congress has to use in order to exercise its powers.
    – Brian
    Oct 18, 2023 at 22:23
  • @Brian I would disagree with you. Your resolution is too clever by half and I doubt that a court would agree with this reasoning.
    – ohwilleke
    Oct 18, 2023 at 23:26

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