...The manufacture, sale, or transportation of intoxicating liquors...is hereby prohibited

The 18th amendment is pretty clear in its intent, but my question is why? Why did the amendment ban alcohol outright instead of simply giving Congress the power to regulate (i.e. prohibit) the manufacture, sale and transportation. It seems this approach would have given Congress more flexibility as far as the specifics of prohibition, and likely would have eliminated the need for the 21st amendment altogether, since Congress simply could have repealed any laws they had passed banning alcohol.

  • 7
    From the perspective of the temperance movement, I think you've answered your own question. They didn't want Congress to have flexibility, they wanted to ban alcohol. I'm not sure if the pro-alcohol interests proposed such a compromise as you suggest, but if they did, it didn't work.
    – Brian Z
    Aug 24, 2020 at 15:13

3 Answers 3


I think you overlooked Section 2 of that amendment:


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

Congress was given the power to make all the necessary laws, but only within the context of alcohol being banned. If the amendment simply read "Congress shall have the power to legislate a ban on alcohol", it wouldn't actually have any effect on its own - those who supported it would have to get another law passed through both houses of Congress, and then a future Congress could trivially repeal it. By making the ban explicitly part of the amendment, it "permanently" locked in the ban that the temperance movement was looking for.

Additionally, the 18th amendment is structured the same as the 13th and 15th amendments, so there was precedent for this form:

  • Section 1: Ban [slavery | racial voting restrictions | alcohol]
  • Section 2: Congress can legislate about it

The 16th amendment could be is a counter-example, where it simply gives Congress the power to write new law, but there the amendment was specifically overriding one of the original Constitutional provisions, rather than adding new ones.

  • The 13th Amendment is not the same thing; the term "slavery" refers to a legal state, so banning it means abolishing it. It's like if there were an amendment banning copyright. There would be no need for any further legislation prohibiting copyright. Aug 24, 2020 at 19:46
  • @Acccumulation - But the 13th does have the second section. My understanding of the intent is "Congress can pass laws to define specific crimes and punishments related to this ban". So the amendment may ban slavery, but it's up to Congress how to actually enforce that ban.
    – Bobson
    Aug 24, 2020 at 20:01

The 18th amendment was ratified in 1919. This preceeds several rxpansive decisions that lead to the current understandings of Federal Government power.

Wickard v Filburn hadn't yet been decided in favor of Federal involvement in private enterprise.

J. W. Hampton, Jr. & Co. v. United States hadn't yet granted Congress the authority to delegate legislative powers to the Executive Branch.

US v. Butler hadn't yet given the Federal Government general authority to spend federal monies.

The writing of the 18th Amendment is done because it comes from a time where the Federal Government was still seen as only having the narrowly enumerated powers identified in the Constitution. In order to give the Federal Government the authority to ban the production of alcohol, it had to be explicitly enumerated.

  • 2
    True, but the question is why the 18th Amendment itself banned alcohol, rather than giving Congress the power to do that.
    – divibisan
    Aug 24, 2020 at 15:53
  • 3
    But the 18th amendment did not enumerate any powers. It didn't give the federal government the power to regulate something, it regulated directly. The question is why the 18th didn't just give the government more enumerated powers. Like the 16th did, for example. Why did the 18th amendment put a restriction on the general population, when most of the constitution deals with what the government can and can't do?
    – Philipp
    Aug 24, 2020 at 15:55
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    @Philipp specifically because the 18th amendment is an explicit curtailment of individual rights is why it was ratified worded as such. Ammending the Constitution to prohibit an entire practice of production and consumption, was a significant matter in 1919. Compare that with current drug laws. Giving the Federal Government the power to outlaw a thing required Ratification of the amendment to do so. Aug 24, 2020 at 16:07
  • That doesn't really answer the question. Yes, in order to ban alcohol, an amendment needed to be passed, but why not say "Congress has the power to ban alcohol" instead of saying "alcohol is banned"? Aug 24, 2020 at 17:56
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    @user8577930: The question can't really be answered accurately without recourse to summoning up the ghosts of the authors, but presumably so that if the pro-Prohibition contingent in Congress lost their majority in a future election, the new Congress couldn't simply repeal the law. Instead, it took more than a decade and a new Constitutional amendment to repeal Prohibition.
    – jamesqf
    Aug 24, 2020 at 21:26

Maybe the intent was to pull a bait and switch? I don't know enough about the background, but I read the Volstead Act entry recently after starting to watch Boardwalk Empire. intoxicating liquors seems intentionally vague - you may know it ending up meaning "all alcohol" now, but that might not have the case then.

Volstead Act

(emphasis mine)

It provided further that "No person shall on or after the date when the eighteenth amendment to the Constitution of the United States goes into effect, manufacture, sell, barter, transport, import, export, deliver, furnish or possess any intoxicating liquor except as authorized in this Act, and all the provisions of this Act shall be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented." The act defined intoxicating liquor as any beverage containing 0.5% or more alcohol by volume and superseded all existing prohibition laws in effect in states that had such legislation. This extremely low limit on allowed alcohol content, banning wine and beer, took many around the country by surprise, even Prohibition supporters.

  • Interesting, but wasn't the Volstead Act a bill passed by congress, under section 2 of the 18th Amendment? They could have defined the level of allowed alcohol content to whatever Congress wanted just as well if the 18th amendment only gave them the power to regulate, instead of requiring it
    – divibisan
    Aug 25, 2020 at 20:46
  • I don't know, but it seems to me as if "intoxicating liquor" may have been seen as "demon rum" or gin or any of a number of high-alcohol spirits (note the word intoxicating) and then the Volstead Act ran with it and decided any degree of alcohol fell under its purview. That's what the wiki article implies in any case and "ban alcohol outright", as asked by the OP, might not have allowed 18th Amendment to pass. Aug 25, 2020 at 21:01

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