National Beer Day: Celebrate your “permission” to drink ... but not your “right”

Posted on 04-05-2016 by
Tags: Top Stories

If you enjoy beer, there are two days you might toast: April 7th, National Beer Day, and December 5th, Repeal Day, which celebrates the 21st Amendment. You can raise your glass to both days, but if you’re going to toast your freedom to drink, don’t “Hip, Hip, Hurrah!” the Constitution.

Instead, thank the powers that govern.

Power Over Your Drink

Years before prohibition, the states exercised their police powers to regulate alcohol. As defined in Leisy v. Hardin, 135 U.S. 100 (U.S. 1890):

[I]t is for the legislative branch of the state governments to determine whether the manufacture of particular articles of traffic, or the sale of such articles, will injuriously affect the public, and it is not for Congress to determine what measures a State may properly adopt as appropriate or needful for the protection of the public morals, the public health or the public safety.

Eventually, regulation shifted into the 18th Amendment’s prohibition of intoxicating liquors,[1] only to then shift back to the states with the 21st Amendment. Section 2 of the 21st Amendment states:

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.

Subject to certain restrictions,[2] the 21st Amendment restored alcohol oversight to the states.[3] It empowered state governments, not drinkers. Thus, as some mistakenly believe, the 21st Amendment didn’t create a constitutional right to drink.

A Constitutional Right to Drink … Somewhere?

But does a right to drink lie hidden somewhere … anywhere … in the Constitution?

To answer this question, an originalist might start with our Founding Fathers and their fondness of alcohol.

Take John Adams for example. While in Philadelphia for the Continental Congress,[4] Adams once wrote:

[W]e adjourn and go to dinner … and sit drinking Madeira, claret and  burgundy ‘til six or seven.[5]

Or Alexander Hamilton. Upon his arrival in Philadelphia for the Constitutional Convention, Hamilton, who was once advised to limit his wine intake,[6] hobnobbed with his fellow delegates at the Indian Queen Tavern.[7] Another favorite watering hole of the framers: Philadelphia’s City Tavern, which served food and spirits.

Some other examples:

  • James Madison started his day with a tumbler of whiskey;
  • George Washington owned whiskey distilleries;
  • Thomas Jefferson was a wine connoisseur; and
  • Benjamin Franklin penned a love poem to drinking.

But the Founding Fathers alone can’t decipher the Constitution’s original meaning. Originalism, to a degree, is patchwork of guesses - What did the Constitution originally mean? What did the framers originally intend? What did the ratifiers originally understand? – difficult questions about meaning, intention and understanding.[8]

These difficulties aside, the right to drink has been argued before, and the constitutional question answered.

Nearly 70 years after the Constitution’s ratification, the answer was in favor of alcohol.

A Right to Drink …

In Herman v. State, 8 Ind. 545 (Ind. 1855), the Indiana Supreme Court held that the Constitution prohibited Indiana from taking away the individual right to drink. In a colorful opinion, the court said:

[T]he right of liberty and pursuing happiness secured by the constitution, embraces the right, in each compos mentis individual, of selecting what he will eat and drink, in short, his beverages, so far as he may be capable of producing them, or they may be within his reach, and that the legislature cannot take away that right by direct enactment. If the constitution does not secure this right to the people, it secures nothing of value. If the people are subject to be controlled by the legislature in the matter of their beverages, so they are as to their articles of dress, and in their hours of sleeping and waking. … If the government can prohibit any practice it pleases, it can prohibit the drinking of cold water. Can it do that? If not, why not?

The court continued, rejecting outright prohibition but allowing for regulation:

But notwithstanding the legislature cannot prohibit, it can, by enactments within constitutional limits, so regulate the use of intoxicating beverages, as to prevent most of the abuses to which the use may be subject. We do not say that it can all; for under our system of government, founded in a confidence in man's capacity to direct his own conduct, designed to allow to each individual the largest liberty consistent with the welfare of the whole, and to subject the private affairs of the citizen to the least possible governmental interference, some excesses will occur, and must be tolerated, subject only to such punishment as may be inflicted. This itself will be preventive in its influence. The happiness enjoyed in the exercise of general, reasonably regulated liberty by all, overbalances the evil of occasional individual excess.

… But Wait! No Right to Drink

However, thirty years later, the U.S. Supreme Court answered in the opposite. In Mugler v. Kansas, 123 U.S. 623 (U.S. 1887), it was argued that Kansas’ constitutional prohibition against alcohol violated the 14th Amendment:

The argument … is, that in the implied compact between the State and the citizen certain rights are reserved by the latter, which are guaranteed by the constitutional provision protecting persons against being deprived of life, liberty, or property, without due process of law, and with which the State cannot interfere; that among those rights is that of manufacturing for one's use either food or drink

The Court rejected this argument, thereby rejecting the right to drink.[9]  The Court said:

[T]he entire scheme of prohibition, as embodied in the constitution and laws of Kansas, might fail, if the right of each citizen to manufacture intoxicating liquors for his own use as a beverage were recognized. Such a right does not inhere in citizenship. Nor can it be said that government interferes with or impairs any one's constitutional rights of liberty or of property, when it determines that the manufacture and sale of intoxicating drinks, for general or individual use, as a beverage, are, or may become, hurtful to society, and constitute, therefore, a business in which no one may lawfully engage.[emphasis added]

And reinforcing this non-right to drink … Surprise! … the 21st Amendment. In Felix v. Milliken, 463 F. Supp. 1360 (E.D. Mich. 1978), the court noted that any right to drink – if there was ever one – has since been denied by the 21st Amendment:

The analysis must begin then with a consideration of whether the right to access to alcohol is a "fundamental" interest. [The court asks] whether the right to drink alcohol is implicitly or explicitly guaranteed by the United States Constitution. It becomes quickly apparent that it is not; and it further appears that the twenty-first amendment to the United States Constitution explicitly or implicitly denies to an individual the claim that the right to drink alcohol is a fundamental right.

Your Only Option: The 28th Amendment

So on National Beer Day, raising a cold one is merely your “permissible” joy, not your fundamental right. To establish this right,[10] only the 28th Amendment will do. Hypothetically, pro-amendment crusaders could rally around the capriciousness of our current alcohol laws:

  • Around 200 counties nationwide, most in the South, still remain “dry”;
  • The arbitrary drinking age, twenty-one , overshoots “adulthood” (military draft/voting age) by three years;
  • Dated regulator laws impede the craft beer business in several states.

But only “hypothetically” because you can bet your beer that an amendment will never come. If you’re a drinker, it’s wishful thinking, and wishful thinking has faded into many failed amendments. A right to drink must fall upon the sword of too many risks, too many dangers, too many stigmas. Two-hundred years ago, the Founding Fathers recognized these dangers and risks.  Alexander Hamilton wrote:

[If a duty upon alcohol] should tend to diminish the consumption of it, such an effect would be equally favorable to agriculture, to the economy, to the morals and to the health of the society. There is perhaps nothing so much subject to national extravagance, as these spirits.[11]

And James Madison agreed, saying:

A tax on distilled spirit might as a sumptuary regulation, tend to encrease sobriety, and thereby prevent disease and untimely deaths.

But if Madison and Hamilton aren’t authoritative enough for you, then heed Homer Simpson, who summed up the alcohol dilemma when he said:

To alcohol! The cause of... and solution to... all of life's problems.


[1] States shared concurrent power with the federal government to enforce the alcohol ban. As noted in McCormick & Co. v. Brown, 286 U.S. 131 (U.S. 1932), “While state legislation cannot give validity to acts prohibited by the Eighteenth Amendment, that legislation may provide additional instruments to make prohibition effective.”

[2] Subject to federal powers (commerce, taxation) (e.g., Craft Beverage Modernization and Tax Reform Act and Small BREW Act), constitutional rights (equal protection) and federal incentivization (e.g. National Minimum Drinking Age Act)).

[3] The extent of the states’ regulatory power has been subject to various Supreme Court expansions and restrictions.

[4] Adams, as the first Ambassador to England, did not attend the Constitutional Convention.

[5] David McCullogh’s John Adams.

[6] Hamilton was told, “When you indulge in wine, let [it] be sparingly – never go beyond three glasses – but by no means every day.”

[7] Ron Chernow’s Alexander Hamilton.

[8] Jack N. Rakove’s Original Meanings.

[9] See also Lambert v. Yellowley, 4 F.2d 915 (2d Cir. N.Y. 1924) (holding that “A person has an inherent right to life, and in order to maintain it a right to eat and drink. But the right to drink liquors which are intoxicating the state or the United States may take away….”); Tarantina v. Louisville & N. R. Co., 254 Ill. 624 (Ill. 1912) (holding that “The right to drink intoxicating liquor is a personal right, but it is no more sacred than the other rights of the individual, and all are subject to the police power of the State for the preservation of order and good morals.”)

[10] A right to drink isn’t a defense of excess. All rights boil under with inherent dangers, no different than liberty itself. For example, in The Federalist Papers, No. 1, Alexander Hamilton diagnosed this “sickness” lurking within liberty:

[T]he noble enthusiasm for liberty is too apt to be infected with a spirit of narrow and illiberal distrust.

[11] The Federalist Papers, No. 12.

If you are interested in this topic, check out the status of pending legislation of Microbrew Bills throughout the country. 2016 StateNet Legislative Report: Microbrew Bills

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