Drink, to the Progressive Constitution!

Today marks the 75th anniversary of the ratification of the 21st Amendment, or the repeal of Prohibition. Tonight, throughout the land, patriots shall celebrate the Peoples’ constitutional right to manufacture, sell, or transport “intoxicating liquors.”

While we certainly encourage Americans to help themselves to a beer or two this evening in celebration of the repeal, an important historical point bears noting. As constitutional scholars such as Akhil Amar have observed the Constitution has “thus far and in general, followed a progressive course.” What Amar means is that our Constitutional amendments have, for the most part, expanded Americans’ liberties. The 18th Amendment stands out as an exception to this trend, representing one of the few instances in our history where the Constitution restricted individual rights and passed a moral judgment on actions important to a sizeable portion of the American populace. In this regard, one could argue that no amendment has taken the Constitution in a conservative direction more so than the 18th.

It just so happens, however, that the 18th Amendment is also the only amendment ever to be repealed. This history should serve as warning to those who would seek to further amend the Constitution to restrict Americans’ individual freedoms. This evening, three quarters of a century after Prohibition, Americans are out celebrating the repeal, rather than the ratification, of the 18th Amendment – indicating that attempts to pass moral judgment on Americans’ behavior through our nation’s founding document are unlikely to survive the test of time.