Are Current State Drinking Limits Unconstitutional?

I’ve finished reading Akhil Amar’s excellent book on The Unwritten Constitution, and this week I plan to do some posts based on his work.

One powerful argument in the book is that some constitutional words or commands should be read as embodying broader principles.  For example, the word “Congress” in the First Amendment does not mean that the President may violate the freedom of speech.  Likewise, the Nineteenth Amendment’s directive that women have the right to vote also (by implication) means that they have a constitutional right to run for office.  There are lots of other examples–I won’t belabor the point.

Here’s my question.  Why couldn’t you read the Twenty-Sixth Amendment to say that people have a right to drink at age 18?  That argument would go something like this:

1.  The reason for lowering the voting age from 21 to 18 was that men younger than 21 were being sent to Vietnam.  Since 18-year olds can be drafted by their country, they should have the right to vote for those who could order a draft.

2.  If people can vote and serve in the military at age 18–the most important civic responsibilities that we have–how can they be denied the right to do other things that the average citizen can do?

Now the best answer to this, I think, is that the Twenty-First Amendment gives states special autonomy when it comes to the regulation of alcohol.  As a result, they can follow a different age rule than what is used for voting.  That issue is complicated by the fact that Congress used its Spending Clause authority to strong-arm the states to change their drinking ages.  (Perhaps South Dakota v. Dole should have paid more attention to this issue).

There is a federal statute, though, holding that you may not buy a handgun until you are 21.  Is that law suspect given that (a) Heller holds that there is a limited constitutional right to own a gun to protect your home and (b) the right to own a gun may follow a fortiori from voting?

Why do I bring up these points?  First, because I’m wondering if there is a good article about the original understanding of the Twenty-Sixth Amendment.  Second, when should a constitutional text be read broadly (the Fourteenth Amendment) and when should it read narrowly? This is a question that Amar’s book raises for all thoughtful readers.

You may also like...

15 Responses

  1. Guest says:

    I am about to publish an online piece in the Texas Law Review arguing that the Twenty-Sixth Amendment cannot be read to protect civil rights (including the right to drink and the right to own a gun) from discrimination on the basis of age. Here is an excerpt of the current draft that is relevant to your question:

    “The Twenty-Sixth Amendment cannot be read as extending the protections of the Fourteenth Amendment to age, because the enactment history of the Twenty-Sixth Amendment directly contradicts such a reading. The statutory precursor of the Twenty-Sixth Amendment, Title III of the Voting Rights Act renewal of 1970 (“Title III”), was an attempt by Congress to use its Fourteenth Amendment enforcement powers to lower the national voting age. The Supreme Court rejected Title III as unconstitutional in Oregon v. Mitchell, reasoning that age discrimination – unlike race discrimination – does not give rise to a congressional power to preempt state laws. The Twenty-Sixth Amendment overrode the Supreme Court’s Mitchell opinion by prohibiting age discrimination in voting rights, and empowering Congress to enforce that prohibition. Such a narrow amendment cannot plausibly be read as rejecting the Supreme Court’s much broader constitutional finding – rendered mere months before the Amendment’s ratification – that age discrimination does not merit heightened scrutiny under the Fourteenth Amendment. The debates over the Twenty-Sixth Amendment focused exclusively on the reasons for expanding political rights to a previously disenfranchised group, and not, as with the debates over the Nineteenth Amendment, on the need for that group to achieve full social equality. Furthermore, in the floor debates on the Twenty-Sixth Amendment, Congressman James Howard proposed a change in wording that would have lowered the national age of majority to eighteen for all purposes. This proposal was rejected, as were several similar state proposals during the Amendment’s ratification. Thus the authors and ratifiers of the Twenty-Sixth Amendment recognized that it was fully consistent with other forms of age-based discrimination.”


  2. Gerard Magliocca says:

    Interesting. I would love to see the draft when it’s ready.

  3. Orin Kerr says:

    If you interpret constitutional provisions as not just prohibiting what they actually prohibit, but also covering things that strike us as somewhat similar in principle to what they actually prohibit, then the Constitution can mean whatever you want it to mean. Just pick the section that is closest to the value you share; say that the thing you don’t like is similar to that section; and poof!, it’s unconstitutional. In my view, the fact that this game is so easy to play suggests that it can’t be a viable method of interpretation.

  4. Ah, but the 26th Amendment came after the 21st Amendment, so to the extent that the two are in conflict, the later-in-time Amendment prevails, or so the argument would go. (The 14th Amendment, for example, trumped several portions of the 1789 Constitution).

  5. EF says:

    Wait, so then because of the 21st Amendment states can discriminate against specific races or genders in the sale of alcohol? That makes little intuitive sense, and conflicts with Craig v. Boren. I would think that all subsequent amendments are subject to the restrictions that came before unless they explicitly repeal them, no? Surely the Fourteenth Amendment did not empower Congress to suspend jury trials for members of the KKK, for example.

  6. Brett Bellmore says:

    I think this demonstrates that there’s a serious problem with reasoning about constitutional provisions without involving what they actually say.

    ” Section 1. The right of citizens of the United States, who are eighteen years of age or older, to vote shall not be denied or abridged by the United States or by any State on account of age.

    Section 2. The Congress shall have the power to enforce this article by appropriate legislation.”

    Seems rather specific to me. It is expressly restricted to the subject of voting, and nothing else. It literally could not be clearer without descending into Pythonesque absurdity. (“The subject of the amendment shall be voting, voting shall be the subject, and drinking is right out…”)

    The answer here is, the amendment doesn’t need to be read broadly or narrowly to rule out your suggestion. It merely needs to be read. At some point you have to let the words have their way, and this is not one of the tough cases.

  7. Gerard Magliocca says:


    I’m just curious. Does that mean that you don’t believe in unwritten rights? That is an instance in which there is no specific constitutional prohibition, but judges reason by analogy from existing prohibitions.

  8. Joe says:

    “If people can vote and serve in the military at age 18–the most important civic responsibilities that we have–how can they be denied the right to do other things that the average citizen can do?”

    That sounds like an Equal Protection Clause claim & giving people the right to vote can affect that analysis (e.g., women given the right to vote suggests they are now recognized as having a greater public role in society, so previous “reasonable” laws to the alternative might be now “unreasonable”).

    The 26A by itself might affect more than “voting” (Amar defines the term broadly, so says it affects jurors “voting”) in some fashion — for instance, maybe, it has some affect on speech and association, such as laws blocking those under 21 access to certain publications that can be said to influence voting. But, expanding it on its own force to drinking does seem a tad much.

  9. Joe says:

    “If you interpret constitutional provisions as not just prohibiting what they actually prohibit, but also covering things that strike us as somewhat similar in principle to what they actually prohibit, then the Constitution can mean whatever you want it to mean.”

    What do they “actually” prohibit? Does the 1A “actually” prohibit Presidents from infringing free speech? What does “somewhat similar” mean? The OP didn’t just take “whatever you want it to mean,” but worked off intent and what is perhaps necessarily related (habeas rights entail various things besides merely bringing a claim, as a recent GITMO district ruling held, citing USSC precedent).

    This is a normal case of finding the right level of specificity. The “whatever you want it to mean” stereotype is a tad unfair.

  10. Orin Kerr says:

    Gerard, the issue here is playing with levels of generality. For any provision of the Constitution, you can always play the level-of-generality game and pick a level high enough to encompass any other law you want to say is forbidden. That doesn’t mean that the most specific level possible is always the correct one. Different people will disagree on what arguments justify raising the level of generality in different circumstances. I’m making a more modest point: To ensure that the text of the Constitution has at least some meaning, I think an argument is needed to justify the act of raising the level of generality.

  11. Gerard Magliocca says:

    I suppose the argument for raising the level of generality is that it’s irrational to prohibit people from drinking when they can vote and serve in the military.

  12. Orin Kerr says:

    Gerard, I don’t see why it’s irrational. Voting is about participating in democracy. Drinking is about enjoying booze, and regulating drinking is about recognizing the risk of dangers to public safety that it may come with the lack of judgment intoxication can bring. They’re pretty different subjects: Indeed, I think we would generally want to discourage their combination.

  13. Gerard Magliocca says:

    Well, I think I agree with you that it’s not irrational in a constitutional sense, though I’m not sure a 21-year-old drinking age is sound policy.

  14. Orin Kerr says:

    I’d go further: I think the 21-year-old drinking age laws are bad policy and should be repealed. But I don’t think they’re unconstitutional.