Are Current State Drinking Limits Unconstitutional?
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.