It’s a MADD, MADD world.
Anyone who’s gone looking for a drink on a road trip knows that alcohol laws vary quite a lot from state to state, with one exception: if you’re under 21, you’re out of luck. Seems kind of strange, right? Why is that the only rule that never changes?
After Prohibition, states all set their own legal drinking ages, but most were 21 (which was the legal voting age at the time). Then in the 1960s and 1970s, three things happened: first, drinking in general slowly rose, passing pre-Prohibition levels. Second, the rise of American car culture brought the new menace of drunk driving. Before, your shitty drinking habits would only do you in. Now, you could easily kill someone else. And third, the 26th Amendment passed, lowering the voting age to 18. A lot of states responded by lowering the drinking age to match. Drunk driving went up precipitously across all age groups during these years, but research showed that the issue was particularly pronounced in younger drivers. Alarmed, people across the country started pushing their states to re-raise the minimum age. In many cases they were successful, but that success created a new issue: young people driving across state lines to drink. Advocacy groups, led by the increasingly influential Mothers Against Drunk Driving, set their sights on a blanket national policy.
The problem was, Congress couldn’t just do that. The 21st Amendment is really clear about states having control over this kind of thing. So they got creative, and wrote a law that said that if a state had a drinking age below 21, it would get docked a bunch of highway money. South Dakota quickly sued (you had to be 21 to get most booze in SD, but if you were 19+ you could buy 3.2 beer). The state claimed a violation of the 21st Amendment and the Taxing and Spending Clause of the Constitution.
I’ll try to make some complex legal arguments as painless as possible here:
Rules about spending are not spelled out in the Constitution. All it says is that Congress can collect taxes to “pay the debts and provide for the common defense and general welfare.” That’s pretty vague. So the courts have had to build up a set of rules over time for how federal tax money can be spent. Dole v. South Dakota became pretty important to this process, clarifying when Congress can put these kinds of conditions on its spending.[i] The court set up five tests:
- Does the condition on the spending support the general welfare?
- Is the condition easily understood?
- Is the condition related to the type of spending? (As in, you probably couldn’t say “raise your drinking age or we’ll cut off funding for low-income housing.”)
- Is the condition coercive – that is, is it so severe that those impacted by it (in this case, states) are forced to accept it?
- Is the end goal (in this case, raising the drinking age) Constitutional?
The law passed every test. The general welfare and clearness tests were pretty straightforward, and the court decided that the punishment (5-10% reduction in highway money) was not so severe that a state couldn’t say no if they really wanted to (that seems debatable to me). Justice O’Connor questioned the relatedness part, but everyone else was okay with it. The fuzziest one was #5, Constitutionality, since again, the 21st Amendment gives states the power to regulate alcohol, not Congress. In a 7-2 split, the court said it was okay. It really gets in the legal weeds here, but basically they said it’s one thing for Congress to make alcohol policy, and another thing for them to influence it. If you want to dig in further than that, do help yourself to the sources list below.
It’s worth noting that the decision had impact way beyond alcohol: any time you hear Congress or a president threaten to take money away from states because of their policies on immigration or abortion or something, these are the kinds of hurdles that action would have to clear.
The US was not, of course, the only country to face a scourge of drunk driving, but few others chose to deal with it by raising their drinking age. A lot of them made the penalties for DWI super high—far higher than ours. A lot of them also made obtaining a license more challenging. Across Europe, you can expect getting a license to take time and money, with hours spent in the classroom and on the road. Given a conflict between cars and alcohol, they chose to restrict access to cars, and we chose to restrict access to alcohol. There’s a lot of cultural baggage attached to that choice.
The law itself has two big old flaws: it’s overbroad (it punishes young people who don’t drink and drive) and underbroad (it doesn’t impact the majority of people who do). Those are the classic characteristics of a bad law; the question is whether the benefit makes it worth it. There’s plenty of evidence that raising the drinking age has substantially lowered drunk driving crashes in the 18-20 age range, but could that have happened through better education and enforcement, without stooping to prohibition? And what does that prohibition do to young people’s relationship to alcohol? Does it contribute to problems like binge drinking? For those who think so, the argument kind of mirrors one on sex ed: instead of banning and punishing, we should try to foster a healthy relationship with something that is inevitably going to be part of young peoples’ lives. It’s compelling to think about, but the likelihood of anything changing is slim. For one thing, once we turn 21, most of lose any real motivation to push for a change. More broadly though, teaching young people to have a “healthy relationship” with alcohol would require a wholesale cultural shift. We’ve never really had a healthy relationship with alcohol in this country. Our puritan blinders on the subject prevent us from even seeing it as an option. Perhaps given that reality, the universal minimum drinking age is the best we can do. Certainly the drop in deaths achieved through all the changes of the 80s and 90s (including education, enforcement, better car safety, and yes, the minimum drinking age) should be celebrated.
[i] Dole is Elizabeth Dole, the Secretary of Transportation at the time.
Maveety, Nancy. “Glass and Gavel: the US Supreme Court and Alcohol.” Rowman & Littlefield, Lanham: 2019
Wood III, Patrick H. “Constitutional Law: National Minimum Drinking Age – South Dakota v. Dole, 107 S. Ct. 2793 (1987).” Harvard Journal of Law and Public Policy 11, no. 2 (Spring 1988): 569-594
Toomey, Traci L. et al. “The age-21 minimum legal drinking age: a case study linking past and current debates.” Addiction, vol. 104, iss. 12 (December 2009): 1958-1965
Vox. “Why the US Drinking Age is 21.” https://www.youtube.com/watch?v=9aWYJugVTs4