What is the legal justification for the US drinking age of 21?

February 6, 2007 11:20 AM

In light of this NYC graffitti law being struck down what is the legal justification for the US drinking age of 21?

I realize their isn't a free speech angle in the consumption of alcohol. However aren't there laws about equal protection and age discrimination?

Bonus question: are there other activities in the US that are only legal for a subset of age of majority members besides eligibility of becoming President?

PS: I know the political (college kids don't vote and their parents do), moral (drinking is bad) and societal (it's for the children) arguments. I'm just interested in the reasoning the drinking age hasn't been reduced to the age of majority through legal action. IE: Why is the status quo constitutional?

posted by Mitheral to law & government (37 comments total)

The Rational Basis Test.
posted by ND¢ at 11:28 AM on February 6, 2007

Not an answer, but the drinking age of 21 isn't a "US" thing, it's a matter of state laws. The states all raised the drinking age to 21 (it was 18 in many) when the fed threatened to cut off highway dollars. Or so I've heard.
posted by These Premises Are Alarmed at 11:28 AM on February 6, 2007

It's because of the federal government. Any state has the right to change the drinking age, but the feds will remove highway funding for any state that lowers the drinking age under 21. Keeping it a state's rights issue also makes it difficult for any one state to lower the age even if they can do without highway funding, since they will be accused of encouraging people from neighboring states to cross state lines to purchase alcohol (probably increasing drunk driving too).
posted by SBMike at 11:31 AM on February 6, 2007

Speaking of highways - Other activities only legal for a subset:

1. Driving
2. Gambling
3. Renting a car

Ok so only 1 and 3 correspond to highways.
posted by spicynuts at 11:33 AM on February 6, 2007

This question has been treated in detail in two court cases. The first case challenged, in federal court, the constitutionality of Michigan's increase in the drinking age, one of the early states to raise the legal age back to 21 (Guy, 1978). The court ruled, on the basis of scientific evidence that linked lower drinking ages to increased traffic crash involvement among youth, that the drinking-age discrimination was reasonably related to the state objective of reducing highway crashes. Thus the higher drinking age withstood the constitutional challenge on three key legal issues: (1) drinking alcohol is not a "fundamental" right guaranteed by the Constitution, (2) age is not inherently a "suspect" criteria for discrimination (in contrast to race or ethnicity, for example) and (3) using the drinking age to prevent highway crashes has a "rational basis" in available scientific evidence. The court mentioned additional reasons that a higher drinking age is not unconstitutional. The higher drinking age does not cause a permanent disability, but is only a temporary postponement of a specific behavior for the young person's own protection. Furthermore, states have broad powers to regulate the distribution and use of beverage alcohol under the Twenty-first Amendment, which ended Prohibition. Therefore, the drinking age, like other alcohol-control regulations, has a "strong presumption of validity," according to the court.

More recently, the state of Louisiana's age-21 [Minimum Legal Drinking Age] MLDA was challenged in court on the premise that it violated the state's constitutional law regarding age discrimination. Louisiana's State Supreme Court concluded, however, that "statutes establishing the minimum drinking age at a level higher than the age of majority are not arbitrary because they substantially further the appropriate governmental purpose of improving highway safety, and thus are constitutional" (Manuel vs State of Louisiana, 1996). In other words, because the age-21 MLDA was based on empirical evidence that the law saved lives, the court decided that it was not an arbitrary law and thus did not violate Louisiana's constitution.

ALEXANDER C. WAGENAAR, Ph.D.,† andTRACI L. TOOMEY, Ph.D. Effects of Minimum Drinking Age Laws: Review and Analyses of the Literature from 1960 to 2000 (J. Stud. Alcohol, Supplement No. 14: 206-225, 2002)
posted by ND¢ at 11:40 AM on February 6, 2007 [1 favorite]

spicynuts: The bonus question was, "are there other activities in the US that are only legal for a subset of age of majority members besides eligibility of becoming President?" (emphasis mine). I think the legal majority in the US is 18, so 1 and 2 don't apply in many states (where the driving age is 16 and the gambling age varies by state). I don't know of any legal limits on car rentals; although many firms do limit car rentals to 21 or even 25 and over, there are certainly places that will rent out to an 18 year old, for a hefty fee.
posted by muddgirl at 11:46 AM on February 6, 2007

There is no one legal justification for the drinking age of 21. In fact there is no such as thing as a "US drinking age"...

Constitutionally there is nothing at the federal level saying that you have to be age X before you can do X so it's left up to the states. (See also, age of consent, driving privileges, employment age, etc.) The perceived nationwide drinking age is really a hodgepodge of state to state legislation which all have their own diverse backers.

In some states groups like MADD exert pressure on the state law makers to raise the age and keep it high. In other states religious groups may play a role in the debate.

That said I know that the federal government strong arms the states with highway funds to keep them in line with both drinking age limits and DUI enforcement. (Blood alcohol limits have been lowered time and again over the past few decades as most states scramble for highway funds.)

Historically the drinking age was either nonexistent or low - usually around 18 and maybe less in some places. I think Wisconsin still has the 18 or 19 y.o. drinking age.

As an aside, it wasn't too long ago that the voting age was 21 also, but was changed during Vietnam - the rational being that if you're old enough to be drafted (18) you're old enough to have a say in government.

Some would argue that if you're old enough to vote, enlist, etc, you should be allowed to drink. I can kind of see that rational, but I'm personally grateful that I wasn't allowed to drink at 18... I did enough stupid stuff sober back then...

Why is the status quo constitutional?

It's probably not, and I invite any 18 year olds out there to coble together a fund and sue their state government with the goal of getting it appealed to the SCOTUS.

It is one of those things though where it's hard to prove the damage to the individual outweighs the damage to the larger society. Individually it maybe discrimination, but common sense says to anyone older than about 30 that no way in hell should 18-year-olds be allowed to drink...

(There have been times when I've been in bars with 21-year-olds where I wished the drinking age was 28.)
posted by wfrgms at 11:53 AM on February 6, 2007

It was Nancy Reagan's initiative to get the legislation passed that required that federal highway funding be cut off for any state with a legal drinking age of lower than 21. So when American college kids die in drinking binges because they haven't had the opportunity to learn to drink responsibly before leaving home, you can partly blame that puritanical bitch for their deaths.
posted by Dasein at 11:55 AM on February 6, 2007 [3 favorites]

Bonus question: are there other activities in the US that are only legal for a subset of age of majority members besides eligibility of becoming President?

One must be 25 to be a U.S. representative, and 30 to be a senator. Like the age limitation on becoming a President, these are explicitly stated in the Constitution.
posted by DevilsAdvocate at 11:56 AM on February 6, 2007

As mentioned above, age-based classification is not subject to heightened scrutiny in an Equal Protection analysis. It's fairly easy for a state law to pass the Rational Basis test. Just as an illustration of the importance of getting heightened scrutiny in an Equal Protection analysis, have a look at Craig v. Boren. At one time, Oklahoma had a law which set different drinking ages on the basis of gender (women could drink 3.2 beer at 18 while men had to wait until they were 21). The law was overturned because the law's gender-based classification failed Intermediate Scrutiny.
On the flip side, occasionally some laws do fail the Rational Basis test: Romer v Evans is an example of such an occasion.
posted by Dr. Zira at 11:58 AM on February 6, 2007 [1 favorite]

Well, unlike speech you don't have a "right" to have alcohol, the 21st amendment gives the states the right to regulate (which ended prohibition) gives the states the right to regulate liquor as they see fit, or at least bans the sale or importation of alcohol into states that don't want it.

The drinking age is set by the states, although they are coerced by the federal government by denying highway funds for states with a limit lower then 21.
posted by delmoi at 11:59 AM on February 6, 2007

I think Wisconsin still has the 18 or 19 y.o. drinking age.

No, Wisconsin is 21, although IIRC it was the last state to raise it.
posted by DevilsAdvocate at 12:00 PM on February 6, 2007

In South Dakota v. Dole, the U.S. Supreme Court decided that Congress did not exceed its spending powers nor did it violate the 21st Amendment by passing legislation conditioning the award of federal highway funds on the states' adoption of a uniform minimum drinking age.

In 1984, Congress passed a law that withheld a certain percentage of federal funds to any state with a drinking age lower than 21. South Dakota had a drinking age of 19 for "low-point beer" and the state sued to force the federal government to pay the full amount of federal highway funds.

The U.S. Secretary of Transportation at the time was Elizabeth Dole. The Court decided, in part, that South Dakota had the power to keep its law the same, but at a cost. In a 7-to-2 decision, the Court held that Congress, acting indirectly to encourage uniformity in states' drinking ages, was within constitutional bounds. The Court found that the legislation was in pursuit of "the general welfare" and that the means chosen to do so were reasonable.

The Court also held that the 21st Amendment's limitations on spending power were not prohibitions on congressional attempts to achieve federal objectives indirectly, nor was the 5 percent loss of highway funds unduly coercive.

posted by matteo at 12:02 PM on February 6, 2007

Part of the reason there is a federally-mandated drinking age is the issue of "blood borders" where teens would drive over a state line on friday nights to get loaded where the drinking age is lower. There would be a resulting huge number of DUI-related deaths. From this page:

Was raising the drinking age effective?

Nobody really knows! That question is still being debated to this day. The facts show that there are less people dying from drunk driving accidents today than in the mid 80's, but it cannot definitely be contributed to the higher drinking age.

It still happens over international borders (e.g. Detroit-Windsor) but presumably teens have enough sense to have a designated driver to cross an international border.
posted by GuyZero at 12:03 PM on February 6, 2007

Interesting ND¢, I wonder if a valid challenge could be made if one was to forgo having a driver's license. Because a non drivers state ID is usually mutually exclusive with driver's licenses (IE: you can't have both at the same time) a case could be made that holders of state non driver IDs should be able to purchase alcohol even if they are 18-21 years of age.

And yes I know it is state laws imposed because of highway funding, that just pushes the legislation down one level. State laws are still challengable under the federal constitution aren't they?

I understand that drinking isn't an enshrined right I just didn't know how legislatures could get away with impose special regulations on an age based class (ignoring the special status of minors). It seems the Rational Basis test is what allows. If the political will was there to prevent 35-65 year olds from purchasing alcohol (on the basis that that age range runs most companies and constitutes the bulk of doctors and so they shouldn't ever be impaired) the law would in theory be upheld.
posted by Mitheral at 12:07 PM on February 6, 2007

Wisconsin was not the last state to raise the legal drinking age to 21, Wyoming was the last state to raise the legal drinking age in 1988. I think that if an eighteen year old can vote or go to war for this country that the drinking age should be 18.
posted by ganzhimself at 12:13 PM on February 6, 2007

Other activities banned for the young:

Smoking (at least buying cigarettes)

Getting married (state ages differ)

Entering into certain legal contracts

Voting
posted by GaelFC at 12:16 PM on February 6, 2007

I gave up on trying to figure out if "the law" made sense half way through law school. There is no rational basis for anything. "The law" is just what a bunch of old men came up with as rules that they decided they wanted other people to follow. Then those old men died or lost elections and the rules just stayed there because of inertia. You should see people's interactions with state or federal agencies. The government, which is really just underpaid undereducated people with a variety of motives, acts like it has never heard of the laws that govern it. People just do stuff, and "the law" be damned. More than that, I would say that 90% of laws aren't enforced at all. The other 10% are like the rules against traveling in the NBA. They are only enforced if you break them flagrantly, but if you actually tried to follow them to the letter at all times, you couldn't compete at all. You may want to give up trying to figure out the justification of "the law". It doesn't have any justification, and it doesn't have to. They have guns and prisons and cops and if they say you can or can't do something, then you can or can't do it as long as they are paying attention.
posted by ND¢ at 12:25 PM on February 6, 2007 [5 favorites]

but common sense says to anyone older than about 30 that no way in hell should 18-year-olds be allowed to drink...

The vast majority of countries in the world have lower drinking ages than we do, and also fewer problems with drinking. In fact, there are only four countries worldwide where the drinking age is over 18, and the US is the only one where it's as high as 21.

So much for "common sense".
posted by vorfeed at 12:33 PM on February 6, 2007

I'm surprised that no one here has mentioned the 21st Amendment.

In 1917 the 18th Amendment was ratified and banned all sale of beverage alcohol in the US.

By the early 1930's it was clear that Prohibition was both a failure and a mistake, and the 21st Amendment was ratified. It repealed the 18th Amendment, and it gave the states full legal control over sales of liquor within their own territories.

The Constitution is built in layers, and any time that the original Constitution and an amendment come into conflict, or two amendments come into conflict, the later one wins. Since the 21st Amendment came after the Constitution proper, and after the 14th Amendment, then "equal protection" doesn't apply to liquor laws.

So to address the OP's direct question, the "legal justification" for the drinking age being set to 21 is that the 21st Amendment gives the states full power to choose a drinking age, and to control every other aspect of alcohol sales. They've all settled on 21. As mentioned, it used to be 18 or 19 in some states but the Feds have used highway funding to "apply pressure" on the states to standardize on 21.

It's probably a good thing that it's standardized. There used to be a huge rate of fatal car accidents on this 7 mile stretch of highway, about 30 years ago. That's because the drinking age in Washington was 21, but it was 19 in Idaho. So students from Washington State University used to drive to Moscow, get drunk, and try to drive back again. Some of them didn't make it.
posted by Steven C. Den Beste at 12:34 PM on February 6, 2007

Ah; I didn't see that Delmoi has mentioned the 21st Amendment. Apologies.

But he's right: because of the 21st Amendment, consumption of alcohol is not a protected right. And in fact there are still places in the US which are "dry". Jack Daniels Distillery used to advertise that the county where their bourbon was made was "dry", recognizing the irony of it. (I believe that county now permits alcohol sales.)
posted by Steven C. Den Beste at 12:49 PM on February 6, 2007

It seems that the entire justification for this law (no drinking until you're 21) is based on an assumption that young people will often break another law (no driving when you've been drinking). I think it's a fair assumption, but it seems a little fishy to me. If you don't want 18-20-year-olds driving drunk, you've already got a law that's supposed to prevent it. Is there anything in our legal system that says you can't make something illegal in two different ways?
posted by vytae at 1:06 PM on February 6, 2007

(1) Laws are examined based on standards of reviewing them for constitutionality.
(2) Although drinking-age laws are state laws, the 14th Amendment applies the Bill of Rights to the States. It also has it's own Equal Protection clause applied to the states.
(3) Equal protection claims are reviewed under a rational basis--that is, if the government can show a rational basis for enacting the law (here, to protect against car accidents), the law is constitutional. There is a strong presumption that the law is valid.
(4) First Amendment issues are usually reviewed under differing levels of analysis--here, the law is probably "content neutral" in that it does not regulate what the content of the speech is just the right to engage in the speech (the artists may have argued differently. Content neutral laws are analyzed under "intermediate scrutiny" that is they must (a) serve a substantial government interest that is (b) unrelated to the content of the speech; (c) the law must be narrowly tailored to meet its objective without shutting out too much other speech; (d) and the restrictions must leave alternative channels for communication.

Thus the standards are different and higher for First Amendment issues.

What Steven C. Den Beste said is so wrong I can't even begin to explain it other than to say that the fact that the 21st Amendment came after the 14th is immaterial. Equal Protection of the laws is applied to the states by the 14th Amendment itself. It refers to any law, not just those passed after it existed. It does not matter if that law applies to Telecom companies or your pimple-faced brother. Under his analysis, African-American could be forbidden to drink on account of their race.

Furthermore, there is no constitutional right to drink. The 21st Amendment did not create a special right to drink, it merely repealed an amendment which limited the right of the states to legislate in an area in which it previously had the power to do so.

Disclaimer: Drinkers and Taggers, I am not your lawyer.
posted by Ironmouth at 1:15 PM on February 6, 2007 [1 favorite]

Since the 21st Amendment came after the Constitution proper, and after the 14th Amendment, then "equal protection" doesn't apply to liquor laws.

Steven C. Den Beste: You're just referring to the liquor laws based on age-based classifications right (and incorporation of 5th Amendment DP analysis)? Because I read Craig to mean that the 14th Amendment EP clause still applies to liquor laws based upon other classifications despite the 21st Amendment. Am I mistaken? Otherwise, wouldn't that mean that a state could pass a law stating that RaceX could purchase/consume liquor differently thatn RaceY?
posted by Dr. Zira at 1:16 PM on February 6, 2007

Dr. Zira,

Exactly. The 14th Amendment applies to any and all laws passed by all bodies other than the Federal Government or D.C. Not sure of its applicability to Puerto Rico, or other overseas territories.
posted by Ironmouth at 1:24 PM on February 6, 2007

The 14th Amendment applies to any law passed before and after it was ratified. It doesn't apply to Amendments passed after it was ratified, and I stand by my statement that in any case where two amendments come into conflict, the later one wins.
posted by Steven C. Den Beste at 2:02 PM on February 6, 2007

Otherwise, wouldn't that mean that a state could pass a law stating that RaceX could purchase/consume liquor differently thatn RaceY?

An interesting question, and you may be right. But not, I think, for the reason you think.

A later constitutional amendment could override the 14th Amendment in whole or in part, or only in particular ways. A new constitutional amendment could repeal the 13th Amendment and make slavery legal again. The 21st Amendment did repeal the 18th Amendment. Amendments have that power; it's a question of whether we actually choose to do such things.

It didn't happen, but for a while in the 1960's and 1970's there was noise about passing an amendment to prevent the courts from ordering school bussing. School Bussing was ordered by the courts in some places mainly based on 14th Amendment "equal protection" grounds, but if a later amendment had passed preventing such a thing, it would have taken precedence over the 14th Amendment in that area.

So the question in this case is whether the 21st Amendment actually does grant the states arbitrary ability to discriminate in liquor laws, and that's what we got courts for. I suspect the answer is "no", but to really find that out you'd have to go back and consider "original intent" by consulting the Congressional Record regarding the debate of the 21st Amendment when it was proposed.

The point being that it could have permitted race discrimination; but I suspect the courts would find that it does not actually do so.
posted by Steven C. Den Beste at 2:12 PM on February 6, 2007

Steven, your analysis is wrong because there is no conflict between the two amendments. Legal analysis is based on the actual words of the document being analyzed.

The 21st Amendment did not "grant" the states the ability to legislate on matters of alcohol. It merely repealed the 18th Amendment. Prior to that Amendment and after its repeal, the states possessed the right to legislate on any matter not prohibited by the Constitution. It is called the "Police Power." Here's the text.

Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2. 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. [Section 3 redacted]

Not a word in the text indicates that the Equal Protection Clause of the 14th Amendment is repealed. Nor is it repealed by implication. Nor does it grant the states the right to make any legislation in conflict with prior amendments to the constitution. It merely removed a prior restraint on that power. Thus, there is no "conflict" between the two Amendments.

Specifically, the 14th's equal protection clause prohibits states from denying "to any person within its jurisdiction the equal protection of the laws." Since a law against drinking is a law, all persons under it must be equally protected. The fact that a later Amendment deals with some laws relating to a particular area of legislation does not mean that it wholly preempts all legislation under that area. Another way of saying this is that the 14th deals with the process of passing laws and the application of those laws to persons, not to any specific area of law.

Of course a later amendment could override any of these amendments. However, it must specifically do so. The 21st Amendment didn't repeal the equal protection clause of the 14th Amendment for all laws involving alcohol. It merely repealed the 18th Amendment and added a superfluous (read non-self executing) clause prohibiting violation of the laws of a state regarding alcoholic beverages.

Disclaimer, I'm not your lawyer.
posted by Ironmouth at 2:40 PM on February 6, 2007

So the question in this case is whether the 21st Amendment actually does grant the states arbitrary ability to discriminate in liquor laws, and that's what we got courts for. I suspect the answer is "no", but to really find that out you'd have to go back and consider "original intent" by consulting the Congressional Record regarding the debate of the 21st Amendment when it was proposed.

Alternatively, I could just rely on the Supreme Court to do the work for me, when it said, referring to the 21st Amendment: "...the Court has never recognized sufficient "strength" in the Amendment to defeat an otherwise established claim of invidious discrimination in violation of the Equal Protection Clause."
Craig v. Boren, 429 U.S. 190, 207 (1976).
I'd be curious as to what feat of jurisprudential gymnastics could arrive at a conclusion that the 21st rendered EP inapplicable to liquor laws after that holding.
posted by Dr. Zira at 8:03 PM on February 6, 2007

In many states (such as Virginia) it's not illegal for people under 21 to drink if their parents give them the drinks.
posted by emelenjr at 8:21 PM on February 6, 2007

Note also that when the plain intent of the enactment is clear on its face, legislative history is not consulted.
posted by Ironmouth at 8:50 PM on February 6, 2007

Since the 21st Amendment came after the Constitution proper, and after the 14th Amendment, then "equal protection" doesn't apply to liquor laws.

I actually asked this to a real constitutional law professor today after reading it and he laughed and said that didn't make any sense. No joke, I really did ask.
posted by Falconetti at 9:02 PM on February 6, 2007

I think Wisconsin still has the 18 or 19 y.o. drinking age.

It doesn't. But when I was in college, my friends from there told me that you can drink in a bar or restaurant if you're with a parent or guardian. They were actually shocked that this wasn't the case when their families came to visit them here in Minnesota
posted by deinemutti at 9:13 PM on February 6, 2007

Ironmouth: I stand corrected.
posted by Steven C. Den Beste at 10:23 PM on February 6, 2007

Steven,

That's what AxMeFi is for--but I think Dr. Zira's doing pretty good as well--good luck Dr. 2L.
posted by Ironmouth at 6:45 AM on February 7, 2007

The National Minimum Drinking Age Act of 1984 is the what allows congress to withold Highway funds from states. There is also legislation that requires states to adopt a BAC limit of .08 or lose federal highway funding. WI recently dropped its limit from .10 due to this.

Wisconsin upped the drinking age from 18 to 19 in '83 and from 19 to 21 in '86, but our current governer (formerly the attorney general) wants it lowered to 19 again. We also have a bill to "effectively" allow drinking for those serving the military by changing the fine from $500 to $10.

But when I was in college, my friends from [Wisconsin] told me that you can drink in a bar or restaurant if you're with a parent or guardian.

It's true, and I was shocked to find out this wasn't the case in other states as well. I went to Michigan to look at colleges with my mom and we went to a restaurant/cafe and I asked for an Irish coffee. The waitress asked for my ID and I told her she could have it, but it doesn't say I'm 21. She gave me this bizarre look and said matter-of-factly, "well you can't drink then" and I told her I was with my mom and she said "but you're not 21". I just ended up getting a normal coffee, and when the waitress came back she asked if we were from Wisconsin and said she'd remembered hearing something about being able to drink with your parents there. I have some great memories of going to bars with my parents, even before they let me drink.

Another odd thing is you can drink with your spouse if they are over 21.
posted by nTeleKy at 7:30 AM on February 8, 2007

I'm just following up on this thread and I wanted to say that the discussion between Ironmouth, Dr. Zira, and Steven C. Den Beste is very educational - especially considering I'm in the middle of a conlaw class! Thanks to all of you!
posted by wfrgms at 10:09 PM on February 9, 2007