By Dave Kopel, research director of the Independence Institute & Glenn Harlan Reynolds, professor of law, University of Tennessee. Messrs. Kopel and Reynolds are the coauthors, most recently, of "The Evolving Police Power: Some Observations for a New Century," in the Hastings Constitutional Law Quarterly (2000).
June 5, 2001 1:00 p.m., National Review Online. Also by Kopel: Two hysterical drinking stories: Wire reports about college students and alcohol mixed ridiculous assumptions, sloppy journalism. Rocky Mountain News, Apr. 21, 2002.
We have a confession to make. Both of us have committed the same crime for which Jenna Bush has been accused. Both of us — on scores of occasions — have entered bars or restaurants at the age of 19 and ordered alcoholic beverages.
Unlike Jenna Bush, however, we were never prosecuted or charged with a crime. There were no front-page news stories, no hushed words about possible alcoholism, no calls for our parents to control us.
That, of course, is because we were 19 years old during a more enlightened era, when the legal drinking age was 18 in most places. And the states that we called home were among those that had concluded that people who were old enough to marry, to enter into contracts, to enlist in (or be drafted into) the armed forces, and otherwise function as adults, were also old enough to have a beer.
Not all states felt this way, but that was considered part of federalism — until Liddy Dole, as Secretary of Transportation, "spearheaded" efforts to force states to adopt a uniform drinking age of 21. In response to Dole's "spearheading," Congress enacted a statute withholding federal highway funds from states that failed to raise their drinking age to 21.
South Dakota, which felt that 19 was an appropriate drinking age, sued Dole but lost in the Supreme Court — though Justice O'Connor dissented on the ground that a state's drinking age was not "reasonably related" to highway construction, and that Congress's conditioning of funds was thus unconstitutional.
The theoretical relationship of highway funding to the drinking age was, supposedly, that young people who couldn't drink in one state would drive over the border, get drunk, then drive home and get in an accident. Controlling these "blood borders" was the supposed objective.
But in fact, border issues only matter in a few places, such as the New Jersey/New York/Connecticut area. In much of the rest of the country, states are so large, and border counties so sparsely populated, that border crossings are insignificant.
Besides, even if Congress determined that a nationally uniform drinking age was essential, the better decision would have been a uniform drinking age of 18. Congress, having decided that 18-year-old males should be subject to the heaviest burden to which adults are subject — draft registration for the purpose of potential conscription — should have decided that states may not deny young adults the benefits of status as a legal adult. Similarly, Congress could have made congressional funding for state criminal-justice programs (such as prison programs) contingent on an 18-year-old drinking age. Since every state has determined that 18 year olds can be automatically charged as adults if they commit a crime, the states should not, inconsistently, claim that 18 year olds are children when they want to drink a beer.
The better approach, of course, would have been to leave the issue where it had been for the previous 300 years: at the state level. Regardless of whether the Dole drinking age was constitutional, it certainly showed disrespect to federalism. Dole's national drinking age wasn't really about highway construction. Nor was it about any genuine federal concern. It was mostly about PR. It also drastically expanded the problem of "underage drinking" by, at a stroke, increasing the number of drinkers who were considered "underage." (But that's what legislatures do when they enact "tougher" laws: They create crimes, and thus create criminals, where there were none before.)
President Bush has long championed federalism, and has supported the idea that the federal government should leave issues of state concern to the states. He — and the Republicans in Congress — should repeal the national drinking age and let states make their own decisions on what is fundamentally a local issue.
One of the justifications currently offered for "cracking down" on young adults like Jenna Bush is that, supposedly, young adults frequently engage in "binge drinking." Frightening statistics are trotted out in support of this claim. But in fact, the commonly used definition of "binge drinking" is preposterous. "Binge drinking" is said to occur anytime a woman has at least four drinks, or a man has at least five drinks, over any continuous period of time.
Thus, if a Jewish woman attends a Passover seder, and drinks the ritual four cups of wine, that's "binge drinking." Or if some men get together for a football double-header, and each man drinks a six-pack of Budweiser over the next six hours, that's "binge drinking" — even though neither the Passover women nor the football men are even remotely close to blood-alcohol contents that would make them unfit to drive.
Now let's suppose that somebody actually drinks enough so that their BAC is too high to drive — a woman goes out to dinner with friends and has five glasses of wine over an hour and half. She is (horrors!) drunk. What's wrong with that — as long as she doesn't drive? It's true that some people who get drunk do irresponsible things, like start fights in bars, or drive, or have unprotected sex. But the vast majority of times that people get drunk, none of these things happen.
The persecution of the Bush daughters isn't about safety; it's just an attempt of a neo-puritanical faction of American society to impose its morality on everyone else. The national media, which is so concerned about moral autonomy when abortion rights are under consideration, has been remarkably silent about the right to choose what kinds of food or drink one consumes. It's rather remarkable that the American media would go to the barricades to defend Jenna Bush's right to terminate the life of a fetus without even telling her parents. But if she wants to have a beer, then it's a national scandal.
