Spill the Wine—the Out-of-State Wine


Thanks to a case argued by the nonprofit Institute for Justice, a federal judge just overturned New York's law prohibiting the interstate direct shipping of wine into the Empire State. The law had allowed New York wineries to ship within the state and that, the judge noted, was nothing but unconstitutional protectionism.

Said the Hon. Richard Berman of the U.S. District Court for the Southern District of New York:

The evidence here demonstrates, upon summary judgment, that the exceptions to [New York's wine-shipping law] provide an impermissible economic benefit and (protection) to only in-state interests?but also that there are nondiscriminatory alternatives available. Indeed, the Defendants explicitly concede the exceptions were intended to be protectionist.?

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  1. How interesting! I’d just written about this phenomenon yesterday on my own


    Always glad to hear of one more stupid law going down the tubes.

  2. I’m no lawyer, but this ruling seems to violate the 21st amendment:

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 The eighteenth article of amendment to the Constitution of the United States is hereby repealed.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

    In other words, the states were specifically given the right to regulate or prohibit importation of liquors, despite the commerce clause.

    Note: I don’t agree that they should, but just because something’s right or reasonable doesn’t make it constitutional…

    Any lawyers here who know the relevant law?

  3. Hmmm… just read the decision. They get around the 21st by saying that the law was intended as a protectionist measure (which it was) and didn’t affect the “core concerns” intended by the amendment (temperence, etc.) But that seems beside the point. The amendment clealy states that states can make any law they want regarding importation of liquor – this decision seems to say that a judge can overturn a state law if he decides that the legislature had impure thoughts while passing it.

    Now, again, I don’t doubt that the NY legislature DID have impure thoughts (not to mention impure contributions from the liquor distributors in thier pockets) when they passed the law. But do we really want federal judges to make that call? Either work to repeal the state law, or work to modify the 21st amendment – but this shortcut seem like a dangerous precedent to me. This is “judicial activism” at it’s most blatent.

  4. Thanks Nick, and a Toast! to Justice Berman.


  5. The 21st amendment is in constant conflict with the dormant commerce clause. Basically, the states can regulate alcohol importation, so long as they don’t create a discriminatory barrier to trade. The USSC will need to give a final ruling on this though.

  6. Well, trying to reach back to my days as a Con Law student, I see Berman’s ruling as legit. The State of NY could prohibit all of its citizens from selling or consuming alcohol. In that case, no one could ship booze into NY state, and no one in-state could peddle it either.

    But, the State of NY could not, by virtue of the 21st Amendment, ban all non-caucasians from cosuming or selling alcohol. That would be impermissably discriminatory and violative of the 14th Amendment.

    Commerce clause doctrine equally forbids discriminatory laws that benefit NY merchants at the expense of out-of-state merchants. They can pass whatever laws they like that apply equally, but cannot pass laws which apply inequally.

  7. repeal 21st amendment, section 2!

    and of course the best rule would be to reinstate the constitutional barriers to income tax, and bar government from any regulation of business…

  8. Hmm… I can see that, although it could be possible for a law to have a discriminatory effect without necessarily have a discriminatory intent – your “non caucasian” ban would clearly be discriminatory in intent, but a law that forces wine to be sold through wholesalers could conceivable be justified by other reasons – nondiscrimintory in nature. Again, I would say that it is not for judges to disentangle those reasons and start guessing at “intents” hidden in laws that are not in and of themsleves discriminatory – we’ve been down that road before…

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