Grape Divide

Tomorrow the Supreme Court will hear arguments for and against bans on direct interstate wine shipments. The main constitutional question is whether the 21st Amendment, which repealed Prohibition and gave states special authority to regulate sales of alcoholic beverages, permits bans that discriminate against out-of-state wineries–the sort of protectionism that would otherwise be forbidden by the Commerce Clause. The U.S. Court of Appeals for the 2nd Circuit, upholding New York's shipment ban, said it does. The 6th Circuit, overturning Michigan's ban, came to the opposite conclusion.

The arguments in favor of the bans as legitimate public safety measures are pretty thin. New York, for example, says residents are forbidden to order wine from out-of-state sources to prevent minors from buying alcohol. You'd think such a concern would apply equally to in-state wineries, which are nevertheless allowed to ship directly to consumers. In any case, it's not very plausible that a teenager looking for a buzz would go to the trouble of ordering, say, a $40 Cabernet from California, using his parents' credit card number for the purchase and hoping they won't notice; waiting for delivery and arranging to be there, with no adults around, when it happens; and signing for the delivery while presenting an ID showing he is 21 or older. The Institute for Justice, which represents a Virginia vintner challenging New York's ban, notes:

The relevant numbers produced by the State of New York in defense of its ban on direct shipments are 16,000 and zero. The first is the number of reported complaints of underage access through heavily regulated retail stores over a five-year period. The second is the number of complaints of underage access through direct shipping outside the sting context over that same period.