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 The main constitutional question is whether the 21st Amendment, which repealed Prohibition and gave states special authority to regulate sales of alcoholic beverages, permits bans that discriminate against out-of-state wineries–the sort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.

NEXT: Trans-Fatheads

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  1. The arguments against the constitutionality of the state laws here have always struck me as thin and convoluted. The 21st amendment’s language is pretty darned definitive here: The importation into any state for delivery therein of intoxicating liquors in violation of the laws thereof is prohibited. State laws, however silly, control interstate shipment of alcohol.

    Much as I may dislike such state laws — they are without question unjustified and silly protectionism — the Constitution is very clear that state laws can control interstate commerce in booze. That’s the compromise inherent in the 21st amendment.

    The IJ’s stretch here — that 21 somehow empowers one sort of state law (prohibition) but not other sorts (protectionism) — is simply unrelated to the text and clear meaning of the 21st amendment. Appeal to the history and philosphy of the drafters all you want, you can’t get around the fact of the text. For better or worse, state alcohol policy is a political, legislative matter, not a constitutional one.

  2. “The arguments in favor of the bans as legitimate public safety measures are pretty thin.”

    The wisdom of the laws are not the issue. The issue is “who decides,” and the language of the 21st Amendment.

    Surely, you aren’t arguing that the court engage in activism, and ignore the questions of federalism and original intent, in order to get the outcome you want!

  3. Writing of court cases, “Don’t Ask, Don’t Tell” now is under attack; hoorah!

  4. As a supporter of IJ, let me step in. I don’t think this is a 21st amendment issue, but instead a Commerce Clause one. Congress has the authority to make regular, commerce among the several States. When one state bans imports in favor of in-state production, trade is no longer regular, and Congress has the power to make it regular, or similar.

    This happens frequently with tax incentives, and routinely the in-state preference is found to be in violation of the Constitution.

    What I haven’t seen addressed, is that while Congress has the authority to make regular such trade, it is the judicial branch that is making such trade regular. This supreme Court could rule that it is up to Congress to fix this issue.

  5. Ayatollah Usoe, the entire point of section 2 of the 21st amendment is that it overrides the commerce clause. If it didn’t override the commerce clause, it would have no effect.

  6. …and, Usoe, even if Sec. 2 of the 21st did not override the commerce clause, the right of Congress to regulate interstate commerce would allow Congress, not the federal courts, to strike down state laws about wine importation.

  7. joe,

    No. The Courts have struck down many state laws which violate the ICC; there are simply areas where the states cannot go, whether the Congress has gone there or not, or has said anything about the state action or not (see, for example, the “dormant commerce clause”).

  8. joe,

    Indeed, there is some debate as to whether the Congress can delegate its commerce power to the states.

  9. Grant C,
    I disagree. I don’t see it as a stretch at all to conclude, “that 21 somehow empowers one sort of state law (prohibition) but not other sorts (protectionism)”. 21 grants power to the States to regulate alcohol internally, but it is not an exemption to equal protection.

    The point of this case, is that some states allow direct sales of wine from within the state, but not from without. Such laws are purely protectionist and have no value in their ability to regulate the sale and consumption of alcohol. Therefore, it is proper that they be considered under the commerce clause and not the 21st amendment.

    I will be absolutely STUNNED SHITLESS if the SCOTUS does the right thing and restores the principal of federalism. Interstate wine is an excellent precedent to demonstrate the proper application of federal regulation. Medical marijuana is an excellent precedent to demonstrate the limits of federal power. In both cases I’m predicting that the SCOTUS will indulge their proclivity for Puritanism over the principal of federalism.

  10. I don’t know if this will make the debate more clear or even less clear, but here’s 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.

    Section 3.
    This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.

    Section 2 is the relevant part. Importation into a state for “delivery or use therein…in violation of the laws thereof” is illegal.

    Now, you can look at this 2 ways. The first is to say that wine is wine, and if there’s no law against an adult drinking wine under some particular circumstances (assuming the wine is consumed at home or in a licensed establishment or whatever, etc. etc.) then bringing in a bottle of wine from out of state for those purposes is not illegal.

    The second is to say that whether or not wine is wine is itself a question of law, and that (however absurd it might be) there’s nothing in the 21st amendment that says a state can’t draw such distinctions.

    We can fight all day over which is correct, but that seems to be the issue. One could say that when there are 2 equally reasonable interpretations of the Constitution that the section in question is evidently vague (otherwise there’d only be one reasonable interpretation). When it’s vague, you can’t appeal to the document itself, you have to go by the traditional understanding (i.e. precedent) so that if the law is not perfect it’s at least consistent.

    Does anybody know what the precedents are?

    And if there are no precedents, then one must be set, and the most important thing is that the judges pick one of the 2 equally reasonable interpretations rather than picking a third one that is completely unreasonable.

    And sadly, when dealing with a government body you can’t rule out the possibility that they’ll pick the third and unreasonable option.

  11. Or, I suppose one could resolve the issue by asking which interpretation is more in keeping with the “spirit” of the rest of the Constitution. My take is that while the free flow of interstate commerce is obviously an important goal enshrined in the Constitution, federalism is an even more ubiquitous theme. So, the federalist interpretation (states can regulate or ban wine from out of state) is the more correct interpretation, or at least the more consistent one, even though I personally loathe the result.

  12. If we want to consider the intent of Section 2 of the 21st amendement, that’s rather clear as well.

    The objective of Section 2 was to address the primary grievance that made prohibition a national issue: The fact that individual states couldn’t set their own liquor laws because the Supreme Court of that era kept letting interstate commerce bring alcohol into the state (alcohol was regarded as being in interstate commerce if it was sold in an unopened packages from out-of-state, hence the term “package store.”).

    The objective of Section 2, then, was to ensure that this situation did not arise again, by exempting alcohol from the Commerce clause and instead specifying that, in the matter of alcohol, state law governed and federal law simply extended the state’s arm.

    Thus, the history of Section 2 suggests that it was meant to give force to the sorts of laws that states attempted to pass prior to prohibition and that we knocked down by the courts.

    And this is where it comes to rest: The very laws that states tried unsuccessfully before prohibition treated in-state and out-of-state alcohol differently. Consider for instance the dispensary system that several states used: In effect, these states entirely socialized the alcohol importation business, while still allowing local sales direct from local manufacturers. This is exactly the sort of stupid law that Section 2 was intended to permit.

    To claim that in-state versus out-of-state discrimination is a modern, post-21 invention is inaccurate. To claim that the 21st amendment was meant to legitimate some of the pre-prohibition state laws but not others is equally inaccurate. So the argument from original intent is just as compelling as the text: Origin discrimination preceded 21, and was given effect by Section 2.

  13. For a very detailed overview of why IJ should win this case, read this paper by Todd Zywicki, who is a member of the Conspiracy (Volokh, that is…)

  14. Clearly, we won’t get to the bottom of this until we discover what the emanations of the penumbra of the dormant Commerce Clause are.

  15. This is exactly the sort of stupid law that Section 2 was intended to permit.

    Nonsense! The Zywicki article that MP links to says it well:
    “Section 2 of the Amendment constitutionalized certain federal laws that allowed the States to enforce their police power on equal terms against alcohol shipped in interstate commerce as against alcohol manufactured or sold within the State. Section 2’s purpose was to nullify a line of Supreme Court decisions that compelled some States to “reverse discriminate” in favor of out-of-state vendors. As a result, the 21st Amendment removed the federal government from meddling in local affairs, but did not cede a novel and unnecessary power to the States to meddle in the federal government’s traditional control over interstate commerce.” emphisis mine

    Prior to the 18th the CC prevented States from becoming dry. The 21st made an exception to the CC to allow for dry States. However, in no way did it cede “a novel and unnecessary power” that permitted unequal treatment under the law between in state and out of state vendors. The fact that States enacted unconstitutional laws prior to the 18th, does not (necessarily) make them constitutional post 21.

  16. I go back and forth on this. I think Zywicki’s comment at the end may have swayed me in favor of IJ’s position:

    In other words, the 21st Amendment enabled dry States to remain dry if they so chose, but it did not empower wet states to engage in economic warfare against the products of other wet States.

    If the second clause of the 21st amendment exists to protect the “right” of a state to go dry (and yes, I know, states don’t have rights, only people, but that’s why I put the word “right” in quotes, so bear with me here) that doesn’t mean it protects the “right” of dry states to engage in protectionism. There’s more to federalism than upholding any law ever passed by a state. (And I might note that Zywicki is no slouch when it comes to federalism.)

    Still, I’m willing to be persuaded back the other way.

  17. I just finished a nice bottle of 2001 Osborne Solaz and I still don’t understand all this…

  18. not a lawyer,
    I’m not a lawyer, thoreau isn’t a lawyer, which is why he was able to cut through the legaleze and arrive at the correct answer.

  19. Ruthless-

    Which of my answers was right? I’m still going back and forth.

    Or is the correct answer a Schrodinger’s cat-like superposition? ;->

    |optimum policy> = (|protectionism>+|no protectionism>)/sqrt(2)

  20. “that doesn’t mean it protects the “right” of dry states to engage in protectionism.”

  21. If you’re interested in the secular take on this issue check out The 30 Second Wine Advisor by clicking on TWC below.

  22. I’m as opposed to drug and alcohol prohibition as anyone else, but I think the 21st Amendment is very clear on this score. As much as I like IJ, they’re wrong on this one.

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