Judging from yesterday's oral arguments, things are not looking good for bans on direct interstate wine shipments. Several justices were openly skeptical of the position that the 21st Amendment allows protectonism and the claim that the bans in Michigan and New York could be justified on other grounds. In what looks like a sign of desperation, Michigan's solicitor general urged the Supreme Court to overrule its 1984 decision rejecting a Hawaii excise tax that discriminated against alcoholic beverages from other states. "If you can't grant a tax exemption," said Justice John Paul Stevens, "it seems to me a fortiori that you can't prohibit importation."
Those who are still unpersuaded by the constitutional (as opposed to the libertarian) case against the shipment bans may want to have a look at George Mason law professor Todd Zywicki's paper on the intent of the 21st Amendment, which a reader cited the other day in a Hit & Run comment. "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," Zywicki writes. "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."