I'm STILL Not Drinking Any Merlot!


The Supreme Court has ruled that state bans on interstate wine shipments unduly burden interstate commerce. Raise a glass and toast the two-fisted litigators at the Institute for Justice on a big win. You can read the full decision here.

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  1. *AHEM*

    You forgot the “Fucking”. It’s “I’m STILL Not Drinking Any Fucking Merlot!”

    So, by this language, I can start ordering small batch bourbons, right?

  2. Be curious to see if this would have any effect on the currently pending Raich and Stewart cases.

  3. The decision puts in doubt laws in 24 states that ban out-of-state shipments, although the opinion suggests the laws will be upheld so long as in-state and out-of-state wineries are treated equally.

    As a result, states could choose to let all wineries sell to consumers directly, but could also bar all wineries from doing so.

    Anyone want to hazard a guess as to which way the banning states will go?

  4. Wow. Worst dissent ever.

    I won’t have time to read the decision and both dissents until tonight. It’s on odd combination of Justices on both sides of the decision. In any event TPG, which dissent are you referring to as being the “worst”?

  5. Anyone want to hazard a guess as to which way the banning states will go?

    I think your guess would be incorrect. NY has a pretty large home grown wine industry.

  6. Let’s all get drunk and play pingpong!

  7. These tyrannical, activist judges are again thwarting the will of the people and we WILL NOT TAKE IT ANY MORE! I demand an investigation, and I will not stop until the right of the people of the States of New York and Michigan are reutrned so that they may stick their noses in anybody’s business, any time they want, with or without any good reason! And we’re not going to stop – we’re going to go on, all the way to New Mexico and New Hampshire and Sasketchewan and Putumayo and..hyaurrrrrraaaaaahhhhhhhhhhhhhhhhhh!

  8. What the hell happened to Jacob Sullum’s post on this same subject?

  9. So, if I read this right, the majority found that section 2 of the 21st amendment was intended to enact the Webb-Kenyon act into the constitution. That’s a debatable point, but it is at least a clear and definitive one (I can see why Scalia was keen on it). It’s certainly miles clearer than the arguments of the States and the dissenters.

    I’ve been a skeptic of the IJ’s position on this issue — I don’t agree with that interpretation of section 2’s meaning — but I’m glad to see we got a definitive ruling with very little wiggle-room for the states and none of the vague balancing or compelling-interests bullshit that this court is prone to. And obviously it’s a big win for liberty and for wine-consumers.

  10. The cases were interesting in that they pitted two constitutional provisions against each other: the plain language of the Twenty-First Amendment (repealing Prohibition) and the non-existent language of the so-called Dormant Commerce Clause (prohibiting states from unduly burdening out-of-state competitors).

    Yes, from a libertarian perspective it’s “neat-o” that New Yorkers such as myself can now buy out-of-state wine directly over the Internet. But far more “neat-o” is the idea, which the Court yet again rejected, that the Constitution should “mean what it says and say what it means.”

  11. Throw a couple bucks in the IJ hat before you get on the phone to order a case of wine!

  12. i’m so confused.
    i thought we were supposed to champion State’s rights?!?

    i mean, isn’t the dormant commerce clause evvvvillll, and responsible for all that is wrong with America?

  13. As you might imagine this case interested me.

    Not IJ is right, let’s toss some coin.

    Grant, you may be technically right about the language and IJ’s postiion (I don’t know) but the big thing is, as you point out, this is a big blow for liberty. I predict (and hope) that this decision will have far-reaching implications for economic freedom across the board.

    I love IJ.

  14. Kip,

    I’ll refer you to Todd Zywicki’s various discussions about this (which he provides links to here) that argue that IJ’s position is Constitutionally sound based on the text.

  15. JSFan,

    The “dormancy” of the Commerce Clause refers to the expanded reading of the clause to include just about every possible economically related interpersonal transaction, instead of simply intrastate transactions. In reviving the Commerce Clause, the expected result is to rollback the unconstitutional authority that was assumed by the Federal Goverment under the guise of a gross misinterpretation of the clause.

  16. I think it’s very debatable whether this decision is constitutionally sound. I can buy the arguments on both sides. On the other hand, I think Section 2 of Amendment XXI sucks to begin with.

  17. Yeah, you and Miles….VBG

    Except that Miles’ # 1 wine in his collection is not a Pinot Noir at all but 1961 Cheval Blanc that is one-third Merlot and two-thirds Cabernet Franc, another grape that he dissed big time.

    Julian, I think you’re probably just having some fun but there are good Merlots to be had. I agree that the thin, watery, flavorless stuff that many people drink isn’t very good.

    If you’re not just fooling around, try a bottle of Franciscan Merlot. It can be had for under 20.00 and is usually very good. But part of its appeal is that it’s more cabernet-like, which sort of makes it an un-Merlot (like the un-Cola). If you don’t like big red wine, then skip it, because it is a robust red with lots of black fruit.

  18. ALLELUIA!!!!!!!!!!!!!!!!!
    I’m so dang blad happy I could just burp.
    Pinot for Everybody!

    There’s nothing in the 21st that says the commerce clause doesn’t mean what it says. This is a great day for the cause of liberty AND a textualist interpretation of the US Constitution.

  19. Like I said MP:


    “The decision means … we need to take a real tough look at how the Supreme Court ruling affects the Tax Commission and the tax structure. I don’t think we want to allow anyone to bypass the ABC,” Moak said.

  20. At least this guy admits it’s not about the children, it’s about the tax. Gotta hand him that.

  21. WC,

    Mmmmmm…Franciscan merlot. Gaaaahhhhhh

    Have you gotten around to that 2001 Columbia Crest yet?

  22. MP,

    unfortunately you have confused the Dormant Commerce Clause with “Aggregation” under the Interstate Commerce Clause (Wickard v. Filburn).

    what you are talking about is aggregation – the notion that Congress can regulate even purely inTRA-state transactions, because when you aggregate all the little transactions, on the whole, they “effect” interestate commerce (see Wickard, i.e. the wheat case)

    what i’m referring to is the Dormant Commerce Clause, the notion that even when Congress doesn’t give a fuck (i.e. has not legislated on an issue), the States *still* can’t legislate in an economically protectionist manner (as they did here with Wine), because the Commerce Clause suddenly awakes from it’s dormant state, and sua sponte acts to proscribe it.

    this Wine case was litigated to determine whether the Dormant Commerce Clause (which, like “substantive due process” is not actually found anywhere in the Constitution), whether the Dormant commerce clause “Trumps” the 21st amendment of the Constitution, an Amendment in which States reserved to themselves the right to regulate alcohol within their borders as a condition for the repeal of prohibition.

  23. The argument that an “explicit” or “textual” constitutional provision like the 21st Amendment should prevail over a “non-textual” one like the “dormant commerce clause” proves too much. For example, it would mean that states could torture people found guilty of violating their state liquior laws. (After all, the Eighth Amendment does not by its own terms apply to the states and the “incoporation” of it into the Foureteenth Amendment’s Due Process Clause is, like the “dormant commerce clause” a product of the judiciary in the sense that it is not found in the language of the Constitution itself.)

  24. RE: Commerce Clause

    This is exactly the kind of thing that should be governed by the commerce clause. It’s the direct buying and selling between parties in different states. There are zero degrees of separation. I don’t think it can be any more clear and definitive.

    or maybe i just like my liquor cheap and good. and i also see how preposterous the Illinois liquor cartel is and know that most measures that could cause its downfall will be good.

  25. The Great Ape,

    i too enjoy my liquor cheap and good. i too despise state liquor cartels.

    the question, as always is, are you willing to sacrifice a principal (Literal Constitutionalism) when it interferes with something that affects you?

    David T,

    the question of whether the Bill of Rights is incorporated against the states via the 14th amendment is a very difficult one, and is the reason why the Rogers Brown nomination to the circuit court has been blocked in the senate.

    anyway, most state constitutions have their own versions of a bill of rights, so in the end, “the people have spoken”

  26. “In a dissent, Justice Clarence Thomas argued that the ruling needlessly overturns long-established regulations aimed partly at protecting minors. State regulators under the 21st Amendment have clear authority to regulate alcohol as the see fit, he wrote.”

    Amazingly pathetic, that one of the USSC Justices in the country bases his dissent on one of the most worn-out, tired old non-sequiturs of all time: “won’t somebody PLEASE think of the children!?”

    But the shipping companies are REQUIRED to get an adult to sign for the package at delivery! Um, let’s see…I’d be willing to venture a healthy wager that there aren’t too many teenagers who are just chomping at the bit to get a credit card, go online, find a winery, order their expensive wine, spend a whole lotta extra money on exhorbitant fedex rates, wait for 2 weeks for it to ship, then go through all the trouble of finding someone who’s over 21 to sign for the package. Why would someone go through all that trouble just to get a little drink-on? Hell, if they were able to find an adult to sign for the package, then why not just get that same adult to buy them a 40oz at the corner deli instead?

    The fact that a USSC Justice fails to recognize this common-sense point is really scary.

  27. Regarding literalism, or textualism –

    Why should it be a higher value than liberty? Again, if you place the rule of law above all other values, you get some sick results (think slavery and 1930’s Germany).

    Why can’t we do something akin to contract interpretation? In other words, what was the overriding intent of the drafters, pundits, and citizenry in enacting this document? Was it to create democratic fascism? Or was it to try to create a government that respected individual rights (with the obvious cultural blind spot of women, and the obvious compromise with the devil on slavery)?

    Why can’t we use that intent to fill in the gaps where the document is unclear or ambiguous? That government (especially the federal government) loses unless it can point to explicit authority in the document?

    And, returning to this thread, that in the absence of something in the document allowing the states to enact protectionist measures, they do not have that power? That only the feds have the power to meddle with interstate commerce issues. And conversely, that the feds have no power over purely intra-state commerce issues?

    The rule of law was only one tool employed in the Constitution to prevent tyrrany. If it becomes the ends instead of the means, it is just as likely to lead to tyrrany as it is to liberty.

  28. OK, first of all I should lay the cards on the table and say that my preferred policy outcome would be for the restrictions on wine imports to be overturned.

    Now, as to whether the ruling properly applied the Constitution: I’ve seen the arguments on both sides. In the end I think the stronger case is in favor of overturning the ban, so I think the Supremes ruled correctly. However, I recognize that it wasn’t a slam-dunk, that there were hard questions involved.

    When there are hard questions involved, the consistency of the ruling is just as important as the merits of the ruling. As long as this ruling is applied consistently and predictably in the future I think it’s good enough.

  29. Evan Williams-
    I haven’t read Thomas’s dissent yet, but I imagine he isn’t necessarily agreeing that the states care about or actually are protecting the children. As a judge, it is Thomas’s role to determine whether the Constitution says this is or is not a valid reason for the tax, not whether he thinks it’s a good reason. The idea is that legislatures enact stupid laws for stupid reasons all the time. Unless they run contrary to the Constitution, it is the job of legislatures, and the people who elect them to repeal them.

  30. “Why can’t we do something akin to contract interpretation?”

    H’aint that what the supreme and circuit courts do already? Interpret the law as they see it? Dang, quasibill, look around ya: there’s no shortage of motherfuckers interpreting the constitution in their own little way.

    “That government (especially the federal government) loses unless it can point to explicit authority in the document?”

    Teehee. Show me a government body willing to concede that kind of power to its peasant class, and I’ll eat my shoes. The government gives itself the benefit of the doubt and the upper hand, at every opportunity. For instance, in the recent trial of pain doctor William Hurwitz, the DEA only allowed their hand-picked witnesses to testify, and blocked all the witnesses who were Hurwitz’s patients and had good things to say about him.

    “And, returning to this thread, that in the absence of something in the document allowing the states to enact protectionist measures, they do not have that power?”

    That’s precisely the question at hand, quasibill. The 21st amendment gave the state govt’s the power to regulate alcohol. This case came about because many feel that it conflicted with the interstate commerce clause. When one law explicitely says they DO have the power, and another explicitely says they DON’T, then what do you do?

    “If it becomes the ends instead of the means, it is just as likely to lead to tyrrany as it is to liberty.”

    Though, the nature of the government is that of universal administration of the law. Cops don’t let you off the hook for drunk driving because there was nobody else on the road and you were only a danger to yourself. They exist to prosecute the law, and while I agree that the law should not be the ends, the point is to construct the laws in a clear and concise manner, so that it works towards the ultimate ends: the best balance of liberty and security.

  31. Unless they run contrary to the Constitution, it is the job of legislatures, and the people who elect them to repeal them.

    And, according to the majority decision, it did run contrary to the constitution (commerce clause). If Thomas disagrees and merely wished to give precedence to the 21st amendment, then that’s all he had to say. Coating his dissention with a thick layer of “protecting the children” bullshit was unnecessary, and out of his bounds. It’s obvious that the regs had nothing to do with protecting children, as in-state wine orders were still allowed. If it was really about protecting the children (and not about protecting in-state industry & taxes), then the regulations would have been equally applied to instate producers—but it was not.

    So, my statement stands. Thomas asserted that interstate commerce was not an issue here, that it was instead about protecting children, and that the commerce clause therefore had no play. But, given that these “child-protecting” laws were not equally applied to in-state wineries is clear and inescapable evidence that he is unequivocally wrong in his dissention.

  32. JSFan,

    I disagree that there is principle being sacrificed. The Constitution specifically states the right of the feds to regulate interstate commerce and as far as I can see, this is interstate commerce in its most literal, strict, constructionist form, not the bastardized interpretation that has been the source of so much non-commercial legislation.

  33. The Great Ape,

    I do not doubt that the Feds have the authority under the Commerce Clause to regulate interstate commerce. However, in this case, the “Feds” have not done so. Congress has passed no law that conflicts with the individual State liquor regulations.

    So the next question is, even when the Feds have *not* regulated this commerce, does the Commerce Clause still lie “dormant” and prevent the States from regulating in this manner. The Clause certainly doesn’t say that it prevents States from doing anything, it literally only reads to grant the Feds the ability to do something. It takes “activists” Justices to read into the Clause more than it actually contains.

    Finally, even if the Commerce Clause lies dormant and, even in the case where the Feds have not regulated anything – the last question is, does the 21st Amendment, nevertheless, reserve the power to the States to regulate this one, small area of commerce, namely liquor. After all, the States have only consented to join the Union on certain conditions, and it would seem to me, that one of those conditions, is that they (the States) be allowed authority to regulate alcohol within their boarders however they see fit, free from interference either from the Feds, or in absence of Federal regulation, from a dormant Commerce Clause.

    Am i happy that i can now order alcohol directly from out of state wineries over the internet? Absolutely! but i am sad on how that was accomplished. rather than have my state change it’s laws, the power has been taken out of their hands, and the hands of the People of my state, unilaterally by 5 Federal Employees sitting in Washington, DC.

  34. Evan,

    “interpret the constitution as they see it?” is not what I was talking about. Interpreting it as it was intended – to be a bulwark against government oppression – is a very different thing than “living constitution”.

    As for a government body willing to concede that power to the “peasant” class (whatever that may be – I prefer non-Mandarin class, but that’s usually a little bit cryptic) you can find certain instances of it in the SCOTUS. Not enough, clearly, since FDR, but it does do it every once in a while.

    I see enough of the perversion of criminal law on a daily basis – no need to point it out to me. Quite often the double jeopardy clause is used as an excuse to allow the prosecution to literally get away with murder at trial, and then it becomes the defendant’s burden to establish not only error, but prejudice. And don’t even get me started on restraining orders – where the presumption is always guilty, with little chance to prove yourself innocent, leading to a loss of all kinds of rights, including one protected by a Constitutional amendment!

    What do you do when two pieces of positive law conflict? Well, in my method, the answer is – whatever restricts state power the most, leaving the most liberty to the individual. The government is in the best position to protect it’s position by proposing a future amendment and ratifying it, if necessary. After all, its got all of our money to spend for its own interests, whether we agree or not…

    I’m not sure what the example of the cop is supposed to show – that’s an entirely different branch of government (which is another tool used by the drafters to protect individual rights – separation of powers). The cop only gets to say whether he thinks the law was violated. Another branch gets to say whether it was in a final fashion.

  35. JSFan,

    OK, I see what you mean now. I take it, then, that you would be perfectly OK with the federal legislature taking action and asserting their 1st order right to regulate interstate commerce by passing a law that says states cannot do such things?

  36. The Great Ape,

    If congress wanted to bar States from being protectionist, for say, interstate shipments of Apples (the fruit, or the computer, either one), i’d say – more power to them.

    the only question is, if congress decided to bar states from being protectionist for Hard Apple Cider (alcohol), could they do that, and still not step on the individual State’s 21st Amendment perogative?

    why should alcohol be special? that’s a very good question, one for which i might not have an answer, other than to simply say – history. but the fact that alcohol *is* (constitutionally) special, cannot be denied.

  37. Evan,

    After you stop ranting and raving, you might want to read Thomas’s opinion, rather than a newspaper article. Nowhere does he discuss protecting children. His dissent is purely one of statutory interpretation.

    The kindest thing one can say about the article is that the author doesn’t know how to write; the less charitable interpretation is that he was deliberately misrepresenting the case.

    “In a dissent, Justice Clarence Thomas argued that the ruling needlessly overturns long-established regulations aimed partly at protecting minors. State regulators under the 21st Amendment have clear authority to regulate alcohol as the see fit, he wrote.”

    1. Thomas didn’t argue that the ruling “needlessly” overturned anything; he argued that the ruling misinterpreted the relevant statute and the constitution.

    2. The state laws were not “aimed partly at protecting minors.” They had nothing to do with minors. They were aimed at protecting domestic wineries. The states’ recent claims to the contrary in the course of this litigation are risable. There aren’t a lot of 17 year olds ordering a nice cabernet over the internet.

    3. Even if the laws were aimed at protecting minors, Thomas didn’t argue that. It’s two different ideas, spliced together:

    (A) Thomas argued that the ruling needlessly overturned regulations, and (b) the regulations were aimed at protecting children.

  38. If anybody finds the plaintiff’s contact info, please post it here as I would love to place an order.

  39. Next time, before I post to H&R, I promise I’ll spend the full 40 seconds rather than 25 searching google results:

    Swedenburg Wines is here (website says that they “no longer” distribute their wines, but I can’t imagine they stuck through a Supreme Court battle only to give up – I hope they’re out celebrating with a few bottles!).

  40. I always interpreted the commerce clause as preventing inter-state tariffs and protectionism. In enacting different rules for out of state wineries, the states in question violated that clause. I don’t see the 21st amendment granting state the right to specify state of origin(despite early SCOTUS rullings), instead the intent was to allow for states to regulate alcohol in general.

    The states can still regulate alcohol as they see fit. They just have to use the same rules regardless of where in the U.S. the alcohol is produced.

    Besides as libertarian thinkers, should we welcome anything that moves us closer to a free market?

  41. David, good points. I was disappointed in the Thomas dissent. He is still wrong, but now it appears he’s wrong for the right reasons. I blogged your comments and linked to your site.

    Joe, mmmmmm, indeed. But you know, I keep forgetting to pick up that Columbia Crest. I have drank a lot of that Merlot over the years, sometimes it was pretty good, sometimes not. But, dang, I keep forgetting to try the ’01. Big Sigh.

  42. The Other David

    “Besides as libertarian thinkers, should we welcome
    anything that moves us closer to a free market?”

    That’s what I thought when I voted in favor of Indian Gaming in Californicate a couple of decades ago.

  43. BUT I WAS WRONG……..

    Forgot to add that part.


  44. BTW, that part about ‘Ranting and raving’ came across as harsher than I intended it, but Evan was awfully loud in denouncing Thomas’s opinion in multiple posts, without having read the opinion.

    Also, I engage in a lot of media criticism, so kudos to USA Today. The link above, from which the offending passage was taken, originally linked to AP’s take on the story contained in USA Today. Now USA Today has rewritten the story, and much more accurately summarized the dissent:

    The dissenting justices ? Chief Justice William Rehnquist, Sandra Day O’Connor, John Paul Stevens and Clarence Thomas ? said that the majority had misinterpreted state authority under the 21st Amendment.

  45. i mean, isn’t the dormant commerce clause evvvvillll, and responsible for all that is wrong with America?

    What’s evil is the interpretation of the commerce clause as “anything that effects commerce”.

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