Today in Supreme Court History: December 5, 1933

12/5/1933: The 21st Amendment is ratified.

Comments

[apedad]

TWENTY-FIRST 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Constitution of the United States is hereby repealed.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.

~~~~~
I wonder . . . since the 21st specifically states "in violation of the (state) laws thereof," could does that allow states to bypass the dormant Commerce Clause?

So it's saying a state could prohibit the import of another state's booze, right?

[Dan Schiavetta]

The phrasing does imply the validity of State laws prohibiting importation of liquor (from another State).

But . . .

Louisville & Nashville R.R. Co. v. F.W. Cook Brewing Co., 223 U.S. 70 (decided January 22, 1912): Kentucky can prohibit intrastate shipments of liquor to counties that have voted to be “dry”, but to prohibit interstate shipments to such places violates Dormant Commerce Clause

and . . .

Bacchus Imports v. Dias, 468 U.S. 263 (decided June 29, 1984): struck down Hawaii’s tax exemption for in-state manufactured brandy as violating Dormant Commerce Clause

[defaultdotxbe]

I believe that clause of the 21st may overrule the first case. IIRC that was to allow states to retain prohibition if they chose.

[David Nieporent]

Granholm v. Heald, 544 U.S. 460 (2005), held that states could not discriminate against out-of-state sellers in alcohol regulation; that violates the Dormant Commerce Clause.

[F.D. Wolf]

The early Supreme Court decisions said “yes”, but more modern ones say, “no.”

For example, in State Board of Equalization v. Young’s Market Co., 299 U.S. 59 (1936), the Court upheld a California statute that required payment of an annual license fee to import alcohol from out of state. The Court explicitly said this would have been unconstitutional before the Twenty-first Amendment, but that Amendment made it permissible.

But, for example, in Granholm v. Heald, 544 U.S. 460 (2005), the Court retreated from that expansive view, holding that state laws that favored in-state alcohol interests over those out of state, were subject to the Commerce Clause and must further a legitimate state interest that could not be met by a non-discriminatory alternative (essentially the same test for restrictions on non-alcohol products.)

[SMP0328]

You forgot 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.

This is the only amendment adopted via state ratifying convention. In effect, this meant the amendment was adopted via 48 state referenda. The delegates to the respective conventions were mere functionaries, like the electors in the Electoral College.

[jdgalt1]

Were the delegates chosen by voters, legislators, or the Governors?

[Dan Schiavetta]

Lopez v. Gonzalez, 549 U.S. 47 (decided December 5, 2006): felony under state law which is only a misdemeanor under federal law is not “a felony punishable under the Controlled Substances Act” (18 U.S.C. §924(c)(2)) (here, abetting possession of cocaine) and therefore deportation is discretionary

Things Remembered, Inc. v. Petrarca, 516 U.S. 124 (decided December 5, 1995): order remanding after removal is not appealable (once it’s out of federal court, it’s gone) (wrinkle here was that remand was to bankruptcy court, not state court, but bankruptcy court had no choice but to remand further to state court)

Pavelic & LeFlore v. Marvel Entertainment, 493 U.S. 120 (decided December 5, 1989): Rule 11 sanctions for a frivolous pleading are to be awarded against the attorney who signed it, not his law firm (Scalia cites text of Rule; in dissent Marshall emphasizes trial judge’s right to control his courtroom, and that trial judge penalized both attorney and firm) (if you want to see an extreme example of Rule 11 “satellite litigation” during those mean years, check out Cooter & Gell v. Hartmax, 1990) (in 1996 or so my adversary once threatened me with a Rule 11 motion for proposing to ask the judge for permission to move for summary judgment)

[F.D. Wolf]

About 20 years ago, I was driving through West Texas and stopped at a restaurant. I ordered a meal and a beer. The waitress said, "I'm sorry, sir, but this is a private club and legally we can only serve alcohol to our members." I said something to the effect of, "I understand. I'll just have an iced tea then." She said, "If you want, you could become a member," and she handed me a sheet with a schedule of various membership "dues" that included a two-hour membership for, if I recall, two dollars. So, I was a member of that "private club", whose name I don't recall, for the next two hours, though I guess I left with more than an hour left in my membership.

[Dan Schiavetta]

My experience in Texas was similar.

Another time, I was in Austin for a convention. I went into a bar and had a beer. I asked for a menu. The waitress said, "We don't serve food." Not even pretzels!

Then there was the "package store" business in "dry" counties, where you had to go around to the back to a separate building.

[John F. Carr]

In Massachusetts, I don't think it's legal to serve liquor to be drunk on the premises without at least snack food available.

[Dr. Ed 2]

I think it depends on the license -- memory is that one is either licensed as a resturaunt (and do) or a hotel (and don't) but I may be confusing this with Maine.

The college town of Northamption has "seasonal" licenses because they are only allowed a certain number of restaurant licenses based on the population (all of which are issued) so other restaurants don't serve in January and February..

[SRG2]

I remember a layover in SLC airport where I had to order a meal - and chips counted as a meal - to get a beer.

[Dr. Ed 2]

During COVID, MA Governor Baker banned chips and required the serving of full meals.

[Randy Sax]

I used to know a guy who had a "pretzel" stand. He sold small hard pretzels like the kind you'd buy in a bag at the gas station for $5 a piece. But each pretzel came with your choice of a free beer.

[Rev. Arthur L. Kirkland]

That guy sounds like a dope.

[defaultdotxbe]

I've been to a similar place in, IIRC, Kentucky. There, it was to exploit a loophole in local dry laws, where "private" clubs could serve alcohol (no matter how public the private club actually was)

I've also been to a place where you had to be a "member" to even walk in the door, that one exploited an identical loophole in the local indoor smoking ban.

[Nameless But Highly Opinionated]

Opa!