# 21st amendment and the Commerce Clause **URL:** \ **Category:** Great Debates\ **Created:** [November 11, 2004, 2:33am UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131 "2004-11-11T02:33:29Z")\ **Posts on this page:** 7\ **Page:** 1
**Author:** ![Tigers2B1](https://avatars.discourse-cdn.com/v4/letter/t/9fc29f/32.png) [@Tigers2B1](https://boards.straightdope.com/u/Tigers2B1)\ **Post date:** [November 11, 2004, 2:33am UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/1 "2004-11-11T02:33:29Z")
I’m no Constitutional scholar – but I think that this case has the potential for extreme coolness (i.e. a very interesting analysis of both the 21st Amendment and the Commerce Clause respectively, and that interrelationship.) What case? This one - oral argument pending - > [@](#): > > \*\*Now it’s wine vs. beer at the Supreme Court as justices prepare for one of their more politically spirited cases. > > It’s also California vs. Michigan, eBay vs. wholesalers and Nobel Prize winners vs. law enforcement officials. In short, advocates from all over are stepping up to the bar in a dispute with implications that reach beyond Internet wine sales. > > …The Supreme Court hasn’t yet explained how the hourlong oral argument Dec. 7 will be divided up, and Genesen said the wine industry’s lawyers are still deliberating over who will present their case. The constitutional arguments, though, have fully bloomed in legal briefs. > > On the one hand, the Constitution’s commerce clause is understood to mean that states can’t simply discriminate against out-of-state business. Winemakers hoping to bypass wholesalers and sell directly to customers stress this point…. > > …Elsewhere in the Constitution, though, the 21st Amendment explicitly gives states the authority to regulate alcohol sales. > > Direct-shipping opponents say this trumps the commerce clause concerns, and they have rallied their friends of the court to say so. > > The 21st Amendment “grants states virtually complete control over whether to permit importation or sale of liquor and how to structure the liquor distribution system,” the Beer Institute argues in its amicus brief. “There can be no doubt that New York’s direct distribution law asserts control in precisely those areas.”…\*\* [http://www.detnews.com/2004/business/0411/10/C04-1045.htm](http://www.detnews.com/2004/business/0411/10/C04-1045.htm) As we know, the 18th Amendment’s absolute prohibition on liquor was repealed and the decisions regarding liquor regulation were given to the States via the 21st amendment. So, if a State can’t control imports into that State, then they can’t control liquor within their borders. Hence, the State power to prohibit liquor imports. That’s my understanding anyway – If the Supreme Court does decide that the Commerce Clause controls, I wonder how the Supreme Court will get past section 2 of the 21st Amendment? This has me baffled. Section 2 seems pretty cut and dry ----- But, again, I’m no Constitutional scholar. Yet, here we have it, the Supreme Court has accepted this case. So, it stands to reason that some of the Justices, at least, must have something in mind. What ever could it be? Amendment 21 - > [@](#): > > 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. ---
**Author:** ![Tigers2B1](https://avatars.discourse-cdn.com/v4/letter/t/9fc29f/32.png) [@Tigers2B1](https://boards.straightdope.com/u/Tigers2B1)\ **Post date:** [November 16, 2004, 6:32pm UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/2 "2004-11-16T18:32:50Z")
Well I thought it was interesting. I’ll send it back up once, dust off the dirt from it’s premature grave, and if no bites — well, I’ll assume reincarnation ain’t reality, and throw this fish back – and let her die one natural death rather than a thousandd unnatural ones - But again, maybe it’s not the subject — maybe it’s just the way I put it - ---
**Author:** ![Polycarp](https://avatars.discourse-cdn.com/v4/letter/p/82dd89/32.png) [@Polycarp](https://boards.straightdope.com/u/Polycarp)\ **Post date:** [November 16, 2004, 6:42pm UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/3 "2004-11-16T18:42:20Z")
I’ll give you a quick take on this, according to doctrine that I think every Constitutional scholar, Bar member or layman, on this board, concurs with. When a general principle is enunciated, and a later statement of more specificity and equal weight appears to contradict it, the rule is that the general statement holds _with the exception of the specific exception made_. I.e., Congress has the exclusive power to regulate interstate commerce and no state has the right to forbid imports except as empowered by Congress to – **except** that states are given the power to regulate traffic in alcoholic beverages within their borders by the 21st Amendment. I suspect strongly that they need to be construed together in most cases. I.e., a state may prohibit the importation of intoxicating liquor for sale except in accordance with its laws, but New Hampshire may not declare itself dry and in consequence prohibit truckload shipments of beer from Boston to Portland up I-95. The former is the 21st Amendment authorization to regulate; the latter is an impermissible interference with interstate commerce where the goods in question do not contravene the state’s own authority. ---
**Author:** ![SuaSponte](https://avatars.discourse-cdn.com/v4/letter/s/67e7ee/32.png) [@SuaSponte](https://boards.straightdope.com/u/SuaSponte)\ **Post date:** [November 16, 2004, 8:39pm UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/4 "2004-11-16T20:39:59Z")
> [@Polycarp](#): > > I’ll give you a quick take on this, according to doctrine that I think every Constitutional scholar, Bar member or layman, on this board, concurs with. > > When a general principle is enunciated, and a later statement of more specificity and equal weight appears to contradict it, the rule is that the general statement holds _with the exception of the specific exception made_. > > I.e., Congress has the exclusive power to regulate interstate commerce and no state has the right to forbid imports except as empowered by Congress to – **except** that states are given the power to regulate traffic in alcoholic beverages within their borders by the 21st Amendment. > > I suspect strongly that they need to be construed together in most cases. I.e., a state may prohibit the importation of intoxicating liquor for sale except in accordance with its laws, but New Hampshire may not declare itself dry and in consequence prohibit truckload shipments of beer from Boston to Portland up I-95. The former is the 21st Amendment authorization to regulate; the latter is an impermissible interference with interstate commerce where the goods in question do not contravene the state’s own authority. It isn’t quite that simple, **Poly.** For example, what if New Hampshire passed a statute that barred the delivery and use of all intoxicating liquors in that state, except for Amstel Light? That would undoubtedly not pass constitutional muster. I don’t know how the Supremes will rule on this, and I find the case intriguing. If I were to guess, I would say that the Supremes would look to the intent of the framers of the 21st Amendment, and determine that the intent was to allow indiviudal states to continue Prohibition if they wanted to, or otherwise limit or prohibit categories of intoxicating liquors (i.e. prohibit anything over 80 proof, 100 proof, etc.). Once a state has determined to allow a particular category, however, my guess is that the Supremes will determine that the Commerce Clause takes over, and the state must treat everyone within that category the same. IOW, the Wine Institute will win. But I’m not going to bet the farm on this case, either way. Sua ---
**Author:** ![jgroub](https://avatars.discourse-cdn.com/v4/letter/j/b77776/32.png) [@jgroub](https://boards.straightdope.com/u/jgroub)\ **Post date:** [November 17, 2004, 7:29pm UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/5 "2004-11-17T19:29:41Z")
Yeh, what **Polycarp** said. Basically, since the 21st A came last, and gives the states the rights to do almost as they please, it trumps the Commerce Clause. ---
**Author:** ![Tigers2B1](https://avatars.discourse-cdn.com/v4/letter/t/9fc29f/32.png) [@Tigers2B1](https://boards.straightdope.com/u/Tigers2B1)\ **Post date:** [November 17, 2004, 7:35pm UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/6 "2004-11-17T19:35:27Z")
> [@jgroub](#): > > Yeh, what **Polycarp** said. Basically, since the 21st A came last, and gives the states the rights to do almost as they please, it trumps the Commerce Clause. Both are a part of the Constitution and as such, both are part of the supreme law of the land. I don’t see how one part of that supreme law is more or less supreme than any other part. While the SCOTUS will have to reconcile the 21st to the commerce clause - I wonder if they will hold one part of the Constitution as ‘trumping’ another because it came later in time? That’s not how it works — is it? ---
**Author:** ![Freddy\_the\_Pig](https://avatars.discourse-cdn.com/v4/letter/f/a587f6/32.png) [@Freddy\_the\_Pig](https://boards.straightdope.com/u/Freddy_the_Pig)\ **Post date:** [November 17, 2004, 9:05pm UTC](https://boards.straightdope.com/t/21st-amendment-and-the-commerce-clause/274131/7 "2004-11-17T21:05:19Z")
For some thirty years now, the Supreme Court has been backing away from the proposition that Section Two constitutes a blanket exemption of alcoholic beverages from the Commerce Clause. (See especially [Bacchus Imports v. Dias](http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=468&page=273)). I believe they have been correct to do so, and I hope they’ll continue to do so in this case. Neither Section Two, nor the Webb-Kenyon Act of 1913 from which its odd language was copied, were intended to allow state _protectionism_ with respect to alcohol. They were intended to allow states to apply _the same_ restrictions to imports (including a total ban, if so desired) that they applied to in-state production and sale. States have abused this power to discriminate in favor of local suppliers. For example, > [@](#): > > In Michigan, out-of-state wineries are only allowed to ship directly to wholesalers, while their in-state counterparts are allowed to ship directly to consumers. In addition, all parties wishing to access wholesalers must obtain a license from the state. The wholesale license costs $300 for out-of-state wineries and $50 for in-state wineries. I hope the Supreme Court will put a stop to this. Yes, states have the power to tax and regulate alcohol–but they must do so in a non-discriminatory, non-protectionist manner.