Yesterday, SCOTUS heard Granholm v. Heald and Swedenburg v. Kelly, in which Michigan and New York prohibit or limit so severly as constructively to prohibit out-of-state wineries from shipping directly to customers in their states.
The wineries claim that the Commerce Clause prohibits states from discriminating against out-of-state wineries in this way. The states claim that the 21st Amendment, which repealed prohibition and stated that “The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of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,” trumps the Commerce Clause in this matter.
I was surprised at the chilly reception the states seemed to receive from the Justices yesterday. But who knows? I have to imagine that from time to time they’ll question the side they think is “right” harder to hone their own future opinions.
So two debates.
One, will SCOTUS choose the Commerce Clause or the 21st Amendment’s language to be controlling here? And will their choice be correct?
Two, the easier in my mind, is if given the power under the 21st Amendment, should states prohibit direct shipments of out-of-state wines to in-state consumers? What about in-state wines? As a proponent of small business over big business and regulation, I believe they should not prohibit it and force wineries into a massive, expensive and over-regulated distribution system to reach their customers.
The 21st Amendment’s specific and later language trumps the earlier, and much more general, Commerce Clause language. Any justice reasoning from the text, and not working backwards from a pre-desired result, should rule in favor of the state law.
Therefore the Supreme Court will decide in favor of the Commerce Clause.
Hee! That’s kind of what I took away from the articles about the oral arguments. You think they’ll cave out something to allow New York’s statute (which basically says an out of state winery can ship if they have their own warehouse, which of course no small winery can realistically have) or will it be a clean sweep?
I, uh, freely admit an interest in the outcome of this case. I haven’t broken NY’s law yet because I’ve been fortunate to find in-state distributors for all the wines I’ve wanted. But that won’t last forever, and I’ve got a friend with a couple of cases sitting in storage in Tuscany awaiting a favorable outcome.
I suspect the states are misinterpreting the 21st amendment. The intent behind it was to restore the status quo that existed prior to the passage of the 18th amendment, not to grant any additional powers to the states.
The constitution bans interstate tariffs. There’s a very long established precedent that this applies to the imposition by states of any law intended to discriminate against out-of-state businesses.
Under the theory that the 21st Amendment should always trump other constitutional provisions simply because it was added more recently, doesn’t this include the 14th Amendment? Would states be free to ban blacks or Jews from importing wine because none of the constitution’s equal protection guarantees apply to such legislation?
]Then why not simply repeal the 18th, and not add any additional language?
[/QUOTE]
The 21st Amendment mostly restored the status quo (the states decide whether or not to permit the sale/transportation/etc of alcohol), with the sole exception of creating out a federal prohibition against violating a state prohibition (in place of the more sweeping federal prohibition authorized by the 18th Amendment).
The notion that this clause of the 21st Amendment supercedes the general Commerce Clause strikes me as fanciful (the Commerce Clause precludes state laws that discriminate between intrastate and interstate commerce, thus, no such law could possibly be one of “the laws thereof” backed up by federal power under the 21st). Justice Thomas ought to return the Penumbral Emanation Spectacles to the left side of the bench. .
To be fair to Thomas, the really bizarre statement was issued by Justice Stevens.
Er, the “millions of Americans who condemned the use of the “demon rum” in the 1920’s[sic] and 1930’s[sic]*” lost when the 21st was ratified. I’d hardly consider their opinions decisive when determining the metes and bounds of the bone that was thrown to them.
*Damn, it’s even infected the Supreme Court. Fall back, men; ignorance has won this battle…
Would a state law passed subsequent to the 21st Amendment, and in reliance on its clear language that a state may pass such laws, be similarly fanciful?
I agree a case can be made either way. I don’t characterize this as activist - or fanciful.
I find this question interesting, because it pits the two schools of “non-judicial-activist” jurisprudence against each other.
A literal reading of the 21st Amendment, as might be pursued by a textualist, would understand it to carve out an exception to the general Commerce Clause empowerment of the Federal government with reference to intoxicating beverages, which are appropriately regulated by the states under the Art 21 Sec 2 award of power.
However, a reading of it based on original intent notes that the Commerce Clause was written and has consistently been interpreted to prohibit states from mandating favoritism or exclusive use by the public of products produced in that state … that goods from any state are entitled to equal treatment. There are, of course, exceptions; the state in its corporate capacity may decide to purchase exclusively or give preference to its own products, by way of encouraging its local commerce and industry. But it cannot mandate this on its citizens in a magisterial capacity.
The intent of the 21st Amendment’s second section was, with Prohibition repealed, to enable individual states to ban or regulate the consumption of alcoholic beverages within its bounds. (North Carolina, for example, is presently exploring the revision of its statute maximizing the legal alcohol content of beer at 6%, to permit beers up to 15% alcohol.)
So a state can be “dry,” can permit local option to remain dry, can regulate the legal alcohol content of beverages or liquors sold within it, etc.
But from an originalist perspective, it may not supersede the equality of commerce among the states to require preference or exclusivity of locally produced goods.
It may say that local or interstate-shipped beer or wine may not exceed a given proof. It may ban local or interstate-shipped distilled liquor over a given proof. But it may not discriminate between locally produced beverages and beverages shipped in across state lines in violation of the Commerce Clause. This was not the intent of Section 2 of the 21st Amendment, and it should not be read out of its historical context to say so, in originalist perspective.
Laws which fall under the clearlanguage of the 21st Amendment (local laws limiting alcohol transportation and sale, falling equally on interstate and intrastate trade) are not affected by this decision. The point at issue (the alleged exception to the Commerce Clause) is, at best, a matter of inference, and hardly “clear”.
.