# Supreme Court overturns wine-shipping bans- yay! **URL:** \ **Category:** Miscellaneous and Personal Stuff I Must Share\ **Created:** [May 16, 2005, 6:56pm UTC](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109 "2005-05-16T18:56:09Z")\ **Posts on this page:** 5\ **Page:** 2
**Author:** ![Kythereia](https://avatars.discourse-cdn.com/v4/letter/k/e8c25b/32.png) [@Kythereia](https://boards.straightdope.com/u/Kythereia)\ **Post date:** [May 19, 2005, 6:41pm UTC](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109/21 "2005-05-19T18:41:20Z")
Feh. Our beer still pwnz you all. 😉 ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [May 20, 2005, 10:43pm UTC](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109/22 "2005-05-20T22:43:28Z")
> [@pravnik](#): > > Ah, say the states, but Congress and an independent provsion of the Constitution _did_ give us permission to do so, in the 21st Amendment and the Webb-Kenyon Act, which read together clearly gives us the right to regulate the importation of liquor and the circumstances in which it is sold and used, in any manner we see fit even if discriminatory! Nope, sorry. You can regulate the sale and use of all beverage alcohol in an evenhanded manner, but case law and analysis of legislative history has said again and again that if the state law in question is nothing more than an economic preference for in-state producers, the argument that the 21st Amendment gives the states carte blanche to discriminate won’t fly. OK, that’s the outcome. That’s settled. But what’s the reasoning? In particular, what’s the legislative history to which you refer? I hope you’re talking about something in the legislative history of the 21st Amendment that says Section 2 is just equalizing states’ ability to regulate imports of alcohol from out-of-state with their ability to regulate in-state. ---
**Author:** ![psycat90](https://avatars.discourse-cdn.com/v4/letter/p/7ea924/32.png) [@psycat90](https://boards.straightdope.com/u/psycat90)\ **Post date:** [May 21, 2005, 12:57am UTC](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109/23 "2005-05-21T00:57:37Z")
The Commerce Clause. \*…but the pre-Amendment history recited here provides strong support for the view that §2 only restored to the States the powers they had under the Wilson and Webb-Kenyon Acts… It did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they never enjoyed. More recent cases confirm that the Twenty-first Amendment \*\*does not supersede other provisions of the Constitution \*_and, in particular, does not displace the rule that States may not give a discriminatory preference to their own._ The main case used to argue the point was Bacchus. In Bacchus, the courts ruled that Hawaii could not impose a tax on imported wines, but \*not \* impose the same tax on locally produced wines. Why? Because it’s protectionism, and it violates the Commerce Clause. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [May 21, 2005, 2:55am UTC](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109/24 "2005-05-21T02:55:07Z")
> [@psycat90](#): > > The Commerce Clause. > > \*…but the pre-Amendment history recited here provides strong support for the view that §2 only restored to the States the powers they had under the Wilson and Webb-Kenyon Acts… Hold on - didn’t we already conclude that Section 1 did that all by its ownself? > [@](#): > > It did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they never enjoyed. Well, that’s the thing about a Constitutional amendment - it can create new rights or powers like that. If Section 1 made Wilson and Webb-Kenyon un-moot, then it follows that Section 2 did something other; hence the above interpretation is off the mark. > [@](#): > > More recent cases confirm that the Twenty-first Amendment \*\*does not supersede other provisions of the Constitution \*_and, in particular, does not displace the rule that States may not give a discriminatory preference to their own._ > > The main case used to argue the point was Bacchus. > > In Bacchus, the courts ruled that Hawaii could not impose a tax on imported wines, but \*not \* impose the same tax on locally produced wines. Why? Because it’s protectionism, and it violates the Commerce Clause. [/quote] I think we’re going in circles here, and I’m not sure if it’s me or you. 🙂 If the 21st Amendment amends the Commerce clause, then _Bacchus_ and its descendants (including the present decision) are wrong; if it doesn’t, they’re right. But the Commerce Clause itself can’t be cited as support for either side. Then there’s the legal history: only if one accepts that the intent of Section 2 was to restore the Wilson and Webb-Kenyon Acts does the pre-Amendment _legal_ history amount to something. Consequently, one can’t use that history to ‘prove’ that that was the intent of Section 2; it’s the other way around. If the history proves that was the intent of Section 2, and that interpretation of Section 2 in turn gives meaning to that history, we’ve got a logical circle. At some point, one needs to show the _legislative_ history of the 21st Amendment supports the proposition that Section 2 was intended to restore Wilson and Webb-Kenyon. In the absence of such history, I’ve got to agree with Stevens’ dissent: the courts at the time would have had a much clearer idea of the intent of Section 2 than courts ruling three decades or more after the Amendment was ratified. ---
**Author:** ![psycat90](https://avatars.discourse-cdn.com/v4/letter/p/7ea924/32.png) [@psycat90](https://boards.straightdope.com/u/psycat90)\ **Post date:** [May 21, 2005, 4:11am UTC](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109/25 "2005-05-21T04:11:11Z")
Oh, I have no doubt I’m the one going in circles. It is Friday night, and the beer is going down easy. 😉 Still, it’s fun interacting with folks on this topic. Like I said, it’s something I’ve been following for months, but never really get a chance to talk about. I think it will be very interesting to see how it all plays out in the next few months and years. And, like you, I’d still love to see a legal perspective of it all. [Previous page](https://boards.straightdope.com/t/supreme-court-overturns-wine-shipping-bans-yay/304109.md?page=1)