Monday, May 16, 2005

Reading the 21st Amendment Out of the Constitution

Section 2 of the 21st Amendment is entirely comprised of the following cryptic phrase: "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."

Facial reading of this monstrosity says the Constitution grants authority to states, territories or possession of the United States (like a district or military base) to write laws regulating the transportation or importation of intoxicating liquor. The first part of the 21st Amendment repealed prohibition, while this second part empowers states to continue the noble experiment, should it so desire.

Some of the States have chosen to exercise this power by refusing to allow the importation of liquor from out of state which is sold directly to consumers. Which means I am prohibited from purchasing wine straight from a California winery. However, Washington State law does allow me to make a similar direct purchase from an in-state winery. Although cloaked as a health and safety rule (protection of minors from alcohol) it is in effect a protectionist scheme that favors in state wineries over out of state wineries.

Which brings us to today's Supreme Court decision Granholm v. Heald. See, the Court has long since read the Commerce Clause of the Constitution to contain something known as the "Dormant Commerce Clause" which says (without actually saying anything) that state's many not discriminate against one another. Consider how nations have tarriffs on goods that cross their boarders... the DCC makes such barriers between the States unconstitutional. Let's all be clear, regardless of whether you think this is good policy or not: the DCC is a judicially created free trade policy that is not textually based. One could certainly imagine the United States where the individual states have more commercial autonomy and can favor internal manufacture over outside manufacture... and there is nothing textual in the Constitution that prohibits the behavior. But, for better or worse, the Supreme Court (conservative AND liberal) embrace the DCC as if it were the First Amendment.

The question for the Court is whether the 21st Amendment abrogates the DCC such that States may discriminate against outside wineries. Five justices, in a coalition that cross all sorts of ideological lines, said the 21st Amendment does NOT abrogate the DCC, and the remaining four disagree. I happen to agree with the dissent on this issue.

Let's assume for a moment that the drafters of the 21st Amendment wanted to grant to the states every possible authority over the sale of liquor within their boarders. How would such a clause read differently from the present 21st? I suggest it would be identical because that was the intent of the authors of the 21st Amendment. Yes, federal prohibition had failed and the nation was ready to end it... but the temperance movement was still strong in many places and would have wanted to provide the necessary tools to state to regulate alcohol as they saw fit.

What the majority has done is read Section 2 right out of the Constitution. States don't require any additional authority beyond their standard police powers to end all direct to consumer liquor sales, and health standards have long been the provice of state government. The drafters of the 21st Amendment could have left Section 2 out altogether and we would be exactly where we are today. No, I think the court made a mistake here by failing to find meaning in the Constitution, ignoring history, and continue to push the judicial policy choice of the DCC.

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