Don’t pull that cork — yet

As silly as it may be in this age of Internet commerce, 24 states ban direct shipment of wine by out-of-state wineries. Three actually consider it a felony. Pursuant to a case the Supreme Court heard on Tuesday, it must decide if these state bans on direct-shipment of wine — wine that is shipped directly from the vineyard to the consumer — is constitutional. The case itself delves into a nasty tangle of constitutional intrepretation that should not be dismissed solely as a question of right vs. wrong.

Not surprisingly, for oenophiles and free traders, the case is quite simple: States should not be allowed to ban interstate shipments of wine while allowing intrastate shipments. They argue that the ban violates the dormant Commerce Clause of the Constitution, which gives Congress sole authority to regulate interstate commerce. Although we are always in favor of preserving free trade between the states, this is not a question of what is the right policy solution. Rather, it’s a question of what is constitutionally right.

The 21st Amendment, which ended Prohibition, provides in Section 2, “The transportation or importation into any State … for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.” In other words, argue the states that ban direct shipment, the plain language of Section 2 allows states to regulate the “transportation or importation” of alcohol in any way they like. While this might seem ridiculous, the advent of Internet commerce should not trump rights explicitly granted to the states by the 21st Amendment.

But as Todd Zywicki, a George Mason Law School professor, points out in “Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine,” there are a few problems with this interpretation. First, Section 2 never mentions the dormant Commerce Clause. To believe that Section 2 only refers to the Commerce Clause is not only a distortion of the intent of Section 2, but goes against prior court interpretations of what Section 2 actually grants to the states. Mr. Zywicki refers to a 1964 ruling that said, “To conclude that the Twenty-first Amendment has somehow operated to ‘repeal’ the Commerce Clause wherever regulation of intoxicating liquors is concerned would … be an absurd oversimplification.” Further, the intent of the entire 21st Amendment was to return the country to the careful balance of state alcohol regulation it enjoyed before Prohibition. It was not meant to give the states protectionist powers over their alcohol industries, as it is now being used.

Yet, despite the obvious benefits, it would be a fairly clear example of judicial activism for the court to rule in favor of consumers only because their case makes good policy sense. If a proper reading of the 21st Amendment finds that it in fact does repeal portions of the Commerce Clause, it would a far better precedent than if the court simply revoked a constitutional state right. As with all judicial rulings, the goal is not to legislate, but to interpret.

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