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I
believe that a recent Sixth Circuit case struck down a discriminatory direct
shipment law; a ban on direct shipment might be ok, but not a discriminatory
law, which allows direct shipment by instaters but not out of staters.... I seem
to recall that that was the rationale... JFB
There has been some recent attention to the
constitutionality of
state laws that prohibit the direct shipment of
alcoholic beverages.
On one side are Kenneth Starr and Clint Bolick,
defending the interests
of the winery-backed "Coalition for Free
Trade" and on the other
side are Robert Bork and C. Boyden Gray,
representing, among others,
the "Wine and Spirits Wholesalers of
America."
The central question seems to be: Which deserves
precedence, the spirit
of free trade protected by the Commerce Clause or
states' rights as
defined by the 21st Amendment? The state
rules and regulations on
the shipment of alcohol are incredibly complex
and put the wineries at
a distinct disadvantage in that, for example,
California producers cannot
ship to many states, though wineries within
those states can ship to internal
addresses. But the
other side counters with the fact that alcohol--perhaps
like
"death"--is "different" in that it has its own amendment
which was
meant to allow the states to make such decisions and set such
regulations
on their own terms. And, I probably don't need to
add, there is a
tremendous amount of money to be gained--or lost--on
both sides of this
issue.
I know that the 7th Circut
recently upheld Indiana's direct shipping law and
I have heard that some
expect that this issue will reach the Supremes at
some point. I am
going to be discussing this issue in class (yes, I am deliberately
using
an alcohol-related issue to bolster my undergraduates' interest in
Constitutional Law) and I would appreciate the insights of
list-members--on or
off list as you so desire.
Best,
Brian
Pinaire
************************************
Assistant Professor
Dept. of Political Science
Lehigh University
David
Bernstein wrote:
I don't think Lochner was about reining in interest group politics,
and it certainly wasn't understood that way in the post-New Deal era
until Howard's book. Rather, Lochner was about, and was understood to be
about, protecting fundamental liberties from
unreasonable government interference (I have a forthcoming
Georgetown Law Journal article on this, available at SSRN).
Justice Souter has commented that Meyer and Pierce were right, and
Lochner was wrong, only because the Court was incorrect in thinking that
liberty of contract deserves protection as a fundamental right, not
in abstracting fundamental rights from the due process clause. In
that sense, Lochner has in fact not been overruled, but has indeed been
resurrected in the Court's modern substantive due process jurisprudence,
of which Lawrence v. Texas is both the most recent and the clearest
example.
In a message dated 10/30/2003 12:50:54 PM Eastern Standard Time, [EMAIL PROTECTED]
writes: This is an interesting question. As Howard notes,
one can overrule the
holding in Lochner without rejecting the
premise that courts should serve
as active monitors of what is
increasingly becoming an interest-group
polity characterized by
attempting to capture the machinery of government
in order to
reward one's friends 9i.e., seek otherwise illegitimate
rents)
and hinder one's adversaries. In some sense, that
doesn't get overturned
(assuming it has been) until such cases as
Williamson and Hawaii v.
Midkiff, where the court establishes a
basically non-rebuttable presumption
that whatever a legislature
says is "the public interest" just is, by
virtue of
that assertion, dispositive with regard to a reviewing court.
I
begin my course on the welfare state by asking students to read
UAW v. Lyng
and ask whether it matters (or should matter) that
the court is persuaded
that Congress is engaged in a good faith
effort to "level the playing
field" (by barring food
stamps to strikers) as against intervening in a
class war on the
said of management against labor. If one believes that
it
does matter--i.e., that one must demonstrate a good faith
belief that it
serves the public interest (and how exactly does
one do this), then Lochner
is still alive and well. Indeed,
isn't the present litigation attacking
blatantly partisan
gerrymandering Lochnerish? Tom DeLay has no conception
of
"neutrality" and "fairness." He is out to
use all of the power at his
command to marginalize the Democratic
Party (which he, of course, insists
on calling the
"Democrat" Party), just as Phil Burton, in California,
used
all the power at his command to do the same to California
Republicans in
the 1980s. Now one can, I suppose, argue
that enhancing the Republican (or
Democratic) Party just *is* to
enhance the public welfare. Must a court
believe this, or
can a court simply say "To the victor belongs
the
spoils. That's what politics is really about, and the
Constitution puts
few limits on the ability of the winning
majority to loot the treasury or
stack the political process in
their favor."
sandy
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