Posted by Todd Zywicki: WINE WARS, PART 4--PURPOSE OF THE 21ST AMENDMENT: As noted in prior posts (see archives from last week), there is no reasonable policy defense for discriminatory bans on interstate direct shipment of wine, the plain language of the 21st Amendment does not authorize discriminatory bans, and the dormant Commerce Clause does not automatically yield to other constitutional provisions, such as the 21st Amendment. This means that the effect of the 21st Amendment on the wine direct shipping debate must be found in the historical context of the 21st Amendment, which will be the focus of the next several postings on the topic. The purpose of the 21st Amendment was to restore the constitutional and legal balance that was interrupted by the enactment of the 18th Amendment imposing federal prohibition. Under that regime, the states had the power under their general police power to regulate the distribution and sale of alcohol within their boundaries and Congress had used its Commerce power to enact several laws that eliminated a peculiar "reverse discrimination" that had been caused by several Supreme Court decisions that had forced dry states to admit imports of alcohol produced in other states. The states police power, however, did not extend to interference with interstate commerce--as it was expressly well-established that the states' power to regulate alcohol under their police power authority did not authorize them to erect discriminatory barriers to interstate commerce. Thus, the states could impose restrictions on the manufacture, sale, and consumption of alcohol, but these rules were required to be imposed in an even-handed manner on all products regardless of state of origin. This state police power was buttressed by the Wilson Act and Webb-Kenyon Act, which were enacted by Congress pursuant to its police power to enable dry states from being forced to accept imports from out-of-state, as was the case under the then-prevailing Commerce Clause jurisprudence of the Supreme Court. Thus, the purpose of the 21st Amendment was intended to prevent dry states from being forced to discriminate in favor of interstate commerce, not to authorize wet states to erect protectionist barriers against the products of other wet states. The 21st Amendment, in turn, constitutionalized this legal regime and restored the pre-18th Amendment constituional balance. First, it withdrew the federal government from the field of local police power regulation into which it had essentially strayed under the 18th Amendment regime. Second, it restored to the states exclusive police power authority. Third, it constitutionalized the Wilson and Webb-Kenyon Acts, which as will be seen, permitted the states to exclude the sale of out-of-state alcohol on the same terms as in-state alcohol, essentially subjecting out-of-state alcohol to the same police power regulations applied to in-state. Fourth, it retained the long-standing ban on using the police power to erect protectionist barriers against out-of-state products. It is absurd to think that the framers of the 21st Amendment intended to grant wet states the power to unilaterally block the importation and sale by out-of-state producers on the same terms as in-state producers of the identical products. Not only is it absurd, but the historical context that culminated in the ratification of the 21st Amendment, as well as the overwhelming body of legislative history on point leads to this conclusion. Incidentally, it is often argued that the purpose of the 21st Amendment was to allow "dry states to stay dry." I personally don't think this fully captures the intent of the Amendment, because it appears to me that it would allow wet states to regulate other aspects of alcohol pursuant to its police power and to impose those same requirements on out-of-state sellers as well. Thus, for instance, the state could establish a minimum age for purchasing alcohol and apply that in an even-handed fashion to both in-state and out-of-state sellers. Thus, the 21st Amendment probably reaches regulation beyond the mere binary decision whether to stay dry completely, but instead permits an even-handed exercise of the state's police powers to extend to products shipped in interstate commerce.
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