Posted by Todd Zywicki: WINE WARS, PART 10�PROPOSED BUT NOT ENACTED §3 OF THE 21ST AMENDMENT:
The contemporaneous debates in Congress over the proposed but never enacted �3 of the 21st Amendment further indicate that the purpose of �2 was to restore the constitutional balance disrupted by the 18th Amendment by returning local police power authority to the states, but not to grant to the states new powers to interfere with federal authority over interstate commerce. Defenders of state alcohol protectionism have relied heavily on the defeat of this section as well as the debates surrounding it to suggest that it evidences an intent of Congress to give wet states a sword to engage in economic warfare against one another, as opposed to simply giving dry states a shield to protect themselves against being forced to tolerate evasions of their alcohol regimes. As a result, even though it was never enacted, it is an important part of the 21st Amendment debate. Again, the entire thrust of the debate over �3 was whether the states would have sole control over local affairs governing alcohol, neither �3 itself nor the debates over it pertain to whether the states would be given new unprecedented, unjustified, and unnecessary powers to regulate interstate commerce, but merely to constitutionalize the Wilson Act and Webb-Kenyon, thereby enabling the states to apply their police power regulations on the same terms to alcohol shipped in interstate commerce equally as to alcohol produced inside the state. Proposed �3 of the 21st Amendment read: "Congress shall have concurrent power to regulate or prohibit the sale of intoxicating liquors to be drunk on the premises where sold." 76 Cong. Rec. 4141. This provision would have given the federal government concurrent power with the states to regulate saloons. Id. (Statement of Sen. Blaine). Notwithstanding this enumeration of "concurrent" power, however, the operation of the Supremacy Clause meant that federal law would prevail in the event of conflict. Id. at 4143 (Statement of Sen. Wagner). Critics of �3 objected that this intermingling of state and national authority was precisely the source of the problems that plagued effective enforcement of national Prohibition under the 18th Amendment in that it encouraged federal meddling in wholly local police power affairs governing alcohol. See [1]Part 8. Senator Wagner similarly observed, "The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility. No law can live unless it finds lodgment in the public conscience and is nourished by public support." As Senator Wagner observed in his criticism of proposed �3, the purpose of the 21st Amendment was to "restore the constitutional balance of power and authority in our Federal system which [had] been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution." Cong. Rec. at 4144 (Statement of Sen. Wagner). By contrast, �3 would give to the federal government a new power that it lacked prior to the enactment of Prohibition-what would amount to a general police power authority to regulate in the area of saloons, an intrastate transaction that Congress otherwise would have been unable to reach under the prevailing interpretation of the Commerce Clause during that era. The federal government has no independent police power authority (as most recently noted in Lopez), and could not likely have regulated the purely local transactions described in �3 under the prevailing interpretation of the Commerce Clause at that time, A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542-548 (1935). As a result, the deletion of �3 was sufficient to remove the federal government from conflict with the states' intrastate police power. Senator Wagner noted that while the 21st Amendment as proposed "pretends to restore to the States responsibility for their local liquor problems," because of proposed �3, it "does not in fact repeal the inherently false philosophy of the eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed ...." Cong. Rec. at 4144 (Statement of Sen. Wagner); see also id. at 4147 (noting that �3 could enable Congress to comprehensively regulate local issues related to saloons). As a result of �3, the 21st Amendment would "expel[] the system of national control through the front door of section 1 and readmit[] it forthwith through the back door of section 3." Id. at 4147. Because proposed �3 was inconsistent with the goal of restoring the pre-18th Amendment constitutional balance, it was deleted. Just as the grant of a new power to Congress to effectively engage in police power regulation of saloons was considered an undesirable departure from the pre-Prohibition constitutional balance, so too would an unprecedented plenary power of the states to impose discriminatory barriers to interstate commerce. Thus, �3 would not merely have been a minor incursion on absolute state power over all aspects of liquor sales and importation. Rather, it was an incursion of a specific kind--it would have retained the de facto federal police power of the 18th Amendment that had proven so disastrous as both a policy and a constitutional principle. Note that if it were true that �2 gives the states plenary power over interstate commerce in alcohol, then if �3 had been enacted it would have created a regime where the states regulated interstate commerce in alcohol and the federal government would have regulated the local operations of saloons (due to its primacy under the supremacy clause). It is a far more plausible interpretation of �2 and �3 together that the former provision meant to restore the traditional constitutional balance and the latter was inconsistent with this goal. References 1. http://volokh.com/archives/archive_2004_08_21.shtml#1093273065 _______________________________________________ Volokh mailing list [EMAIL PROTECTED] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
