Posted by Todd Zywicki: Wine Case: http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116365050
I don't really have much to add, except that the majority got it exactly right in this case in its analysis of the dormant Commerce Clause, 21st Amendment, and policy considerations. The reasoning seems virtually identical to the [1]articles I have written on this, so I won't belabor it here. As for Kennedy, I think the best explanation is that when push comes to shove, he decided this case (and perhaps others) on the basis of his own personal intuitions of what is right or wrong, or makes sense, and he plainly saw that these laws simply make no sense. I think the fact that he both opens and closes with a discussion of the [2]FTC Report and stresses the complete lack of any empirical evidence submitted by the states suggests that in the end he simply cannot see that the Constitution would compel the preposterous result of permitting hundreds of in-state wineries to ship, but not out-of-state, especially with no evidence of anything but naked discrimination to support it. Not the most edifying constitutional theory, but I think that is what is animating his opinion. [3]Bainbridge and [4]Ribstein also offer realist takes on it. As for O'Connor, Stevens, and Rehnquist--one should not be surprised by them. They have adhered to the same interpretation of the 21st Amendment, O'Connor even moreso than the others, for going on 20 years now, and have refused to change their minds. Justice Stevens's "Abe Simpson" style of dissent is a new one though--who needs empirical evidence when you can just sit back and rely on personal reminiscences from your days as a child in Chicago. Of course, despite this, Stevens still missed the real point of the 21st Amendment and the demise of Prohibition--namely, that it was intended to withdraw the federal government from meddling in local regulation of alcohol, not to empower the states to engage in economic warfare against the products of other states. Unlike others, I am not at all surprised by Scalia. He has long distinguished between the nondiscrimination prong of the dormant commerce clause versus the Pike balancing test. The former is clearly part of the structure and history of the Constitution. It is much less clear that the latter is part of the Constitution (except as a proxy for ferreting out discrimination). Scalia has long supported the former but not the latter. Thomas seems much more conflicted about this. In Camps Newfound, he seems to support the nondiscrimination principle, rooting it in the Export-Import Clause. But he subsequently seems less sure. It is interesting that his opinion does not discuss the dormant commerce clause, but instead goes straight from the statutory grounds he would have used to decide the case (under the Webb-Kenyon Act), to the 21st Amendment, with little discussion of the dormant commerce clause. This case also is important beyond wine. By dissing New York's "physical presence" argument, the Court thankfully reasserted the ancient principle that a law does not become nondiscriminatory against out-of-staters simply by permitting them an option to become in-staters. In so doing, the Court saved the entire fabric of e-commerce in the country. Finally, the case is important in reasserting the need for states to come forward with actual evidence to support their discriminatory regulatory regimes. Hand-waving and posturing is not a substitute for evidence, and the evidence here plainly reinforced Kennedy's common sense as to the absurdity of these laws. References 1. http://www.volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116253716 2. http://www.ftc.gov/opa/2003/07/wine.htm 3. http://www.professorbainbridge.com/2005/05/supreme_court_s.html 4. http://busmovie.typepad.com/ideoblog/2005/05/the_wine_decisi.html _______________________________________________ Volokh mailing list [email protected] http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
