Posted by Todd Zywicki:
Justice Abraham Simpson Stevens:
http://volokh.com/archives/archive_2005_05_15-2005_05_21.shtml#1116367567
One more point on the dissent of Justice Abraham Simpson Stevens in
the wine case--his [1]dissent in the wine case is truly one of the
more idiosyncratic opinions I recall reading.
Is that me and my colleagues at the FTC he has in mind in referring to
those youngins engaged in this newfangled policy analysis?
Today many Americans, paricularly those members of the yonger
generations who make policy decisions, regard alcohol as an
ordinary article of commerce, subject to substantially the same
market and legal controls as other consumer products.
Oh these kids today with their fancy wines and "rock and roll"
music.... In my day we didn't have no "Merlot" or "Pinot Gris"--we
drank Heilemann's and, by george, we liked it!
He goes on to add a canon of law with which I am not familiar:
The views of judges who lived through the debates that led to the
ratification of those Amendments are entitled to special deference.
Foremost among them was Justice Brandeis, whose understanding of a
State's right to discriminate in its regulation of out-of-state
alcohol could not have been clearer.
Is this a real canon of law? He cites no authority for this novel
"respect your elders" canon of construction, so I am not sure what to
make of it. Does it apply to statutes as well? If a judge lived
through the enactment of the Clean Air Act, does that mean he is
entitled to greater deference because he remembers Pittsburgh in the
1950s?
But there is another, more important reason, why Brandeis's
recollections of the 21st Amendment are largely irrelevant. In the
same opinion that Stevens points to, the Young's Market case, Brandeis
also expresses the view that the 21st Amendment also made the 14th
Amendment's Equal Protection Clause inapplicable to alcohol
regulations. Stevens notes that many of the state laws enacted after
the 21st Amendment were discriminatory--but they also violated the 1st
Amendment, Due Process Clause, and other assorted provisions of the
Constitution. So unless Stevens is willing to say that states can
permit sale of alcohol only to whites and not to blacks, or to
prohibit the sale of only sacramental or kosher wine, it is hard to
see that this particular argument gets him very far.
A very peculiar opinion.
References
1. http://scotus.ap.org/scotus/03-1116p.zd.pdf
_______________________________________________
Volokh mailing list
[email protected]
http://highsorcery.com/cgi-bin/mailman/listinfo/volokh
