The Supreme Court is hearing arguments in the wine shipping cases today. I’ve already talked about this before, so today I’ll just offer a summary of what I perceive as fundamental points.
The conflict is between wineries, who would like to ship wine directly to consumers, and state governments (like New York and Michigan) that have prohibited direct shipments from out-of-state wineries. The laws in question are discriminatory, since they do not prohibit direct shipments by in-state wineries. The states have offered various justifications for their restrictions on shipments (the need to prevent access by minors, the need to enforce tax laws, etc.), but – and here’s the key point – all of these arguments apply just as forcefully to in-state as out-of-state shipments, so they cannot justify a prohibition on out-of-state shipments alone. Indeed, the discriminatory character of the laws is so patently obvious that, if the product were anything besides alcohol, the wineries would have a slam-dunk case on Commerce Clause grounds. Under the standard interpretation of the Commerce Clause, state laws that discriminate against out-of-state goods are unconstitutional.
The hitch is Section 2 of the 21st Amendment. The Amendment repealed Prohibition, but Section 2 assured individual states of the power to continue to regulate alcohol within their borders. So the question is, does Section 2 of the 21st Amendment create a loophole in the Commerce Clause? Here, the states have a seemingly reasonable argument: the plain language of the 21st Amendment doesn’t make any exceptions. It says, “The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”
But there is a serious problem with the plain language argument, which I first heard from Todd Zywicki: if you assume the language of the 21st Amendment creates an exception to any earlier portion of the Constitution, then you can’t limit that exception to the Commerce Clause. Since the Amendment doesn’t specifically mention the Commerce Clause or any other prior constitutional text, the exception must apply to everything prior, including (for instance) the 14th Amendment’s equal protection clause. A state could ban the shipment of alcohol to black-owned businesses, for instance.
This is a devastating objection, and I don’t see any logical way for the Supreme Court to overcome it. Either they adopt a plain-language reading in which the 21st Amendment creates an exception to everything prior, or they abandon plain language and admit that the 21st Amendment must interact with earlier text in the Constitution. And if they go this route, the clear and obvious way to reconcile the two is to say states have the power to regulate alcohol so long as they don’t discriminate against alcohol based on its state of origin.