Functional Repeal!

The case of whether to allow interstate wine sales over the internet (I simplify here) was argued in the Supreme Court yesterday. The Times coverage shows promise that the 21st Amendment will be fuctionally repealed (perhaps bad if you care about small things like “separation of powers,” but good if you want to buy sweet California hooch online!):

If the Supreme Court argument Tuesday on interstate wine sales proves to be a reliable roadmap to the eventual decision, consumers who want to order wine directly from out-of-state wineries will soon be able to do so with the court’s blessing.

The justices appeared notably unmoved by the arguments offered by New York and Michigan in defense of laws that prohibit the direct shipment of wine from other states while permitting in-state wineries to ship their products to their customers’ homes.

Slate’s Dahlia Lithwick sort of summarizes the oral arguments and offers a pretty coherent explanation of the issues:

Today’s case before the Supreme Court looks incredibly interesting at first glance. After a drink, it looks unbearably boring. Weirdly, after three more drinks, it starts to look interesting again. Like that guy at the Sigma Nu Party sophomore year. Still, one’s tempted to remind all the wine-o-philes who have shown up today that this case is going to be about the dormant “commerce clause.” The words “impudent little Zinfandel” will trip off nobody’s tongue today.

Michigan and New York allow their respective in-state wineries to ship their wines directly to customers. Both states make it virtually impossible for out-of-state vineyards to do the same. So, that was the interesting part. The states justify their tough-on-wine stance by stating that wine is different from other products that properly move about freely in interstate commerce. And they find textual justification for this idea in the 21st Amendment, which provides that “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.” The 21st Amendment effectively repealed Prohibition in 1933, and for a time the courts treated it as though it gave the states power to regulate any and all alcohol, for any and all reasons, unencumbered by the commerce clause or any other discernible legal doctrine.

The commerce clause, or more precisely today, the unwritten or “dormant” part of the commerce clause, is a fuzzy little doctrine that bars states from enacting protectionist, discriminatory measures against interstate commercial activity. That was the deadly boring part. Things liven up again when you understand that this case comes down to two weird constitutional doctrines duking it out for world dominance and that everything will turn on whether you read the 21st Amendment as more compelling than the commerce clause or less so.

See also: Todd Zywicki’s Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine; a better summary of oral arguments; and even more commentary along with a link featuring some relevant cases (.doc file).