A Stitch in Haste

(Hey, everyone else is making bad puns, so why-oh-wine can't I? )

Volokh drone Todd Zywicki, by way of Reason Out of Control:

The bottom line is that the 21st Amendment was designed to repeal the 18th Amendment and to remove the federal government from meddling in local police power affairs and to protect dry states from the possible repeal or overturn of the Webb-Kenyon Act. There is nothing to indicate that it was designed to give a novel and unnecessary power to the state governments to erect protectionist barriers to interstate commerce or to allow wet states to engage in economic warfare with the products of other wet states.

Nothing, of course, except the plain language of the amendment:

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.

If the Dormant Commerce Clause (which is not even in the text of the Constitution) was so important to the drafters of the Twenty-First Amendment, then why did they not simply add another section:

No part of this Amendment shall be construed, however, as granting any State the power to act in contravention of Article I, Section 8, Clause 3 of this Constitution.

If conservative legal scholars (I refuse to call them "strict constructionists") can so easily focus on what isn't in the Constitution (e.g., a right to privacy), then they should do so consistently. Either take the document at face value or don't (I would prefer that they did).

To argue that the Dormant Commerce Clause summarily trumps the plain language of the Twenty-First Amendment effectively relegates that Amendment to "inkblot" status. We have seen how unfortunate such constitutional pretzel-twisting can be to individual rights. Libertarians should never endorse it.

Related Posts:
Whining About Wine
How to Read the Constitution

SCOTUSblog is reporting that the Supreme Court has struck down the two state laws that banned the direct sale of wine to consumers from out-of-state wineries (particularly over the Internet). SCOTUSblog also has the links to the opinions here.

The cases were interesting in that they pitted two constitutional provisions against each other: the plain language of the Twenty-First Amendment (repealing Prohibition) and the non-existent language of the so-called Dormant Commerce Clause (prohibiting states from unduly burdening out-of-state competitors).

I was on the wrong side of the debate, but then again it was 5-4, so I'm not embarrassed. Hopefully the split means that plain-language textualism is making a comeback. I look forward to reading the opinions.

Yes, from a libertarian perspective it's "neat-o" that New Yorkers such as myself can now buy out-of-state wine directly over the Internet. But far more "neat-o" is the idea that the Constitution "means what it says and says what it means."

Salut!

UPDATE: Apparently the split was Justice Kennedy writing the majority for Scalia, Souter, Ginsburg, and Breyer. The dissent was written by Justice Thomas for Rehnquist, O'Connor and Stevens. Scalia on the same side as Kennedy but not the same side as Thomas? Will wonders never cease? Stevens also wrote a very short separate dissent.

Mike at Crime & Federalism highlights a key part of the majority opinion in the Internet wine cases:

States have broad power to regulate liquor under §2 of the Twenty-first Amendment. This power, however, does not allow States to ban, or severely limit, the direct shipment of out-of-state wine while simultaneously authorizing direct shipment by in-state producers.

So "broad" doesn't really mean broad at all. It means "sorta kinda broad," or only as broad as the Court wants it to mean, or only so broad as to not conflict with doctrines held, for the time being, to be sacrosanct even though they are not expressly enumerated anywhere in the Constitution (there's a reason why it's called the Dormant Commerce Clause). The Court has now granted itself the right to elevate implicit doctrine over explicit text under this new Jurisprudence of "Sorta Kinda."

I hope all these backflipping, high-fiving, cork-popping libertarians keep that in mind when the Supreme Court hands down its decision in the pending eminent domain case, Kelo v. New London. It might read something like this:

Individuals have a broad right to own property under the Fifth Amendment. This right, however, does not prevent States from seizing, or severely limiting the direct use of, property while simultaneously authorizing private-to-private takings as a "public use."

Because, under this supposedly "pro-libertarian" Internet wine ruling, "public use" could now easily mean, not "public use" at all, but "sorta kinda public use."

Who'll be popping corks then?

"Gonna cry in your [Internet-purchased wine], but don't come bitchin' to me..."
-–Billy Joel (sorta kinda)