Importation Of Liquor Into A State

[softwareNerd]

Two states were not allowing internet purchase of liquor from "out of state" sites. The case went to the Supreme Court. The court struck down these state laws.

This is good. At first, I also thought that this was the constitutionally-correct decision. However, after re-reading the relevant amendments I think differently: while a good thing, the decision appears to violate the intent of the amendments.

Here is the relevant text of article 21 (1933):

Sec 1: The 18th article ... is hereby repealed.

Sec 2: The transportation or importation into any State...for the delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.

Sec 3: ... ...

At least as a "legal layman", I interpret this as clear intent to allow a state to make laws about importation of liquor. This makes it an explicit override of the ban against putting restrictions on inter-state trade. I do not agree with the amendment, but I think it cannot be much clearer.

My question is: Am I wrong? Have the justices interpreted the intent correctly?

[BurgessLau]

I see one remote possibility. Section 2 is saying that state legislatures cannot ban the importation of liquor for use in certain ways that are legal for in-state liquor.

In other words, no double standards. How the liquor gets here should not be the issue, because that interferes with trade, but you, the state legislators, can control or even ban all liquor, but even-handedly regardless of its source.

Edited May 21, 2005 by BurgessLau

[softwareNerd]

Yes, I see your point, thank you.

A background reading would likely show that the intent of the amendment was not transportation and importation as such. The intent was state-specific prohibition. The amendment enables a state to enforce state-wide prohibition. It is not an invitation to state-level mercantilism.

[DavidOdden]

At least as a "legal layman", I interpret this as clear intent to allow a state to make laws about importation of liquor. This makes it an explicit override of the ban against putting restrictions on inter-state trade. I do not agree with the amendment, but I think it cannot be much clearer.

My question is: Am I wrong? Have the justices interpreted the intent correctly?

The issue of "intent" versus actual statements is the big issue, really. It is interesting that Scalia came down in favor of the decision and Thomas and Rehnquist dissented. The SCOTUS decision is a masterpiece of word-slinging, on both sides. The plain language of the 21st Amendment could indeed be read to allow the possibility that a state can prohibit any importation of alcoholic beverages. But since the wording does not clearly say something like "Any state may pass any law regulating importation of alcohol that it wants", then there is no obligation to read the Amendment that way. The point here is that there's a principle of "lenity" which, in this case, would say that the law should be construed in favor of the citizen, when it is not completely clear on a point. In order for the Commerce Clause to be repealed or limited, it must be explicitly repealed, which it was not.

The essence of the argument is precedent, especially a persistent pattern of upholding the Commerce Clause, which the Framers intended to prevent Balkanization (SCOTUS phrasing, not Framer phrasing). I think the evidence is compelling that access to markets is a fundamental principle of Constitutional law. It is beyond question that prior to Prohibition, it was unconstitutional to restrict interstate sale of alcohol. Here are some bits of the SCOTUS decision, starting from p. 21

The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time...

the Court has held that state laws that violate other provisions of the Constitution are not saved by the Twenty-first Amendment....

The argument that “the Twenty-first Amendment has somehow operated to ‘repeal’ the Commerce Clause” for alcoholic beverages has been rejected....

The Court has held that state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause....

...The central purpose of the [Amendment] was not to empower States to favor local liquor industries by erecting barriers to competition.

What the 21st Amendment says is, if a state makes a law -- as long as the law is constitutionally sustainable -- then the Amendment allows the prohibition of such alcohol. But the law has to be constitutionally sustainable, and those laws of Michigan etc. are blatantly in violation of the Commerce Clause.

[Eric Mathis]

But since the wording does not clearly say something like "Any state may pass any law regulating importation of alcohol that it wants", then there is no obligation to read the Amendment that way.

The wording of the 21st Amendment is unambiguous: “the importation . . . of intoxicating liquors” into states “in violation of the laws thereof is hereby prohibited.” To qualify for protection under this amendment, all a state needs is a single law that restricts the importing of alcohol.

The point here is that there's a principle of "lenity" which, in this case, would say that the law should be construed in favor of the citizen, when it is not completely clear on a point.

And where is this principle written in the Constitution?

In order for the Commerce Clause to be repealed or limited, it must be explicitly repealed, which it was not.

Not true. If that were the case, then U.S. Senators would still be elected by state legislatures. Amendment 17 does not explicitly repeal Article I, Section 3.

I think the evidence is compelling that access to markets is a fundamental principle of Constitutional law.

If that were the case, then Congress would have been prohibited from imposing tariffs. Moreover, Scott Trask argues that the intent of the Constitution was not to do away state tariffs, which were never significant, but to keep states from establishing free trade relations with foreign countries to the detriment of protected industries in the U.S. See http://www.mises.org/story/1296

What the 21st Amendment says is, if a state makes a law -- as long as the law is constitutionally sustainable -- then the Amendment allows the prohibition of such alcohol. But the law has to be constitutionally sustainable, and those laws of Michigan etc. are blatantly in violation of the Commerce Clause.

Since Amendment 21 was adopted some 146 years after the Commerce Clause was ratified, how would state prohibitions on importation of intoxicating liquors not be constitutionally sustainable? The constitutionality is set forth unequivocally in Section 2 of the amendment.

[DavidOdden]

The wording of the 21st Amendment is unambiguous: “the importation . . . of intoxicating liquors” into states “in violation of the laws thereof is hereby prohibited.”  To qualify for protection under this amendment, all a state needs is a single law that restricts the importing of alcohol.

It goes without saying (although it apparently need to be said to you) that any such law must actually be valid, i.e. not unconstitutional. That would mean, for example, that a "law" which prohibits the importation of liquor if it is sold to blacks would be unconstitutional (you know why, right?), and a "law" that violates the Commerce Clause is not a law, either. The 21st Amendment says, if you have a law, meaning an actual, valid law and not some unconstitutional declaration in the code books, then importation in violation of that law is prohibited. These meta-principles are not written into the Constitution, and they don't need to be. We aren't living in France or Germany with their painfully articulated legal codes that give you laws for each and every action you may legally undertake.

Since Amendment 21 was adopted some 146 years after the Commerce Clause was ratified, how would state prohibitions on importation of intoxicating liquors not be constitutionally sustainable?

Since time is irrelevant. The commerce clause is still legally valid, even today. The 21st amendment does not say that states may pass any law whatsoever to prohibit importation of alcohol. If it had said that -- effectively repealing the entire Constitution with respect to liquor -- then such an unconstitutional law would be allowed. Otherwise, the law itself has to be constitutional, in order to be a law.

[Eric Mathis]

It goes without saying (although it apparently need to be said to you) that any such law must actually be valid, i.e. not unconstitutional. That would mean, for example, that a "law" which prohibits the importation of liquor if it is sold to blacks would be unconstitutional (you know why, right?), and a "law" that violates the Commerce Clause is not a law, either. The 21st Amendment says, if you have a law, meaning an actual, valid law and not some unconstitutional declaration in the code books, then importation in violation of that law is prohibited.

As I said before, since the 21st Amendment comes after the Commerce Clause, it supersedes that clause in any respect having to do with intoxicating liquors. And since the amendment explicitly refers to state laws regulating the importation of such liquors, it unambiguously establishes the constitutionality of such laws.

These meta-principles are not written into the Constitution, and they don't need to be. We aren't living in France or Germany with their painfully articulated legal codes that give you laws for each and every action you may legally undertake.Since time is irrelevant.

Ah, unwritten meta-principles. Perhaps FDR was operating under a such meta-principle when he attempted to pack the Supreme Court.

The commerce clause is still legally valid, even today. The 21st amendment does not say that states may pass any law whatsoever to prohibit importation of alcohol. If it had said that -- effectively repealing the entire Constitution with respect to liquor -- then such an unconstitutional law would be allowed. Otherwise, the law itself has to be constitutional, in order to be a law.

No one said that the Commerce Clause is invalid. But a provision of the Constitution can be modified by an amendment. For example, Article I, Sec. 3 is still valid with regard to the number of Senators per state and their term of office. It is no longer valid with respect to how those Senators are chosen. Amendment 17 altered the specific portion of Sec. 3 that governed selection of Senators. The same may be said of Amendment 21 with regard to the power of Congress to regulate commerce among the states. Congress still has that power but not with respect to state regulation of liquor imports.