Granholm v. Heald: Good policy, bad law

By Robert S. Sargent, Jr.
web posted May 23, 2005

The Congress shall have power…to regulate
commerce…among the several States…U.S. Constitution,
Article I, Sec. 8. (1787)

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. 21st Amendment to the Constitution. (1933)

Last Monday, the Supreme Court, in Granholm v. Heald, held
that any state (specifically New York and Michigan) that allows
in-state, but not out-of-state wineries to sell directly to
consumers, "discriminates against interstate commerce." And,
"...that discrimination is neither authorized nor permitted by the
Twenty-first Amendment."

What does this mean? It means that the laws of states like New
York, that allows in-state, but not out-of-state deliveries, are
struck down. Unless they strike down their own in-state laws,
wine lovers can lick their chops as they contemplate ordering
wine over the internet, or going to an out-of-state winery and
shipping their favorite wine home. I love it that the three-tier
system (producers to wholesalers to retailers) is being
challenged. But I hate it that it's being resolved in the courts.

Anthony Kennedy wrote the majority opinion, and he continues
to demonstrate his weakness as a Justice. To support his view,
Kennedy cites laws that were passed prior to the Amendment
(for example, the Webb-Kenyon Act of 1913). Then dismissing
State Bd. of Equalization v. Young's Market, which upheld
interstate discrimination in 1936, Kennedy wrote: "Cases
decided soon after the Twenty-first Amendment's ratification did
not take account of the underlying history." I thought
Amendments trumped what came before!

All one has to do is read the words: "The Transportation or
importation into any state…" Those words specifically address
commerce, meaning that the Commerce Clause does not apply
when "intoxicating liquors" are the issue.

There were two dissents, one written by Justice Stevens, joined
by O'Connor, and one written by Thomas, joined by Stevens,
O'Connor, and Rehnquist. Stevens is short and to the point:
"Because the New York and Michigan laws regulate the
‘transportation or importation' of ‘intoxicating liquors' for
‘delivery or use therein,' they are exempt from dormant
Commerce Clause scrutiny." Stevens argues that "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:

	‘The plaintiffs ask us to limit (the Amendment's) broad
	command. They request 	us to construe the Amendment
	as saying, in effect: The State may prohibit the 	importation
	of intoxicating liquors provided it prohibits the manufacture
	and sale 	within its borders; but if it permits such
	manufacture and sale, it must let imported 	liquors compete
	with the domestic on equal terms. To say that, would
	involve not 	a construction of the Amendment, but a
	rewriting of it…'" State Board of 	Equalization v.
	Young's Market.

Exactly what Kennedy did: He rewrote it. As Justice Thomas
wrote: "The Court begins its opinion by detailing the evils of state
laws that restrict the direct shipment of wine… The Court's focus
on these effects suggests that it believes that its decision serves
this Nation well… The Twenty-first Amendment…took those
policy choices away from judges and returned them to the
States. Whatever the wisdom of that choice, the Court does this
Nation no service by ignoring the textual commands of the
Constitution…"

Since we all believe in the Commerce Clause, why aren't
Kennedy and his brethren doing us a service by overturning
these bad state laws? Because, by dammit, once again the Court
has taken away the democratic process. The way that works, of
course, is that wine lovers convince their legislatures to change
the law, and that's the process that the Court has usurped. To
principled Constitutionalists, the process is more precious than
any court-ordered policy we may agree with. And, by the way,
the process was working. According to a story in Friday's (5/17)
Wall Street Journal, "Ten years ago, just four states allowed out-
of-state wineries to ship directly to consumers; today, 27 states
allow for some form of direct shipping. In 2003 alone, three
states – Virginia, South Carolina and North Carolina –
introduced legislation that allows for direct shipping. Just last
week, the governor of Texas signed a bill that allows direct
shipping from wineries to consumers, effective immediately." So
now, all those people who worked to bring about this good
legislation may as well say, "Why'd we work so hard to convince
our legislators to change the law? We don't need democracy; we
have a committee of 9 lawyers who'll change the law for us."
(One more question: What the heck is Scalia doing joining this
majority?)

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right.
He can be reached at rssjr@citcom.net.

Enter Stage Right -- http://www.enterstageright.com