Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine

Abstract:     
This essay is actually a series of posts from the Volokh Conspiracy weblog that discusses the policy and constitutional issues surrounding a question that the Supreme Court will hear this term, whether discriminatory barriers to the interstate direct shipment of wine are constitutional. Because of the timeliness of the issue, the essay is presented in this unusual and informal format so as to be available to the public more rapidly than through the traditional law review format. This "essay" reviews the historical evidence and ratification history of the 21st Amendment, and concludes that the answer is unambiguously no.

The purpose of the 21st Amendment was to reverse the 18th Amendment's disastrous experiment with federal Prohibition, and thereby to restore the balance between state and federal power that had existed prior to the 18th Amendment. It did this in two ways. First, Section 1 of the Amendment repealed Prohibition, restoring to the States their exclusive police power authority to regulate the local sale and distribution of alcohol. Second, Section 2 of the Amendment constitutionalized certain federal laws that allowed the States to enforce their police power on equal terms against alcohol shipped in interstate commerce as against alcohol manufactured or sold within the State. Section 2's purpose was to nullify a line of Supreme Court decisions that compelled some States to "reverse discriminate" in favor of out-of-state vendors. As a result, the 21st Amendment removed the federal government from meddling in local affairs, but did not cede a novel and unnecessary power to the States to meddle in the federal government's traditional control over interstate commerce.

In other words, the 21st Amendment enabled dry States to remain dry if they so chose, but it did not empower wet states to engage in economic warfare against the products of other wet States.

Keywords: Commerce Clause, Twenty-First Amendment

JEL Classifications: KO

Working Paper Series