May 19, 2005

SCOTUS Rules Against Discrimination In Wine Cases
They Didn't Go Nearly Far Enough

The wine cases, which refer directly to laws in Michigan in New York and indirectly to similar laws in approximately half the states, dealt with discriminatory laws that restricted consumer-direct wine shipments from out-of-state wineries. The Court found that the laws of MI and NY violated the Commerce Clause and were not protected by the 21st Amendment (the one that repealed Prohibition by throwing alcohol back to the states' jurisdictions).

The Court held, in reference to the 21st Amendment, that Section 2 of the 21st only applies if the state is a dry state (no states are dry since the 1960s, though some states have many dry counties). Section 2 says:
    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 operative phrase is "in violation of the laws thereof." The reason is obvious, and the Court points it out; the pre-Prohibition jurisprudence held that stopping interstate alcohol shipments was unacceptable in light of the Commerce Clause. The 21st Amendment gave the dry states a helping hand (prior found in Congressional acts) that allowed them to ban interstate transportation of liquor if they wanted to stay dry. It was a way to help states that stayed dry, not a "let states do whatever they want" clause. I definitely agree with this holding on the 21st Amendment.

The Court held, in reference to the Commerce Clause, that preferential treatment for in-state businesses and against out-of-state businesses is unconstitutional. They've held this position repeatedly in the past. I agree with this holding, since it's obvious that the Founders meant to prohibit just this sort of thing. We're a country, not a customs union or confederation. But beyond that, I'd also make the argument that Art IV, Sec 2 applies:

    The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.
I think this clause - long discarded or ignored by many lawyers - bestows broad rights, including to citizens engaging in commercial activity. I see it as a precursor to the Fourteenth Amendment, since its wording certainly says, in plain enough terms, that no state has a right to abuse the liberties of its citizens below the (high) level guaranteed all Americans.

But speaking of the Fourteenth Amendment, I'd also suggest that it's both an issue of Due Process and Equal Protection.

It's an Equal Protection matter because the 14th says "nor deny to any person within its jurisdiction the equal protection of the laws" and not any citizen of that state. So Equal Protection is not contingent on being a resident or citizen of the state in question, only in being a person within its jurisdiction.

While it's obviously unclear just how jurisdiction applies if you're buying wine online, one thing must be true: if the state didn't have jurisdiction requiring Equal Protection, then it wouldn't have jurisdiction to ban the wine shipment. Therefore, either the state has jurisdiction, which must be bound to follow Equal Protection, or the state has no jurisdiction, and the law is simply void. I would say the state has jurisdiction when the wine crosses the state line - the point at which they'd stop any black-market wine shipments - and so that's when Equal Protection is attached.

It's substantively unequal treatment and doesn't have any sort of rational, fair basis. It's flatly discriminatory, so I'd apply the Equal Protection rights in this case as well.

For Due Process, I subscribe to a semi-Lochnerian view (as is obvious from my available writings on the Supreme Court, available on the website under issue articles) but mostly to a natural rights view. Of course, I think

And because I'm really out of touch with the constitutional mainstream on the issue, I'm also of the opinion that, just as this violates the Privileges and Immunities Clause and the Due process Clause, this violates the Ninth Amendment. I could get flunked out of law school, were I attending one, for espousing this opinion. Well, not really, but it's incredibly unpopular and often mocked. That said, I'm confident it's the appropriate, sound and constitutionally-mandated result; I mention the unpopularity mostly to explain that I understand the irregularity of my approach to con-law. The Ninth Amendment protects natural liberty, and the wine shipment instance clearly applies.

Aside from the Ninth Amendment, my interpretation of and reliance on the Privileges and Immunities Clause, the Due Process Clause and the Equal Protection Clause might turn some heads, to put it mildly. Again, I find these not only sound but relatively obvious interpretations of the Constitution, and I don't really see how an alternate interpretation could be correct. I believe most of the controversy stems from the unwillingness of so-called liberals to embrace economic freedoms and the uneasiness of conservatives to question the power of the legislature. Both might easily label this activism, though I suspect that striking down a hypothetical Ban Political Parties Act of 2011 would not be considered activism; "activism" is largely a term reserved for opinions that one dislikes.

Aside from using these important provisions, the application of constitutional rights to economics is considered something akin to having sex with a beagle or telling Luke to rule the galaxy by your side. Some might think as a libertarian, I see the Constitution as extending to economic rights. I'd reverse that sentiment; because I believe that economic rights are every bit as normal, important and deserving of protection as other rights, I am a libertarian.

However, I have to say I'm very happy at the ruling. On a sidenote, it's interesting that this formulation of the Justices has never happened before, ever. There's never been this combination of dissenting and concurring Justices. Kennedy wrote the opinion of the Court, and Scalia, Souter, Ginsburg and Breyer joined. Stevens dissent with O'Connor joining. Thomas dissented with Rehnquist, Stevens and O'Connor joining. Very strange mix-up. Kind of confuses the normal one-dimensional interpretation that tries to place the Justices in a liberal-moderate-conservative line-up. If the conventional wisdom applies, then the majority was moderate, conservative, liberal, liberal, liberal and the dissenters were conservative, conservative, liberal, moderate. There's a bit more to it than the 1-D model would tell us; hopefully we can all retain this in mind for future SCOTUS watching.


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