No more 'cherry-picking': the real history of the 21st Amendment's (section) 2.

• Author: Nielson, Aaron

The policy question is clear: state laws that ban out-of-state direct shipping of wine but permit in-state wineries to ship directly hurt consumers and provide little to no off-setting public benefits, such as promoting temperance. (1) The legal question, however, is more opaque. For any other product, such discriminatory laws would be forbidden by the dormant commerce clause, but the issue of whether a state can discriminate in favor of in-state liquor sellers remains unsettled because, as Judge Easterbrook has noted, a state can "control alcohol in ways that it cannot control cheese." (2) The reason for this difference--and hence legal uncertainty--is the confusingly written and frequently misunderstood [section] 2 of the 21st Amendment. (3) As the Supreme Court again will be faced with interpreting [section] 2, an analysis of the clause's original meaning is timely. (4)

This note will argue that, as originally intended, [section] 2 did not permit discrimination. An examination of the legal and legislative landscape that existed behind the ratification of the 21st Amendment demonstrates that while [section] 2 carved out for the States an expanded "police power zone," (5) it did not repeal the anti-discrimination principle. This is true despite the proposed deletion of [section] 3. In fact, the removal of [section] 3 reinforces this view.

1. INTRODUCTION

   A plain text reading of [section] 2 leaves much to be desired, as the Supreme Court has repeatedly recognized. (6) As a result, the Court has often tried to reconcile [section] 2 with the rest of the Constitution. (7) This has been relatively straightforward in matters relating to equal protection and the First Amendment, but controversy has surrounded the relationship of [section] 2 to the Commerce Clause--and therefore the dormant commerce clause--to the extent that some present members of the Court appear to favor the notion that [section] 2 de facto repealed the Commerce Clause as it relates to alcohol. (8) To support this view, Justice O'Connor in particular has extensively (and incorrectly) cited [section] 2's history. (9) It is time to set the historical record straight.

2. LEGAL CONTEXT

   To understand [section] 2, one needs to understand the legal and political environment surrounding prohibition. Most importantly, one needs to consider the Court's early views on the states' police power. The desire for prohibition began long before the 18th Amendment was ratified in 1919. In the License Cases of 1847, the Supreme Court upheld a state's right to regulate alcohol as being within that state's police power. (10) However, in 1888 the Court held in Bowman v. Chicago & Northwestern Railway Co. that because of the dormant commerce clause, and despite the police power, "a state could not regulate liquor, even as part of a general prohibition, until after importation, when the liquor has been 'mingled with and become a part of the general property of the State.'" (11) This seriously undermined liquor regulation (as out-of-state sellers could disregard local laws) and led to the passage of two congressional acts.

   The first was the Wilson Act of 1890; under the Commerce Clause, Congress mandated that state laws should apply to liquor, in its original package, imported from other states "to the same extent as though such ... liquors had been produced in such state." (12) However, in 1898 the Court restricted the scope of the Wilson Act in Rhodes v. Iowa, wherein it held, based on the act's language, that "state control commenced only after the liquor reached the consignee in the state, and not at the state line. This narrow construction undermined the Wilson Act so as to permit mail-order commerce in liquor which could circumvent the laws of dry states." (13) Congress then passed the Webb-Kenyon Act of 1913. (14) "This act forbade the transportation of intoxicants into any state where its receipt, possession, sale, or use was prohibited." (15) Less than a decade later, the 18th Amendment was ratified, and in 1933 the 21st Amendment came into being.

   The important thing to note about both the Wilson and Webb-Kenyon Acts is that neither permitted discrimination. In Scott v. Donald, the Court explicitly held that under the Wilson Act, a "State cannot ... establish a system which, in effect discriminates between interstate and domestic commerce in commodities to make and use which are admitted to be lawful." (16) Rather, a state could only prohibit interstate sales under its police power if it also prohibited in-state sales. The police power did not permit discrimination (17) and all the Wilson Act did was to prevent out-of-state sellers from circumventing local liquor restrictions. This also holds true for the Webb-Kenyon Act. The Court has correctly stated that it was simply an extension of "that which was done by the Wilson Act." (18) This suggests that discrimination was also not permissible under Webb-Kenyon. In fact, the South Carolina Supreme Court ruled in 1916 that the Webb-Kenyon Act "was not intended to confer and did not confer ... the power to make injurious discriminations against the products of other states which are recognized as subjects of lawful commerce by the law of the state making such discriminations." (19) Thus, at the time [section] 2 was ratified it was understood that the States could, under the police power and these acts, forbid alcohol sales, but only if the ban was non-discriminatory.

3. RATIFICATION DEBATES

   At both the congressional level and the level of the state constitutional conventions, there is very little to suggest that those involved believed that [section] 2 permitted the states to discriminate. On the other hand, however, there is very explicit evidence that [section] 2 was primarily concerned with 'constitutionalizing' the pre-18th Amendment liquor acts. (20) As just observed, these acts simply permitted the states to exercise their police power without fear of the Commerce Clause undermining their laws; however, just like the police power they helped support, they did not permit discrimination. As the evidence in favor of [section] 2 permitting discrimination is little and vague while the evidence in favor of [section] 2 only permitting the states to exercise their police power is frequent and explicit, the most logical conclusion is that the latter view represents the framers' actual intent. (21)

   1. Senate Debate

      On February 16, 1933, the United States Senate passed Joint Resolution 211 after several days of debate, a section deletion, and a rejected alternate resolution. (22) It has been noted that:

      The Twenty-first Amendment garnered the requisite two-thirds vote in each house of Congress without raising much substantive debate, probably because most members of Congress saw section one, the simple repeal of constitutional Prohibition, as the bulk of the Amendment's purpose and substance. It seems that sections two and three of the Amendment were seen as being primarily procedural sections, necessary to support and implement section one. (23) As support for this proposition: "In the Senate, more debate was devoted to a dispute over whether the Amendment should require ratification by state legislatures or by state conventions than was devoted to defining the meaning of section two of the proposal." (24) However, even though more debate was focused on the use of state conventions than on the substantive merits of [section] 2, there is some record as to what [section] 2 was intended to mean.

      Of the limited sources available, perhaps the most fertile source of legislative intent is found in the words of Senator Blaine of Wisconsin, the amendment's sponsor. In a floor speech introducing and explaining the amendment to the Senate, he stated that the "language used would effectuate the purpose that is obviously designed by section 2." (25) Thereupon he elaborated on the historical interplay between Congress and the Supreme Court as it related to alcohol, and in so doing he referenced the Webb-Kenyon Act and also Clark Distilling Co., the case wherein the Court upheld the constitutionality of Webb-Kenyon, at which point he stated:

      In [Clark] there was a divided opinion. There has been a divided opinion in respect to the earlier cases, and that division of opinion seems to have come down to a very late day. So, to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line. (26) This plainly suggests that a narrow interpretation of [section] 2 is appropriate--one that incorporates Webb-Kenyon (with its anti-discrimination principle firmly intact) into the Constitution and permits each state to exercise its police power without fear of being undermined by out-of-state liquor sellers.

      Unfortunately, Blaine made other remarks with potentially contradictory meanings. He stated: "I am willing to grant to the dry States full measure of protection and thus prohibit the wet States from interfering in their internal affairs respecting the control of ... liquors." (27) Moreover, on further questioning, he declared that "[t]he purpose of Section 2 is to restore to the States by constitutional amendment...