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.
Amendment XXI, Section 2
This may come as a surprise, but in the late 1960s, the problem of “bottomless” dancing in California bars and nightclubs had spiraled out of control. Or at least that was the opinion of the state’s Department of Alcoholic Beverage Control, which became so worried about the menace that it held a series of public hearings to figure out the extent of the peril and what to do about it. The testimony at these hearings revealed, in the words of one federal court, a “sordid” story, “primarily relating to sexual contact between dancers and customers.” Apparently, bottomless-dancing clubs were not nearly as wholesome as one might imagine. According to a different court: “Customers were found engaging in oral copulation with women entertainers; customers engaged in public masturbation; and customers placed rolled currency either directly into the vagina of a female entertainer, or on the bar in order that she might pick it up herself.” The State of California, in other words, had turned into a Bangkok red-light district.
Of course, the state had already made it illegal for customers and dancers to engage in public sexual acts, but apparently those laws had not done the trick (so to speak). The agency in charge of licensing the sale of alcoholic beverages within the state therefore decided to do something about the bottomless dancing itself. It passed a series of regulations prohibiting a variety of lewd practices in any establishment selling liquor. Specifically, no club holding a liquor license could allow any person to perform acts of or simulating “sexual intercourse, masturbation, sodomy, bestiality, oral copulation, flagellation . . . [or] the touching, caressing or fondling on the breast, buttocks, anus, or genitals.” The state figured that banning these activities in bars would pretty much end them altogether; what guy, after all, is going to pay money to watch a woman simulate caressing her buttocks if he can’t enjoy a beer at the same time?
The problem, however, was that California’s regulations seemed clearly to violate the First Amendment. Fifteen or so years earlier, the Supreme Court had held that the government may not ban arguably profane speech or expression that does not rise to the level of “obscenity,” with the term “obscenity” being very specifically defined as material that, when “taken as a whole,” appeals to a “prurient” interest in sex and patently offends “community standards” relating to sex, while completely lacking any “social importance.” Nothing in the regulations limited their application only to “obscene” instances of bestiality or flagellation. Accordingly, when a group of dancers and license holders sued to have the regulations invalidated, the three-judge lower federal court that heard the case held that the regulations were unconstitutional.
The Supreme Court, however, reversed. The Court agreed that the “regulations on their face would proscribe some forms of visual presentation that would not be found obscene” under its prior cases. So why uphold the regulations? The answer appeared to rest in the language of Section 2 of the Twenty-first Amendment, which was ratified in 1933 to repeal the era of Prohibition that had been ushered in fourteen years earlier by the Eighteenth Amendment. According to the Court, Section 2 of the Twenty-first Amendment acted like a thumb on the scale of state power, giving states the authority to regulate alcohol in ways that would otherwise violate the Constitution. As the Court put it: “[T]he broad sweep of the Twenty-first Amendment has been recognized as conferring something more than the normal state authority over public health, welfare, and morals. . . . Given the added presumption in favor of the validity of the state regulation in this area that the Twenty-first Amendment requires, we cannot hold that the regulations on their face violate the Federal Constitution.”
That seems like a strange result, doesn’t it? How could the amendment that ended Prohibition be used by the Court to uphold a restriction on the sale of alcohol? Well, that depends on what the Twenty-first Amendment was all about. Was it about making alcohol legal, or was it about taking power over alcohol away from the federal government and returning it to the states, where it had always resided prior to 1919?
Perhaps the most difficult issue facing the framers of the Constitution was how to balance the powers of the new federal government with the powers of the states—to work out, in other words, the problem of federalism. Between the end of the Revolutionary War and the ratification of the Constitution, the newly independent states had been operating under the Articles of Confederation, a document that created a very limited federal government and left most powers to the states. This regime worked poorly, particularly because the states competed with each other for economic supremacy, taxing each other’s goods and otherwise refusing to trade freely among themselves. The federal government, lacking executive and judicial power and possessing only a weak legislature, couldn’t do anything to preserve interstate harmony. When the Constitutional Convention met in 1787, it was clear that the federal government needed to be given more power, but a lot of disagreement remained between the so-called federalists and anti-federalists about exactly how much.
In many ways, the Constitution represents a compromise between these two camps. Most importantly, although the Constitution creates a substantial, three-branch national government, it confers upon that government only a series of specific, limited powers; everything else is left to the states. As discussed in chapter 2, Congress may only exercise those powers enumerated by the Constitution; the founding document does not give Congress any sort of general police power to regulate purely local activities. Likewise, as discussed in chapter 4, the jurisdiction of the federal judiciary is limited to cases involving federal law and cases involving plaintiffs and defendants from different states. Run-of-the-mill controversies about real property, contract terms, criminal law, and negligently dropping a brick on someone’s foot generally cannot be heard by the federal courts.
In addition, two key amendments to the Constitution specifically protect the states. The Eleventh Amendment, ratified in 1795, says: “The Judicial power of the United States shall not be construed to extend to any suit in law or equity, commenced or prosecuted against one of the United States by Citizens of another State, or by Citizens or Subjects of any Foreign State.” The amendment was motivated by a famous early Supreme Court case called Chisholm v. Georgia, which held that a citizen of South Carolina could sue the
State of Georgia to recover debts from the Revolutionary War. The states kind of freaked out about the idea that people could sue them for the mountains of debt they had incurred during the war, and they acted promptly to enact the Eleventh Amendment. Even though the language of the amendment clearly does not bar citizens from suing their own state and clearly applies only to federal courts, the Supreme Court has priggishly extended the amendment to all citizens and all courts. As a result, states are immune from a lot of lawsuits that they shouldn’t be, like suits brought against them by their own citizens to enforce federal employment or environmental laws, even if these suits are brought in state court.
Then there’s the Tenth Amendment. This curious little number—the final entry in the Bill of Rights, ratified in 1791—says that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It’s unclear what this is supposed to mean. On the one hand, there’s a good argument that it does nothing but remind everyone that if the Constitution doesn’t give a power to the federal government, then that power continues to reside with the states. On the other hand, it does seem strange that the framers would create a whole constitutional amendment to serve as nothing more than an FYI Post-it note. Accordingly, the Supreme Court has from time to time used the Tenth Amendment to strike down federal laws that order or “commandeer” the states to carry out some federal requirement, like the time Congress ordered every state to come up with a plan to dispose of all hazardous waste within their borders or else take ownership of the waste, or when the Brady Bill required state officials to do background checks on anyone seeking to buy a gun. It is worth noting, however, that nothing in the Tenth Amendment stops the federal government from basically coercing the states by threatening to take funds away from them if they don’t do what the feds want.
Although the Constitution gives the states a lot of latitude to do as they wish, it also places a number of specific limits on the little guys. For one thing, there’s the supremacy clause of Article VI, which says that federal law is the “supreme Law of the Land.” This clause makes it clear that if a federal law and a state law conflict, the federal law trumps. That’s why, for example, it’s still technically illegal to use marijuana for medical purposes in California. Second, Article I, Section 10, of the Constitution lays out a series of specific limits on the states—they are forbidden, for instance, from issuing titles of nobility (see chapter 8), keeping troops, engaging in war with foreign nations, or coining their own money. Moreover, most of the Bill of Rights, including the rights to free speech, freedom of religion, and freedom from unreasonable searches and seizures, has also been applied by the Supreme Court to the states by way of the due process clause of the Fourteenth Amendment.
Finally, one of the most important restrictions on state power is one that doesn’t seem to actually be in the Constitution, at least explicitly. As I mentioned in the last chapter, the Supreme Court has long interpreted Article I, Section 8’s commerce clause—the provision that gives Congress the power to regulate interstate commerce—as implicitly restricting the states from regulating interstate commerce themselves. The Court has used what’s bizarrely been referred to as the “dormant commerce clause” to solve the major problem haunting the Republic under the Articles of Confederation—states passing laws to protect their own local economies—and to ensure the existence of a true national economy with a free flow of goods across state lines. Under the dormant commerce clause, any state law that facially discriminates against out-of-state goods by banning them or taxing them or whatever is unconstitutional unless Congress has specifically authorized such a law or the law is necessary to protect some compelling state interest unrelated to protecting its economy. This last exception is quite narrow. Only once—when Maine banned the import of live baitfish to protect its “fragile fisheries”—has the Supreme Court upheld a discriminatory state law on that basis, and that was because baitfish from outside Maine had some nasty parasite that Maine baitfish generally didn’t have.
I would bet that most average twenty-first-century Americans, if you asked them, would say that it’s really weird that two out of the twenty-seven amendments in the Constitution have to do with booze. Why would our most important legal document single out something so mundane and pedestrian as alcoholic beverages, of all things? Drinking alcohol to excess is obviously unhealthy, and its secondary effects, like drunk driving and violence, are worth some bits of federal or state legislation here and there, but two constitutional amendments? For real?
To understand how prohibiting the manufacture and sale of alcoholic beverages could have become a matter of constitutional concern requires some creative imagination of how Americans in the late nineteenth and early twentieth centuries viewed booze and its associated problems. For many abstainers, or “drys,” in this period, alcohol was pure evil. Remember, Americans (mostly men) drank a lot back then, and when they drank, it was often in male-only saloons. This was not an era, in other words, when men and women sipped gin and tonics together by the pool or went club hopping arm-in-arm after work. Men would disappear with the week’s wages and blow it in the saloons on drinks and prostitutes, leaving their wives and children at home, scrounging for food until the husbands showed up sometimes days later to give them all a good beating. As Daniel Okrent, author of the superb book Last Call: The Rise and Fall of Prohibition, puts it: “Saloons were dark and nasty places, and to the wives of the men inside, they were satanic.”
Put this situation together with the fact that alcohol was often identified with European immigrants and racial minorities, and it starts to make sense that groups of nativists, racists, and women’s rights activists could come together in various unlikely alliances to convince a slew of states to prohibit or restrict the manufacture and sale of alcohol within their borders. Here, however, a strange early quirk of the dormant commerce clause came into play. Back in the early twentieth century, under the Supreme Court’s so-called “original package” doctrine, states were not allowed to regulate the sale of products coming from other states within their own borders so long as the product remained in its original package. This led to the counterintuitive result that states could not prohibit saloons from selling liquor imported from other states. To remedy this problem, Congress passed the Webb-Kenyon Act, which, in language very similar to what would become Section 2 of the Twenty-first Amendment, made it a federal crime to ship intoxicating liquor from one state to another state in violation of the latter state’s laws.
Although Webb-Kenyon closed one of the major loopholes that had made liquor regulation on the state level problematic, many hard-core drys were still unsatisfied with the patchwork of state laws regarding alcohol. Not all states banned liquor, and those that did varied in how strict they were about it. When the Sixteenth Amendment reversed an earlier Supreme Court decision and made it legal for the government to institute an income tax—thus substantially reducing the fiscal need to tax liquor—and World War I brought German breweries like Anheuser-Busch into disrepute—the stage was finally set for the drys to prevail in their long-standing battle to put Prohibition in the Constitution. And, thus, Section 1 of the Eighteenth Amendment: “After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.”
The text of the amendment left a number of questions unanswered—such as, for instance, what counts as an “intoxicating liquor”—so Congress filled these gaps through a statute called the Volstead Act. The act defined the key word “intoxicating” to include anything one could ingest that contained more than 0.5 percent alcohol, which, as Okrent points out, technically made it illegal to sell sauerkraut and German chocolate cake, as well as the least alcoholic of beers and wines. The act also came up with a few interesting exceptions. For example, the statute made it legal for rich people to drink in their own homes any alcohol purchased before the effective date of the Eighteenth Amendment (the act didn’t actually explicitly limit this exception to “rich people,” but who else had stockpiled liquor in their basements?). The act exempted sacramental wine, which was nice, since it meant that Catholics and Jews could continue to practice their religions, as well as cider and fermented fruit juices, which was also nice, since it meant that (again, according to Okrent) “no husbandman would be denied the barrel by the homestead door, the jug stashed in a corner of the field, the comforting warmth on cold country nights.”
Prohibition, naturally, was a complete disaster. Organized crime flourished. Corruption thrived. Violence blossomed. Poisoning from crudely distilled alcohol became rampant. Federal anticrime forces were overwhelmed (Section 2 of the Eighteenth Amendment provided that both the feds and the states had jurisdiction over its enforcement). And still people drank nearly as much as they had before, though in different ways and in various degrees of secrecy. Once again, larger forces appeared on the scene, and when the Great Depression made the absurdity of prohibiting booze on a federal level inescapably obvious, the country’s “wets” were able to secure passage of the Twenty-first Amendment, Section 1, of which provided: “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”
Section 1 of the Twenty-first Amendment is clear as a bell, but what about Section 2? 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. Probably the oddest thing about this section is that it directly regulates the behavior of private parties rather than the government. Every other provision in the Constitution, except for one, tells the government what it can or must or cannot do. If you haven’t thought about this before, you might want to find the Constitution online and skim through it (we thought about reprinting it as an appendix at the end of the book, but that would have added $1 to the price of the book; you’re welcome). Notice how just about never does the Constitution place any limit on individuals or other private actors like associations or corporations or religious groups or anyone else. The only two exceptions are Section 2 of the Twenty-first Amendment and Section 1 of the Thirteenth Amendment, which prohibits slavery. This unique feature of the Twenty-first Amendment led Harvard professor Laurence Tribe, probably the preeminent scholar on the US Constitution, to nominate Section 2 as the Constitution’s stupidest clause. As Tribe puts it:
[T]here are two ways, and two ways only, in which an ordinary private citizen, acting under her own steam and color of no law, can violate the United States Constitution. One is to enslave somebody, a suitably hellish act. The other is to bring a bottle of beer, wine, or bourbon into a State in violation of its beverage control laws—an act that might have been thought juvenile, and perhaps even lawless, but unconstitutional?
Beyond this quirk, however, it remains unclear what exactly the framers of Section 2 were attempting to accomplish. There are two basic theories of what’s going on with the clause—what experts have called the “maximalist” and the “minimalist” theories, although of course there are intermediate positions as well. According to the maximalist theory, Section 2 gives the states complete power to regulate liquor, including the power to pass laws that would otherwise violate earlier-enacted provisions of the Constitution, including the First Amendment and the dormant commerce clause. On the other hand, defenders of a more minimalist approach to the clause say that it’s merely meant to constitutionalize the Webb-Kenyon Act and make clear that states may regulate alcohol coming from outside their borders, so long as that regulation otherwise comports with the rest of the Constitution.
The Supreme Court has struggled to make sense of Section 2 almost since it first became law. Early on, the Court took a fairly maximalist stance. In 1936, in a case called State Board of Equalization of California v. Young’s Market Co., the Court heard a challenge to a California law that charged $500 to import beer for sale into the state. California storeowners who wanted to import beer from companies in Wisconsin and Missouri argued that the law violated the dormant commerce clause because it discriminated against out-of-state beer enterprises. The Supreme Court conceded that absent the Twenty-first Amendment, the law would surely have been unconstitutional. Section 2, however, saved the day for California. The Court couldn’t have been clearer in saying that Section 2 basically gave California carte blanche to do whatever it wanted with liquor. “The words used are apt to confer upon the state the power to forbid all importations which do not comply with the conditions which it prescribes,” wrote the Court. It continued: “The plaintiffs ask us to limit this 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.” In response to the out-of-state beer companies’ alternative argument that California’s law violated their Fourteenth Amendment equal protection rights, the Court was even more succinct: “A classification recognized by the Twenty-first Amendment cannot be deemed forbidden by the Fourteenth.”
In the years following Young’s Market, the Court softened its position a little bit on Section 2, but it continued to find that the Twenty-first Amendment often allowed states to pass laws about booze that they couldn’t have otherwise passed. In the bottomless-dancing vagina-dollar-bill-picking-up case (California v. LaRue) that I described at the beginning of the chapter, for instance, the Court stopped short of saying that the First Amendment was irrelevant, but it did nonetheless uphold a law that was questionable under free speech principles, saying that it wouldn’t “insist that the sort of bacchanalian revelries that the Department sought to prevent by these liquor regulations were the constitutional equivalent of a performance by a scantily clad ballet troupe in a theater.” Ten years later, the Court extended this line of reasoning up above the waist when in a case called N.Y. State Liquor Authority v. Bellanca, it upheld a New York law banning topless dancing in establishments holding liquor licenses. “Whatever artistic or communicative value may attach to topless dancing,” the Court said, “is overcome by the State’s exercise of its broad powers arising under the Twenty-first Amendment.”
More recently, however, the Supreme Court has retreated from this maximalist position when it comes to whether the states may ignore the First Amendment, Fourteenth Amendment, and other constitutional provisions protecting individual liberties. For example, in Craig v. Boren, the Court struck down an Oklahoma law saying that people without Y chromosomes could buy 3.2 percent beer when they turned eighteen, while people with Y chromosomes had to wait until they turned twenty-one. The Court said this was a violation of men’s equal protection rights and that the Twenty-first Amendment was irrelevant. Likewise, in a case called 44 Liquormart Inc. v. Rhode Island, the Court reiterated the irrelevance of the Twenty-first Amendment in a free speech case involving liquor advertising. Both cases basically said that the California bottomless-dancing decision was no longer good law, though the Court was also careful enough to say that the government can still regulate nude dancing because, well, it didn’t give any good reason but basically we can assume that the Court just thinks nude dancing is depraved and disgusting.
Nevertheless, once in a while you do see a case from a lower court that relies on Section 2 of the Twenty-first Amendment to uphold some state or local regulation about alcohol. When the city of San Juan, Puerto Rico, for instance, passed an ordinance in 2004 banning alcohol sales between midnight and 7:00 a.m. in certain areas of the city to reduce crime, noise, garbage, and abandoned vehicles, a federal district court cited the government’s “heightened authority under the Twenty First Amendment” in support of its decision to uphold the law. Section 2 also played a role in a fabulous case from Springfield, Missouri, called Spudich v. Smarr. The State of Missouri allowed “amusement places” to apply for liquor licenses, with the term “amusement places” defined as buildings of a certain size “where games of skill commonly known as bowling or soccer are usually played.” A guy named Spudich, who owned a pool hall in town, applied for a liquor license and was denied, since nobody played “bowling or soccer” in his pool hall. Spudich claimed the law was irrational, but a federal appellate court disagreed. One the one hand, the court thought that the Missouri legislature “could have believed that billiard parlors . . . represented a greater threat of disruptive behavior” because playing pool has a slower pace and requires less physical exertion than bowling or soccer. On the other hand, the court hypothesized that maybe soccer and bowling establishments were more family-friendly places than pool halls and thus could benefit from a little booze: “The legislature may reasonably have believed,” said the judges, “that allowing the sale of liquor at certain family-oriented sports facilities, such as bowling alleys and soccer stadiums, would provide a relaxing atmosphere that would enhance the recreational aspect of the day.” In finding the state law constitutional, the court relied on its view that under Section 2 of the Twenty-first Amendment, “There is an added presumption in favor of the validity of state regulation in the area of liquor control.”
Given the Court’s holdings in Craig v. Boren and 44 Liquormart, these lower-court decisions breathing life into Section 2 seem a little misguided. Still, though, at least one scholar believes it makes sense to read Section 2 as giving states additional powers to prohibit liquor-related activities that cause harms mirroring the harms that existed prior to Prohibition. Marcia Yablon-Zug, a professor at University of South Carolina Law School, has argued that despite Prohibition’s failure, the temperance movement that brought about Prohibition had pursued a number of worthwhile goals—including reducing the harms of the saloon culture that pervaded American life in the early twentieth century—that remained important even when it became clear that Prohibition, as a whole, was not working. Yablon-Zug argues that Section 2 was “created to effectuate these temperance goals.” Supporting the decision in Spudich, for example, Yablon-Zug cites a bunch of cases and newspaper articles that show “the continued seediness of pool halls” and concludes that “pool halls are rarely family establishments, and many have the same undesirable qualities as the old saloon.” If pool halls and bottomless-dancing clubs are just new manifestations of the pre-Prohibition culture of male-only drinking, violence, and prostitution, then by all means, Yablon-Zug suggests, states should be able to regulate them to protect the families that are the victims of this culture. Viewed this way, the Twenty-first Amendment wasn’t about giving alcohol the green light at all; rather, it was about taking the power to prohibit and regulate alcohol away from the federal government and giving that power—in a highly robust form—back to the states.
States regulate alcohol in strict and complicated ways. When it comes to distribution, they generally use some version of a three-tiered system that separates producers, distributors, and retailers. This is why it’s not always that easy to just go to the Web site of your favorite Paso Robles or Willamette Valley winery and order up a case of their best pinot noir shipped to your door. On the other hand, the growth of the Internet and the rise of smaller wineries have placed a lot of pressure on state legislatures to loosen their grip on direct wine sales to consumers. As a result, many states have started to allow these direct shipments, although the specifics of what’s allowed and what isn’t differ a lot by state. For a while, around the turn of the millennium, some states started allowing in-state wineries to sell directly to consumers but not out-of-state wineries. For instance, Michigan required wine producers generally to go through wholesalers, except for the forty or so Michigan wineries, which could purchase a fairly cheap “wine maker” license that allowed them to sell directly to Michigan buyers. New York did basically the same thing, although it allowed out-of-state wineries to sell directly to New York consumers if they set up a “branch factory, office, or storeroom” within New York, something no out-of-state winery had any intention of doing.
In 2004 dormant-commerce-clause challenges to both of these discriminatory state laws made it to the Supreme Court, in Granholm v. Heald. Some of the biggest lawyers around were involved in the case, from Kenneth Starr, who almost ruined the country, to Robert Bork, who would have ruined the country if he had been confirmed to the Supreme Court, to Eliot Spitzer, who allegedly had sex with whores. All eyes were watching, from state regulators to the wine industry to underage college freshmen with Internet connections, credit cards, and a hankering for some top-end sauvignon blanc with notes of grapefruit, pepperoncini, and cat litter.
The Court decided 5–4 that the state regulations were unconstitutional. The lineup of justices was just about as odd as the Twenty-first Amendment itself. Rather than explaining what the various justices thought about the case, though, I figured it would be more fun if I presented their deliberations in a little play, which I call The Justices Deliberate Granholm v. Heald:
The justices sit around their giant conference table eating lunch and discussing how to decide the case.
JUSTICE STEVENS: Well, I think that these state regulations are fine. Alcohol is not the same as any other product. I mean, we have not one but two constitutional amendments about the hooch. The Twenty-first Amendment might have repealed Prohibition, but Section 2 “gave the States the option to maintain equally comprehensive prohibitions in their respective jurisdictions.”
JUSTICE THOMAS: I agree with Justice Stevens.
JUSTICE STEVENS: You do? Really? When was the last time we agreed?
JUSTICE THOMAS: I don’t know. Didn’t we agree back in 1992 that we both enjoyed A Few Good Men? Anyway, look at the Young’s Market case from 1936. We said it was fine for California to tax beer imports from outside the state because Section 2 trumps the dormant commerce clause.
JUSTICE SCALIA: What? I totally disagree. Have you guys read our more recent cases? The 3.2 percent beer case? The 44 Liquormart case? Your cases are yesterday’s newspaper. The newer cases have basically held that the Twenty-first Amendment doesn’t do jack.
JUSTICE SOUTER: I can’t believe I’m saying this, but I think Scalia’s right. Remember the Bacchus Imports v. Dias case from 1984?
JUSTICE O’CONNOR: Isn’t that the one where Hawaii had imposed a 20 percent tax on all wholesale liquor sales but had exempted locally made pineapple wine and an indigenous-shrub-based brandy called okolehao from the tax? We said that the tax violated the dormant commerce clause even though sales of okolehao and pineapple wine made up no more than 0.7739 percent of total liquor sales in any given year.
JUSTICE REHNQUIST: Mmmmm, pineapple wine. Yummy.
JUSTICE BREYER: I bet a cup of okolehao would pair nicely with this turkey and muenster sandwich I’m eating.
JUSTICE SCALIA: You’ve got turkey? Want to trade? I’ve got peanut butter and banana.
JUSTICE BREYER: No way you’re getting any of my turkey. I’ll give you my cookie for your brownie, though.
JUSTICE GINSBURG: Can we focus here, people? Jeez!
JUSTICE SOUTER: Thank you, Justice Ginsburg. As Nino and I were saying, our most recent cases, including the Hawaii case, have very clearly held that Section 2 does not authorize states to violate the strict dictates of the dormant commerce clause. That’s exactly what Michigan and New York have done here, so I say we strike down the challenged laws.
JUSTICE STEVENS: I vociferously disagree. You whipper-snappers might be under eighty-three years old, but I’m not, and I remember well what Prohibition was about. The people who wrote the Twenty-first Amendment meant to give the states the power to regulate alcohol however they want. The justices who decided our early cases on this matter, like Young’s Market, had lived through the 1920s and understood this. We should respect the original meaning of the amendment.
JUSTICE THOMAS [giggling under his breath]: Stevens is so old.
JUSTICE REHNQUIST: What about this argument the states make that banning direct sales from out-of-state wineries is necessary to discourage underage drinking? They say it’s just like the Maine baitfish case.
JUSTICE GINSBURG: No, that’s ridiculous. Kids can’t wait eight seconds between checking their text messages. They’re not going to order wine over the Internet and wait three days to get it.
JUSTICE O’CONNOR [leaning toward Justice Rehnquist and whispering]: What does Ginsburg know about text messaging?
JUSTICE BREYER: Plus, the states exempt in-state wineries from the no-direct-sales rule anyway. This totally undermines their whole argument. If a kid from East Lansing or Ann Arbor wants to get hammered on wine, some northern Michigan swill will do just as well as Napa Valley Opus One.
JUSTICE SCALIA: I never thought I’d say this, but I’m with Ginsburg, Breyer, and Souter on this one. Yikes. I better go have my head examined. Does anyone have a gavel I can bite in half?
JUSTICE THOMAS: Well, it looks like Rehnquist, O’Connor, and Stevens are on my side. We’ve heard from everyone except Justice Kennedy. It’s 4–4, Anthony. I guess it’s up to you.
EVERYONE ON THE COURT OTHER THAN JUSTICE KENNEDY: Again!
Justice Kennedy takes off his headphones and turns off the portable television he was watching, which was turned to The Jeffersons.
JUSTICE KENNEDY: Oh, is it time for me to make the law for the land now? I agree with Scalia. Our newer cases trump the older ones. I say the laws are unconstitutional.
JUSTICES SCALIA, SOUTER, GINSBURG, AND BREYER: Yippee.
JUSTICE STEVENS: Why do I even bother showing up here anymore?
The question of how much power the states should have in the federal system was a primary concern of the Constitution’s framers, and it remains a big deal today. In the past twenty or so years, the Supreme Court’s so-called New Federalism approach to issues involving state power, like whether the commerce clause places significant constraints on congressional power and how broad state immunity from suit should be under the Eleventh Amendment, has resulted in states having a bit more power and freedom than in some earlier periods. But the federal government remains extremely powerful, and the idea that the Supreme Court will ever put truly significant restrictions on federal power seems unlikely.
The puzzle of Section 2 of the Twenty-first Amendment is one part of this state-power question, and it is interesting that, by cutting down in recent years on the amount of power Section 2 offers states to regulate liquor, the Court has gone against its general trend of finding in favor of state power. What’s more interesting, though, is what the Court’s approach to Section 2 tells us about constitutional interpretation generally. One of the hard questions when it comes to interpreting the Constitution is whether judges should interpret provisions differently as social and cultural attitudes toward various things—sex, drugs, religion, technology, race, gender, etc., etc.—change over time. Some say yes, the Constitution should be read as a “living document” so that it continues to remain relevant to our current situation, while others say that unelected judges have no authority to change the Constitution’s meaning and that the document’s original meaning must endure, at least until it’s formally amended.
In most cases, it can be difficult to get a handle on this disjunction between original meaning and current conditions, because most of the Constitution is well over two hundred years old, and even some of the more important amendments, like the Fourteenth, have been around for nearly a century and a half. It’s not easy to imagine how the framers, writing in the late eighteenth century, for instance, would have thought about funding public Jewish schools or regulating Internet porn or legalizing gay marriage. The disconnect is just too overwhelming. But with the drosophila-fruit-fly-like Section 2, now only about seventy-five years old, the issue is more accessible. We generally feel differently about liquor now than we did in the mid-1930s, but it’s not so difficult to put ourselves into the shoes of those who struggled with Prohibition, and this makes it easier to think about whether we should interpret the Constitution dynamically. If you think the liberal Justice Stevens is right about the meaning of Section 2, doesn’t that mean you believe that the Constitution’s original meaning should prevail? If you think that the more conservative justices Kennedy and Scalia are right, doesn’t that mean you believe the Constitution should be a living document?
Maybe, maybe not. But the next time you find yourself in a seedy pool hall watching a bottomless-dance routine while enjoying a tall frosty mug of pineapple wine, it might be worth thinking about.