by Jay Wexler
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 fu
nding 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.
CHAPTER 7
The Letters of Marque and Reprisal Clause
Foreign Affairs
The Congress shall have Power to . . . grant Letters of Marque and Reprisal.
Article I, Section 8
Americans adore pirates! We dress up like pirates on Halloween and bellow “Arrrr, matey!” at our friends and feed imaginary treats to the invisible parrots perched on our shoulders. We spend every September 19 celebrating International Talk Like a Pirate Day and occasionally change our Facebook language settings to pirate mode (yes, this is a real thing). But despite their curiously romantic appeal, pirates actually suck. They sucked back in the seventeenth and eighteenth centuries when they lawlessly plundered innocent ships with cannons and swords, and they continue to suck today, as they use their high-tech GPS equipment and automatic weapons to wreak havoc along the Horn of Africa and elsewhere.
