What about beer?

BevNET.com – Interstate Wine Shipments Legal

“It is evident that the object and design of the Michigan and New York statutes is to grant in-state wineries a competitive advantage over wineries located beyond the states’ borders,” Kennedy wrote in an opinion joined by Justices Antonin Scalia, David H. Souter, Ruth Bader Ginsburg and Stephen G. Breyer.

Good. What about beer.

[Boring thoughts after the cut.]

It appears to me that for Scalia, Renquist and Thomas there was a conflict between the Interstate Commerce Clause and the 21st Amendment. Scalia showed his often hidden distrust of government power in coming down on the side he did. I think it’s instructive about Scalia’s leanings in general. He’s one of those for whom the Constitution is important because it is a defense against tyranny, but who understands that to be effective it has to actually be followed and not merely given lip service.

Of course, the states at issue did themselves no favors by painting blatantly discriminatory laws intended to do exactly what states are not allowed to do – interfere with interstate commerce – as efforts to “curb underage drinking.” A FedEx shipment of wine from in state is no less likely to go to an underaged person than a shipment delivered by the same driver from another state. I am shocked that Thomas bought their specious argument.

Update on further reading: Professor Bainbridge points out Scalia’s writing in an earlier concurring opinion (West Lynn Creamery v. Healy (93-141), 512 U.S. 186 (1994). on the “negative” Commerce Clause:

As a result, I will, on stare decisis grounds, enforce a self executing “negative” Commerce Clause in two situations: (1) against a state law that facially discriminates against interstate commerce., and (2) against a state law that is indistinguishable from a type of law previously held unconstitutional by this Court.

Scalia is “no fan of the dormant commerce clause,” according to Bainbridge. Interestingly, he was joined in the above opinion by Justice Thomas. Bainbridge thinks he “was not persuaded by Thomas’ account of the 21st amendment.” I think he simply didn’t buy the states’ argument that a minor was somehow more likely to get wine from an out-of-state than in-state shipment. With no legitimate state interest at stake, he decided “on stare decisis grounds…against a state law that facially discriminates against interstate commerce.”

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