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01/23/2019

Twenty-first Amendment Originalism?
Michael Ramsey

Last week's U.S. Supreme Court argument in Tennessee Wine and Spirits Retailers Association v. Blair may indicate an opinion (or opinions) exploring the original meaning of the 21st Amendment (repeal of prohibition). 

The question presented is "Whether the 21st Amendment empowers states, consistent with the dormant commerce clause, to regulate liquor sales by granting retail or wholesale licenses only to individuals or entities that have resided in-state for a specified time?"  Tennessee's residency requirement would very likely be unconstitutional under the dormant commerce clause (or originalists might prefer the Article IV privileges and immunities clause). But the 21st Amendment, Section 2, says that "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."  Does this validate otherwise-problematic state regulations of alcohol?  Past Supreme Court cases have been, shall we say, not entirely consistent.  At several points in the argument the Justices explored the Amendment's original meaning (without obvious success).  As described at SCOTUSblog: 

Representing the retailers defending the residency requirement, attorney Shay Dvoretzky told the justices that ... [t]he 21st Amendment . . . was intended to give back the powers that the states had had before Prohibition under two federal laws – the Wilson Act and the Webb-Kenyon Act – that gave them “near complete” power to regulate the distribution of liquor. States can do almost anything, Dvoretzky stressed, as long as they treat in-state and out-of-state products the same, which the residency requirement does.

...

Justice Brett Kavanaugh was skeptical. The problem I’m having, Kavanaugh said to Dvoretzky, is that nothing in the text of the 21st Amendment – which bars the “transportation or importation” of liquor into a state in violation of that state’s laws – gives the states complete authority over the distribution of liquor. All that the 21st Amendment was intended to do, Kavanaugh suggested, was let states remain “dry” if they opted to do so; it wasn’t intended to allow states to pass laws that discriminate against out-of-state interests.

...

Appearing on behalf of Total Wine and the Ketchums, lawyer Carter Phillips reiterated Kavanaugh’s suggestion (later echoed by Alito) that the 21st Amendment does not give states broad authority to regulate alcohol but instead was intended to allow states that had decided to remain “dry” to stop the importation of alcohol from other states.

Notably, the court of appeals held the state's residency requirement unconstitutional over a partially originalist dissent by Judge Jeffrey Sutton.