May 17, 2005

Discriminating against interstate commerce.

Granholm v. Heald, the wine case I briefly mentioned yesterday, would have been a very easy negative Commerce Clause case -- the state laws discriminated against interstate commerce -- but it was made difficult by the 21st Amendment. Writing for the majority, Justice Kennedy says:
The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.
Dissenting, Justice Stevens, joined by O'Connor, looks at an early case interpreted the amendment (one that the majority regards as superseded by later cases):
The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State’s right to discriminate in its regulation of out-of-state alcohol could not have been clearer:

“The plaintiffs ask us to limit [§2’s] 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… . Can it be doubted that a State might establish a state monopoly of the manufacture and sale of beer, and either prohibit all competing importations, or discourage importation by laying a heavy impost, or channelize desired importations by confining them to a single consignee?” State Bd. of Equalization of Cal. v. Young’s Market Co., 299 U.S. 59, 62—63 (1936).

Justice Thomas also dissents, and he is joined by the Chief Justice, as well as Stevens and O'Connor. Thomas stresses a federal statute:
The Webb-Kenyon Act immunizes from negative Commerce Clause review the state liquor laws that the Court holds are unconstitutional. The Act “prohibit[s]” any “shipment or transportation” of alcoholic beverages “into any State” when those beverages are “intended, by any person interested therein, to be received, possessed, sold, or in any manner used … in violation of any law of such State.”
The Court has long held that Congress has the power to authorize the states to discriminate against interstate commerce. That is, there is no negative effect to the Commerce Clause if Congress has used its commerce power to permit the states to act. Thus, the dissenters would resolve the question purely on the statutory ground. But Thomas also goes on to address the 21st Amendment and finds that it too authorizes the states to discriminate against interstate commerce:
Though its terms are broader than the Webb-Kenyon Act, the Twenty-first Amendment also parallels the Act’s structure. In particular, the Twenty-first Amendment provides that any importation into a State contrary to state law violates the Constitution, just as the Webb-Kenyon Act provides that any such importation contrary to state law violates federal law. Its use of those same terms of art shows that just as the Webb-Kenyon Act repealed liquor’s negative Commerce Clause immunity, the Twenty-first Amendment likewise insulates state liquor laws from negative Commerce Clause scrutiny.

There is a great deal of disagreement about the meaning of the cases interpreting the 21st Amendment, and I won't try your patience by paraphrasing these arguments.

I must confess to being at a loss to think of a way to make the inner workings of this case interesting. It would be fun to draw some big conclusion about how Justice Scalia is different from Justice Thomas. Justice Thomas finds decentralized lawmaking especially appealing while Justice Scalia sees nondiscrimination as a central principle? I'm not seeing enough in this case to justify any grandiose statements like that.

6 comments:

downtownlad said...

There goes Scalia again, typical judicial activist, overturning all of those state laws, disobeying the will of the people, ignoring the plain text of the 21st amendment.

Heh.

Ann Althouse said...

That's exactly the sort of overstatement that is not justified. The question is what does the text mean, and it isn't clear, and there is a whole line of cases to try to reconcile.

downtownlad said...

Oh - I'm not criticizing this particular decision, per se. I'm criticizing Scalia's inconsistency. The 21st amendment isn't exactly crystal clear on this point, which probably explains the 5-4 split. But section 2 of the amendment, based on a textual reading, makes it pretty obvious that states can control these things. I'm also criticizing the people who scream "judicial activism" every time the court overturns a law.

Why is it ok for Scalia to overturn New York's law on internet wine, when the 21st amendment makes a pretty clear case that this is left to the states, but then Scalia goes beserk when the court decides that "liberty" in the 14th amendment means that people have the right to control their sex lives without government interference? That's a rather obvious meaning of the word liberty to me. I would also think liberty includes things such as the right to travel, the right to reside in any state, the right to live with people I want to live with, etc.

If you go by original intent, as Scalia insists, I don't see how Scalia comes to the decision that he did in this case. It appears that Scalia tosses original intent out the window when it's not in his best interest. Let's say the case was about buying internet porn. Do you really think Scalia would have ruled the same way?

downtownlad said...

I'm not a lawyer by the way (but I play one on TV). So take my legal commentary with a grain of salt!

John Thacker said...

Justices Thomas and Scalia have both been skeptical of the negative commerce clause before. Justice Scalia is more willing to uphold it because he believes more in stare decisis than Justice Thomas. Several biographies and articles about Justice Thomas have shown that he is almost unconcerned with stare decisis.

"Scalia goes beserk when the court decides that "liberty" in the 14th amendment means that people have the right to control their sex lives without government interference? That's a rather obvious meaning of the word liberty to me. I would also think liberty includes things such as the right to travel, the right to reside in any state, the right to live with people I want to live with, etc."

Scalia is hardly against overturning any law; in addition, I think that there's a fairly strong case to be made that the 21st Amendment was only intended to operate up to the point of not allowing states to discriminate, or in other words up to the negative commerce clause. As you yourself state, it's a bit unclear on that. The negative commerce clause is a well-established doctrine of Constitutional law, and laws have been struck down on that basis before. Many states were wholly dry or wet, but I'm not aware of those that allowed intrastate but not interstate trade. By contrast, at the time of adoption of the 14th Amendment there were many laws prohibiting sodomy in nearly all states. It's quite clearly to me much more of a stretch.

What if someone thinks that liberty includes things such as the right to not have to join a union to work a job, to work more than 40 hours at normal pay rather than not work, to work despite being underage, to volunarily contract for less than minimum wage, etc.? It puts us back at Lochner.

It appears that Scalia tosses original intent out the window when it's not in his best interest.

Scalia's lead opinion in the Kyllo case about the police using heat lamps without a warrant to catch marijuana growers, and his opinion in the flag burning case argue against this logic.

chuck_b said...

Does this article "make the inner workings of this case interesting"?