The Odd Clauses (15 page)

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Section 1, of which provided: “The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”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?