While it’s no secret that lawyers tend to embrace the Twenty-first Amendment and the legalization of alcohol more than the average American, the repeal of Prohibition is not a topic oft found on the SCOTUS docket. However, Tennessee Wine & Spirits Retailers Association v. Blair is here to liven up the term. (Technically, Tenn. Wine & Spirits Retailers Ass’n v. Byrd landed on the docket, but Mr. Byrd has since fledged, with ABC Interim Director Zackary Blair now party to the federal case.) Anyway, the case began with a challenge to the state of Tennessee’s durational residency requirements for liquor licensing. The state requires applicants to have resided in the state for a certain amount of time in order to be eligible. Two firms looking to sell liquor in the state took issue with this requirement, claiming discrimination against out-of-state persons. And what do we usually see when someone argues against a state discriminating against out-of-state actors? We usually see the dormant Commerce Clause, and this case is no exception.
We dealt with the dormant Commerce Clause last term in Wayfair, so I won’t rehash its history here. Suffice it to say that the Supreme Court generally frowns upon state actions that prejudice interstate commerce. However, because we’re talking liquor, we are dealing with a product that has a unique history within the US constitutional system. Most everyone knows that the Progressive Era gave birth to, among other things, the Eighteenth Amendment, which enabled both state and the federal government to effectively prohibit booze in the country. When that didn’t quite pan out as expected, Congress reversed course and sent a proposed repeal of that amendment to the states for ratification.
The result was remarkable for three reasons. First, this was a time when people used the amendment process to change the constitution rather than convince five or more lawyers to change it by decree. Second, the ratification process was also particularly unique, with the 21st Amendment being the only constitutional amendment to date ratified by state conventions rather than state legislatures. Third, the amendment explicitly reserved for the states the authority to ban alcohol, which is at the core of the question before the Court. Section 2 provides:
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.
The District Court found that the dormant Commerce Clause won a tug-of-war between the with the 21st Amendment, and the circuit court agreed. In their wisdom, at least four Justices thought that the case deserved another look, with arguments scheduled for January. While I don’t expect a whole lot of fireworks (well, Justice Thomas may strike as harsh a tone as he can over the dormant Commerce Clause, which is probably again on his naughty list for Christmas), I do find the dichotomy between these two constitutional tenets to be intriguing for one specific reason. The text of the 21st Amendment has its foundation as part of the constitution. The dormant Commerce Clause is wholly a product of judicial alchemy with no basis in the text of the constitution. Despite what the average Joe on the street might see as a deficiency-a constitutional doctrine that cannot be found in the constitution-lower courts went with the dormant Commerce Clause.
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Ryan Adler is a Superforecaster and Director at Good Judgment who specializes in legal analysis for Good Judgment’s question writing team. He also administers the SCOTUS Challenge on Good Judgment Open, which invites probabilistic thinking about court decisions. Ryan can be reached at firstname.lastname@example.org.