Today’s U.S. Supreme Court Decision on Interstate Commerce

by Liberty and Power

As readers may be aware, today a divided (5-4) U.S. Supreme Court held that state laws restricting interstate shipments of wine were unconstitutional. Interestingly enough, Scalia sided with the majority and Rehnquist joined Thomas in the dissent.

Although I follow developments in U.S. constitutional law with some interest, I’m not an attorney and I’m open to persuasion on which side made the better case in terms of (a) a plain reading of the U.S. Constitution (which itself is not without ambiguity) and (b) current U.S. constitutional law—which, of course, are two very different arguments. For the record, my own view of limited constitutional government is that it alone has a very limited ability to constrain government (pun intended) without supportive public opinion, and I see this as a further argument for private property anarchy vis a vis limited constitutional government.

That said, my main purpose in posting about this topic now is to alert readers to how some self-identified libertarians who celebrate the virtues of the U.S. Constitution will almost certainly welcome today’s decision irrespective of the constitutional arguments, and to observe that such a stance seems to me to be an intellectually dishonest position.

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Sheldon Richman - 5/26/2005

Isn't the ruling consistent with the Constitution's main purpose, which was to establish the U.S. as a free-trade zone, at least internally?

Sheldon Richman - 5/26/2005

Isn't the ruling consistent with the Constitution's main purpose, which was to establish the U.S. as a free-trade zone, at least internally?

Grant Gould - 5/17/2005

Well, I think there's plenty of room for intellectual dishonesty on both sides, but nobody on either side need be particularly dishonest. The interpretation of the commerce clause and of section 2 of the 21st is not an open-and-shut matter, and there's plenty of room to fit your interpretation to your preferred outcome, whatever your view. But there is also plenty of room for honest views on both sides, too.

When you look at libertarians, I think there are enough strands in that movement to make a lot of room. The classic copy-of-the-constitution-in-my-pocket libertarians are traditionally textualists, and might well foster a certain amount of intellectual dishonesty in this matter. Someone with a more nuanced or academic view of the text -- a Randy Barnett-style originalist, say -- might by contrast genuinely believe that the text was understood at the time of enactment to apply the Webb-Kenyon rules (as the court found, more or less) and so find the court's view quite correct. And someone of the Spoonerite or outright anarchist fringe might reject the constitution out of hand and hail the decision simply on its merits as an advance for freedom. Libertarianism is a surprisingly large tent in this respect.

That said, I do agree that a lot of the pocket-constitution libertarians are probably being a bit dishonest on this. I don't think that most people would read section 2 the way the court did. But I also don't know how many of those old pocket-constitution libertarians are still around -- the younger end of the movement these days seems much more oriented toward the academic and the radical fringes, both of which are likely to be perfectly honest in their approval of the ruling.

Mark Brady - 5/16/2005

Thank you, Mr. Gould, for your analysis which I found very helpful in understanding the constitutional questions involved. I look forward to reading the majority and minority opinions in the light of your remarks. Do I understand you as saying that the stance I described need not be as intellectually dishonest as I supposed?

Grant Gould - 5/16/2005

The whole dispute here is what precisely section 2 of the 21st amendment means.

Everyone agrees on its general purpose: It was meant to write into the constitution a compromise to make sure that states could be dry without getting into interstate commerce clause trouble. The problem is the specifics.

The text of section 2 is drawn from, but is not the whole of, the Webb-Kenyon act, one of the many compromises attempted when people were trying to recconcile state dry laws with the federal constitution's designation of interstate commerce as a federal matter. The Webb-Kenyon act simply designated federal law to be a prohibition on whatever state law prohibited. Because it was a law and not a constitutional amendment, it was subject to the "dormant commerce clause" -- the well-understood prohibition on discrimination between the states in federal regulation of commerce. That meant that states couldn't create liquor laws that discriminated against out-of-state booze and expect Webb-Kenyon to enforce them at the state line.

So the big question is, was section 2 meant to enact exactly the same thing -- to in essence raise Webb-Kenyon to the constitutional level -- or was it meant to override the commerce clause entirely in the case of alcohol. It seems to me that a plain reading of the section would imply the latter, but the legislative history and judicial precedent clearly and unambiguously prefer the former.

So it seems to me that if you're some flavor of textualist, this is a hard question but might favor the states; if you are a fan of stare decisis (precedent) or of deferring to legislative intent, it is an easy question and clearly favors the wineries.

In any case, it's a win for libertarians and constitutionalists in that the decision gives a clear standard devoid of any of the "balancing tests" and "compelling state interests" with which the court has been prone to vandalize the constitution. On a potentially hard question like this, that's really more important than the outcome.