IT WAS 100 years ago this week that Nebraska approved the 18th Amendment to the constitution, thus providing the necessary 36th vote — three-quarters of the then-48 states — for Prohibition. The 21st Amendment repealed it 14 years later but without abandoning totally a special regulatory regime for alcohol. Rather, the 21st Amendment returned the issue to the states, which is why Mississippi was still “dry” until 1966, and why, today, in Maryland, the Montgomery County government monopolizes wholesale distribution. In Tennessee, meanwhile, you can’t get a retail liquor license until you’ve lived in the state for at least two years.
The latter law was the subject of a felicitously timed Supreme Court argument Wednesday. It stopped Douglas and Mary Ketchum from going into the retail liquor business when they arrived in Memphis from Utah in 2016 , and it prevented Total Wine and More, a multistate chain based in Maryland, from opening in Nashville in 2016. These parties claim blatant discrimination against newcomers, which serves no purpose except to protect incumbent businesses — and which therefore violates the Constitution’s prohibition against state interference with interstate commerce.
Undoubtedly, Tennessee’s is a dubious law, but the problem for its opponents is precisely that the 21st Amendment returned liquor-control power to the states. The states may not discriminate against out of state products — as the Supreme Court confirmed in 2005 — but otherwise retain great discretion over sales and consumption. Enacted later than the Constitution’s interstate commerce clause, the 21st Amendment appears to represent a kind of special carve-out to address the special risks of alcohol.
If the court were to strike down Tennessee’s admittedly weird law on the grounds that the interstate commerce doctrine bars liquor-law discrimination against out-of-staters, it might have the effect of invalidating the common requirement that production, wholesale and retail business be carried on separately by in-state firms. “Isn’t that the next case?” Justice Neil M. Gorsuch wondered at Wednesday’s hearing. No doubt it would be; no doubt that is why Total Wine is eager to set a broad precedent. And no doubt market efficiency would be maximized if beer, wine and spirits could be sold freely over the Internet, like books and shirts.
However well it might correspond to modern consumer expectations, that result would not fit the clear intent and meaning of the 21st Amendment, a product of a very different time and culture but no less binding a piece of constitutional text for all that. Fortunately, opponents of the Tennessee law have offered an alternative rationale for striking it down: that it violates the constitutional clause guaranteeing “citizens of each state . . . all privileges and immunities of citizens in the several states.” This language seems to encapsulate better the alleged harm in this case, which is arbitrary discrimination against individual business owners, not obstruction of commerce.
The Supreme Court can either send the case back to lower courts for reconsideration on this basis or issue a ruling itself. Either way, the goal should be to attack one state’s vestigial, irrational law while leaving the bigger wine cases for another day.