Mundane case interpreting the 21st Amendment with interesting concurrence

Admit it. You had no idea that the federal courts are hearing cases under the Twenty First Amendment to the U.S. Constitution, the amendment that repealed prohibition. I wasn't aware of this either, but the Second Circuit just issued a ruling that analyzes the Twenty First in the context of out-of-state wine sales in New York. Kind of interesting, to be sure, but even more interesting is the concurring opinion.

The case is Arnold's Wines v. Boyle, decided on July 1. The case addresses two competing constitutional amendments. The Twenty First says that you cannot bring intoxicating liquors into a state in violation of the laws of that state. The Commerce Clause, however, says that Congress shall regulate interstate commerce. So the Twenty First -- which grants states authority to regulate interstate wine commerce -- is an exception to the Commerce Clause, which broadly grants all other interstate commerce authority to Congress. The Court of Appeals (Wesley, Calabresi and Walker) holds that New York can legally enforce a statutory scheme which prohibits out-of-state wine retailers from selling directly to New York consumers; the liquor must first pass through an entity licensed by the state.

This is an important issue to wine sellers and wine drinkers. But most people probably will not read the opinion. It's not a bad idea to read Judge Calabresi's concurring opinion, which raises interesting issues about how the Supreme Court has modified its interpretation of the Twenty First over the years in light of public attitudes toward alcohol consumption. In other words, the public debate over whether we have a living and evolving Constitution (on issues such as privacy, search and seizure and punishment under the Eighth Amendment) has not focused at all on the amendment that repealed prohibition.

As Judge Calabresi notes, the Supreme Court initially interpreted the Twenty First strictly. That amendment was enacted in 1933, the only time that one amendment repealed another (the Eighteenth Amendment made it illegal to manufacture or sell alcohol). Our focus is on Section 2, which allows states to regulate the importation of alcohol across state lines. Consistent with "evidence that the intent of section two was to give complete regulatory authority to the states over alcohol," "the Supreme Court 'made clear in the early years following adoption of the Twenty-first Amendment that by virtue of its provisions a State is totally unconfined by traditional Commerce Clause limitations when it restricts the importation of intoxicants destined for use, distribution, or consumption within its borders.' And, in this period, the Court upheld near-total control over domestic alcohol commerce by states, even to the point of opening the door to 'liquor-related political trade wars among the states.'”

So, early in the life of the Twenty First, the Supreme Court strictly interpreted that amendment, letting states do what they wanted. But that changed. In 1964, the Warren Court backed off a strict interpretation, and began to strike down certain state laws that regulated the sale of alcohol. A more conservative Court in the 1980's continued to lighten up when it came to the Twenty First.

After reviewing the evolving Twenty First amendment case law, as one of the eminent scholars on the federal courts, Judge Calabresi next asks why this is happening and what it all means. "It appears that the Supreme Court has increasingly 'updated' the Twenty-First Amendment, and it is this judicial process that I wish, briefly, to discuss." Judge Calabresi notes that "When the Twenty-First Amendment was first adopted and courts interpreted section two to authorize virtually limitless state regulation, the United States was a different place than it is today. Laws frequently regulated “morals,” and alcohol was often viewed as immoral. And even setting 'morals' aside, the prevailing view of alcohol was that it was a unique product that posed unusual dangers, both directly as an intoxicant, and indirectly, as a stream of commerce that generated corruption and crime."

Those days are long behind us. We are forging ahead, as Justice Stevens noted in a case decided in the 1990's, stating, "[t]oday many Americans, particularly those members of the younger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.” But, Justice Stevens went on, “[t]hat was definitely not the view of the generations that made policy in 1919 when the Eighteenth Amendment was ratified or in 1933 when it was repealed by the Twenty-first Amendment.”

What do we do about the "seeming anachronistic legal provisions" that come before judges from time to time? Judges can interpret statutes more freely than constitutional provisions, because the constitution is much harder to amend than a statute. After outlining some of the thinking on this issue, Judge Calabresi (who wrote a book in 1982 entitled "A Common Law for the Age of Statutes"), concludes that the Supreme Court will have to deal with the problem of an evolving interpretation of an amendment, not the lower federal courts like the Second Circuit. "If the Supreme Court wishes further to meld the Twenty-First Amendment into the broad constitutional landscape, so be it. But unless and until it does, Judge Wesley’s analysis seems to me to be exactly right, and I gladly join his opinion."

The concurrence has an interesting footnote. In the context of discussing the use of history to interpret constitutional amendments, Judge Calabresi reveals a personal anecdote:

Distinguished jurists have, on occasion, been even more skeptical of court uses of history. I once suggested to Justice Felix Frankfurter that the clause in the Constitution requiring that the President be “a natural born Citizen . . . of the United States” meant only that if a person was born out of wedlock (i.e. “naturally born”) that person had to be a Citizen at birth to be eligible to be President. I did this jokingly, knowing that Frankfurter, like me, had been born abroad. I added, even more fancifully, that the clause was likely there to exclude from the Presidency the much admired, but also feared, Alexander Hamilton, who was said to be of “illegitimate” birth. The scholar-justice immediately answered, “I’ll buy that,” and then added—not in jest, I believe—“and anyway it’s as good as most of what goes for history on this Court!”

Rarely does any judge write in the first person in discussing conversations like this. This anectode was not really necessary to Judge Calabresi's analysis, but of course it's interesting enough that it should be published somewhere, right? At the time of Judge Calabresi's conversation with Justice Frankfurter, Calabresi was not yet a judge; Justice Frankfurter was on the Supreme Court from 1939 through 1962. This conversation may even have happened when Calabresi was clerking for the Supreme Court in the late 1950's. It's been maybe 50 years that Justice Frankfurter had this conversation with Guido Calabresi. It's no longer under wraps, and it will be enshrined in the Federal Reporter, Third Series, forever.