This thread and the various discussions in it remind me of the first parent work day that I attended at our children’s elementary school: Six prominent Los Angeles lawyers trying to figure out how to hang a door to the shed in a play yard. It took many hours, cost in hourly rate many thousands of dollars, and resulted in a dog’s breakfast of a door that was removed shortly thereafter and properly installed by those who knew what they were doing.
Confession: I was one of the lawyers, but by no means the most prominent or billing at the highest rate. Thereafter, I cut a check. More effective and a better allocation of time, resources, and effectiveness.
I am not a lawyer and I am just commenting to be able to follow this thread more easily. That said, I live in PA and work in DE, and unfortunately, NY is the only place I am able to source certain producers. There is no legal way for me to get the product.
Jay, you are absolutely correct. A couple years ago it became clear that wine consumers wanted a way to stay abreast of the issues that impact their access to wine. They wanted a way to weigh in when bills were introduced that would impact that ability to access wine. So, NAWR created WineFreedom specifically for that purpose. The impact was thousands of consumers being able to directly contact the lawmakers considering these laws and frequent updates on bills and legislation that impacted consumers.
The Consumer Brief is not underwritten by NAWR. It’s consumers alone that are funding that brief and it will be consumers’ names on that brief and it will be a brief that takes up the interests, constitutional or otherwise, that are laid out in that brief. NAWR will be submitting its own brief that makes the constitutional argument against discriminatory laws impacting retailer shipping.
I hope I’ve been clear that I fully support a Wine Berserkers brief. My only suggestion is that you coordinate with the folks who are also writing a consumer brief. As I think Neal pointed out above, it’s a good idea not to have two briefs that make identical arguments on behalf of the same people.
The Supreme Court will hear a case early next year that has the potential to overturn the many state laws that bar consumers from receiving wine shipments from out-of-state wine stores, internet retailers, wine-of-the-month clubs and wine auction houses. This is the most important wine consumer case to come before the court in years.
There is an important effort led by WineFreedom.org to issue a wine consumer-oriented “Friend of the Court” brief so that the U.S. Supreme Court justices understand why this issue of wine shipping is so important to wine lovers.
This important Wine Consumer “Friend of the Court” amicus brief is to be funded entirely by consumers. Please take a moment and help this effort. $25,000 must be raised to pay for the writing, printing and distribution of this important consumer oriented Supreme Court brief.
PS - I can’t speak for the rest of the guys and gals who volunteer to help, but my hourly rate for this project is $0.00. AND if the court issues an expansive reading in favor of interstate shipping, we will have one hell of a celebration in New York. I will provide my share of rocket fuel and if Alfert wants to bring some of that poopy Loire stuff, we can have that too.
I’m trying to come up with a way to frame an argument based upon Granholm, which I read last night, that with the advent of the Internet, Federal Express, jet airplanes etc., etc., the United States as a consumer market shrinks due to the advent of technology, and thus the ability of a state to create limitations on interstate purchase of goods is somehow as burdensome and unconstitutional as a burden on the liberty interest of the right to travel, and thereby try to extend Kent v. Dulles to cover purchase of goods as well as physical travel. I no longer need to travel to California to buy wine. I can sign on to the Internet and do it electronically and my virtual presence at a California Internet site is no different than my physical presence there attempting to buy that bottle of 2009 MacDonald that they will only sell me for $1,000,000. Unfortunately, I think the originalists will go batshit crazy over such an argument.
I may be of interest. 14 different groups and associations have filed Amici briefs supporting the restrictive TN law and arguing that restrictions on retailers, whether they burden interstate commerce or not, are constitutional. In addition, the TN Wine & Spirit retailers have filed their initial brief in the case.
It should also be noted that more than one of these Friend of the court briefs argue that the Granholm decision was improperly decided and SHOULD BE OVERRULED.
I don’t have time today to read all those briefs, but I scanned a few.
One, from Center for Alcohol Policy, makes essentially prohibitionist arguments that higher prices and limited availability are desirable in that they reduce alcohol consumption. Another, from Consumer Action, makes a contradictory argument that allowing competition from out of state would result in decreased availability.
With so many briefs all arguing in the same direction, I’m not surprised there are contradictions between them.
The key argument that most of them make is that the dormant commerce clause does not apply to state alcohol laws that address the core concerns of the 21st amendment and that don’t discriminate against out of state producers. Some go much further than this, but this is the key element of most.
Never bothered to get admitted to the US Supreme Court. But, I agree that regurgitating others’ arguments is a waste. Putting this a little simpler for the non-lawyers amongst us, it should be stated that this is the Supreme Court so the issue must be whether the law conflicts with the Commerce Clause of the US Constitution, and which has more weight, the State’s rights or the US. Constitution. I might not be thinking this through completely (being from a state where I can get all the wine I want by mail), but it seems to me that the constitutional and federal commerce rights vs. the state’s interest in restricting commerce is likely to be the core argument of every other brief. I think I will donate to the Gofundme page as well. But thanks for pointing this out.
“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.”
Can the SC declare an amendment unconstitutional? Because if not, as much as it pains me, I don’t see how the Commerce Clause supersedes this pretty straightforward language.
Not a lawyer, but… The SC doesn’t have to declare the 21st Amendment unconstitutional. They just have to declare the state law unconstitutional. 21st doesn’t give a state the right to pass laws that are otherwise in violation of the Constitution.
And this is why lawyers get paid so much. Because they create conflicts that can’t be resolved without them
My point is: how does a simple, single sentence, which says that a state can control transportation and importation, not take precedence over any other part of the Constitution? Particularly as it was written long after any other part that could be invoked, so presumably took that into account?
It would seem that Congress’s power “to regulate Commerce among the several States” takes a back seat to a specific amendment that grants states the right to specifically regulate intoxicating liquors. Particularly as Congress itself proposed and passed the amendment.
It probably was 25 years since I looked at anything other than the 1st, 4th or 5th Amendments… Alan’s point is well taken. The amendment clearly gives the States the right to decide their own destiny when it comes to intoxicating liquors. It may then be whether, as applied, the state law is somehow discriminatory or otherwise conflicting of Federal Law. I like the argument citing the Commerce Clause and pointing out how the State law limits the consumer choices to what the State may want to allow, keeping buyers from small producers who ship direct and don’t distribute (like Jay’s McDonald analogy). But, it seems that the Commerce Clause may be mooted by the Amendment allowing States to control what is best for them. And I have done no research, but I assume that the “Blue Laws,” prohibiting sale of alcohol on Sundays in some states, were challenged and upheld. It seems like it would be the same argument, but even the Blue Laws discriminate against some groups - like for example, people whose Sabbath is not on Sunday (like me).
I guess I can say I’m lucky my parents moved to CA from CT in 1970!
You’re very astute. The question is how to reconcile the commerce clause and the 21st Amendment when the text seems to conflict. Courts will try to give effect to both if they can – to assume that the latter provision was not intended to negate the prior one. When it is not possible to harmonize them – when the two are unavoidably inconsistent, courts will often favor the more recent or the more specific provision; in each instance, the “tie” would go to the 21st Amendment. That is what makes the case difficult.
The argument is that one can harmonize the two in a way that gives the state nearly complete power to regulate in-state alcohol sales and production under the 21st A so long as doing so does not put an undue burden on interstate commerce. If the regulation treats in-state and out-of-state producers and retailers equally, both can be give effect.
I’m no lawyer, just a wine loving consumer who thinks the States right to regulate import language in the 21st Ammendment is total bull crap. It is now 85 years since repeal of prohibition and wine is readily available in all states. The only aspects of the wine trade that are actually controlled currently are variety and pricing. These anti consumer laws only protect the three-tier special interests. This annoys me to no end.
It annoys all of us. And I hope the SC rules incorrectly (in my view), and compels states to allow shipping, in spite of the amendment. But the real way to achieve that is to prosecute legislators and governors for corruption for how they act on behalf of wholesalers based on financial contributions. A man can dream, anyway
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