Vice Squad
Thursday, May 19, 2005
The Internet Wine Case

I finally got around to reading the opinions (available here) in the internet wine case. It was a close call. My untutored view is that the closest cases to this one, which occurred both pre-Prohibition and in the immediate aftermath of Prohibition, suggest that the discriminatory New York and Michigan laws should have been upheld. But the more recent cases that touched on the 21st Amendment, though by and large not as directly on-point as the earlier cases, suggest that the non-discrimination principle should apply despite the 21st Amendment. It was close for a reason.

At any rate, having read the opinions, I am not discouraged by the result. (I suppose I could have managed to think this through without reading the opinions, but somehow, I wasn't able to.) My general concern is that when other fundamental principles -- principles that I generally support, like free speech and free trade -- are allowed to trump vice policy, that we will end up with both an erosion of those principles and poor vice policy. But here, the overall alcohol regulatory policy of a state is not really at stake. The Court, by overturning controls that discriminate against producers in other states, does not (at least directly -- who knows what the future ramifications might be? --) limit the restrictiveness of any state's alcohol policy. The dormant Commerce Clause has here trumped some alcohol controls, but not an alcohol policy. That's fine by me -- not that anyone asked!

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