George Will

WASHINGTON -- Last week, on the eve of the Senate fight over filibusters of judicial nominations, the Supreme Court handed down a timely ruling. It illuminated the ambiguities of the vocabulary used in discussions of judges and the craft of construing the Constitution.

     The case concerned Michigan and New York laws that forbid the interstate sale of wines directly from wineries to consumers. Each state grants its in-state wineries direct access to the state's consumers, but requires out-of-state wines to be sold through wholesalers. They, and in-state wine makers, profit from the laws, which are examples of what economists call rent-seeking -- the use of public power to disadvantage competitors.

     The states say the laws serve legitimate local interests by simplifying tax collection and reducing underage drinking. But during last December's oral arguments, the two states' solicitor generals could not convincingly say how, and Michigan's said that the Constitution's 21st Amendment permits ``mere protectionism'' by states concerning alcoholic beverages.

     Article I, Section 8 supposedly defines the federal government as one whose powers are limited because they are enumerated. But among the enumerated things ``Congress shall have power'' to do is ``regulate commerce ... among the several states.'' As a result of capacious and sometimes meretricious definitions of what constitutes interstate commerce, this enumerated power has become an almost boundless grant of power to Congress because almost anything can be said to have some pertinence to commerce.

     But the commerce clause is clearly pertinent to the interstate sales of wines. So this clause looks like a scythe sharp enough to cut down laws interfering with Internet and other direct wine sales to individuals. What defense could New York and Michigan offer?

     This one: The 21st Amendment, which repealed the 18th, thereby ending prohibition, says: ``The transportation or importation into any state ... for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.''

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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