Last week the court held, 5-4, that the commerce clause trumps the 21st Amendment. The Amendment, the court held, empowers each state to regulate the distribution of alcohol within its borders but not to discriminate between in-state and out-of-state businesses for the financial benefit of the former. However, the dissenting minority said that even if Michigan's and New York's policies are unwise or unseemly, the 21st Amendment took such policy choices away from judges and gave them to the states.
Last week's ruling divided the justices into unlikely cohorts, thereby providing a timely reminder that concepts such as ``judicial activism,'' ``strict construction'' and ``original intent'' have limited value in explaining or predicting the court's behavior.
Writing for the majority was Anthony Kennedy, joined by Antonin Scalia, perhaps the most conservative justice, and two of the most liberal -- Ruth Bader Ginsburg and Stephen Breyer -- and David Souter. Clarence Thomas, writing for the dissenters, is the most conservative if Scalia isn't. He was joined by the three oldest justices -- John Paul Stevens, 85, perhaps the most liberal, and William Rehnquist, 80, and Sandra Day O'Connor, 75. Those three are old enough to remember the importance voters once attached to states' widely varying approaches to regulating alcohol.
In a separate dissent joined by O'Connor, the liberal Stevens argued for respecting the intent of the authors of the 21st Amendment's clear text. Today, he said, Americans regard alcohol as just another consumer product. But that was not the view of the generation of Americans who took alcohol so seriously that twice in 14 years they put amendments in the Constitution -- the 18th in 1919 and the 21st in 1933 -- pertaining to alcohol.
``Indeed,'' Stevens said, ``the fact that the Twenty-first Amendment was the only amendment in our history to have been ratified by the people in state conventions, rather than by state legislatures, provides further reason to give its terms their ordinary meaning.'' Stevens noted that former Justice Hugo Black, who as a U.S. senator from Alabama participated in sending the 21st Amendment to the states for approval, said it was intended to return ```absolute control' of liquor traffic to the states, free of all restrictions which the commerce clause might before that time have imposed.''
So, when the court overturned the policies regarding wine traffic set by representatives of the people of Michigan and New York, was it practicing ``judicial activism''? Was it strictly construing the Constitution's text as illuminating by the discernible intent of the authors of the text? During this week's argument about judicial nominees, remember last week's division on the court.