Activist on alcohol?

George Will

5/22/2005 12:00:00 AM - 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     This one: The 21st Amendment, which repealed the 18th, thereby ending prohibition, says: ``The transportation or importation into any state ...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.''

     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.