16 May 2005

Wining and Dining

The Perfesser should be pleased: his wine-blogging now looks to have the chance to benefit from some real competition. In the prices and availability of its subject, that is. The Supreme Court has decided that states cannot prohibit customers from ordering directly from wineries across state lines.

What I find most interesting about this opinion is that it may mark the limit of this Court's willingness to restrict the scope of the Commerce Clause. The reality is that virtually anything these days has some impact on interstate commerce; unlike the 18th century, before railroads and interstate canals, there is nothing that can really be called a "state's economy" that is not interdependent with at least its neighbors. Consider, in this instance, what goes into making and shipping a bottle of wine. Very few of the grapes are truly indigenous to the US, so they had to come from somewhere. The training of vintners, the yeast cultures, the barrels for aging, the bottles and corks—not to mention the armies of migrant workers who pick the grapes—all have connections to out-of-state sources, even in as large a state as California. Then, too, no winery purposely bottles its wines for in-state consumption; even California's internal market is not big enough for this kind of xenophobia (oenophobia?). This parallels the rationale underlying Heart of Atlanta Motel v. US, 379 U.S. 241 (1964), which noted that 75% of the motel's travellers were interstate travellers.

In recent years, the Court has shown somewhat more skepticism toward "unlimited" application of the Commerce Clause, as when it ruled that a provision that prohibited carrying guns within a school zone (US v. Lopez, 514 U.S. 549 (1995)) exceeded Congress's power under the Commerce Clause. I think that the real distinction between Lopez and Granholm (today's case) is the direction of regulation, and nothing substantive. In Lopez, the questioned regulation restricted the right of an individual to exercise another presumed right, and used the Commerce Clause as the basis for asserting that restriction. In Granholm—it seems somehow disingenuous to refer to only one of the two sets of parties, as they involve different sovereign states, and even the underlying opinions go in opposite directions—the questioned regulation restricts the right of an individual to engage in interstate commerce under certain circumstances. Note, too, that in Granholm the Commerce Clause is operating silently: There is no specific federal legislation in the area. So what we might have here is a rule that the Commerce Clause can only be used to expand preexisting rights absent direct and obvious connection to interstate commerce. Another way of phrasing this is that the Commerce Clause is to be interpreted to narrow government power to regulate anything that concerns interstate commerce, whether positive regulation by governments to prohibit commercial activities or through indirect effects from apparently unrelated regulation (such as "school safety").

Now tie this up with some truly strange history related to the 18th and 21st Amendments and pre-Prohibition liquor control (all of which leaves one wondering why Scalia joined this opinion, instead of writing a concurrence), the impact of 44 Liquormart's refusal to allow the 21st Amendment to somehow empower states to enjoin other constitutional rights, and a really strange constellation of opinions:

  • Opinion by Kennedy, joined by Scalia, Souter, Ginsburg, and Breyer
  • Dissent by Stevens, joined by O'Connor
  • Dissent by Thomas, joined by Rehnquist, Stevens, and O'Connor
and we end up with:
A very young opinion, with a strongly cellulose nose and hints of lampblack and slightly rancid soybean oil. The main taste is rather excessive, with distinct flavors of dogmatism and original intent over a musty base of unreality. The finish is rather muddy, leaving both bitter and sweet notes. This vintage is perhaps too young for consumption and appears to have little in the way of legs.