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Comment by CalChris | Hacker News Reader

The title is a little (not a lot) misleading:

  Wines Are No Longer Free to Travel Across State Lines

Later in the article, it points out that There’s no jurisdiction for retailers at the federal level. No law was enacted at midnight last night. Instead, 14 states including CA + DC allow importation across state lines. Moreover, the laws in the other states only apply to retailers and not to vineyards (Granholm v. Heald). The change seems to have been that UPS and FedEx are now enforcing this in the other 36 states. Maybe this is a better title:

  In Some States, Wines Can't Be Bought From Out Of State Retailers

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I don't understand. How is this not a straightforward violation of the Interstate Commerce Clause?

The 21st Amendment (which repealed prohibition) explicitly grants states the right to regulate alcohol imports and possession.

Even if that weren't the case, it says:

    [The Congress shall have Power] To
    regulate Commerce with foreign Nations,
    and among the several States, and with
    the Indian Tribes;

I.e. not that the Federal government must regulate interstate commerce, merely that it has the power to do that, and even if it said that the commerce must be regulated it could still be regulated to the effect that you couldn't e.g. sell across state lines.

But yes, the reason the regulation is different for alcohol than for other goods is ostensibly the 21st.

I’m not sure what you’re saying here. It’s not that the feds must somehow regulate interstate commerce, it’s that the states can’t. The 21st carves out an exception.

I'm pointing out that the states forbidding commerce across state lines is not a violation of the commerce clause per-se. Rather it's a violation of how the federal government has chosen to use the rights it's granted by the commerce clause.

I.e. it's just the academic point that it's not inevitable that the Federal government uses the power of the CC to enforce free trade between states, that's just how it's chosen to implement it.

I.e. there could be an alternate timeline of the US where the CC enforces the ability of individual states to impose interstate tariffs up to some threshold, similar to how the EU manages agriculture quotas within the single market.

Meaning that, pre-21st, the states could have regulated this if there was a federal law saying they could? Or perhaps merely if there was no federal law saying they couldn't?

I may be wrong about this, but my understanding of the CC is that if say Nevada were to enact a law saying that sales to California were subject to tariff they wouldn't be found to be in violation of the CC. Instead they'd be found in violation of some federal code that the government could enact because of the CC.

I.e. the CC isn't some clause saying that free trade between states must be respected at all cost (sans the 21nd). Otherwise why would there be a federal drug law on the basis of the CC? That's a prohibition of the sale of certain goods on the back of prohibiting sales across state lines on the back of the CC.

Hence the indirect reply to SeanLuke upthread. This is not a violation of the CC, but of some federal statute enacted on the basis of the CC.

The distinction matters because if the CC isn't an amendment that ensures free trade the federal government could just as well use it to ensure trade restrictions between states as free trade, which it mostly does today.

When interpreting a text, and it appears that two statements appear to be in conflict, the more specific statement is to be followed.

The interstate commerce clause gives Congress the power to regulate (make normal) commerce between the states, removing the power of states to impose tarrifs or other barriers to trade. This was a big problem at the time. The 21st amendment specifically makes an exception to this general clause in the case of intoxicating spirits.

In the case of Amendments, it isn't the more specific but rather the more recent. So the 21st carves out an exception in the Commerce Clause, Article I, Section 8, Clause 3.

Otherwise, yeah, the Articles of Confederation weren't working.

This was the crux of state regulators' arguments in Granholm v. Heald, and it failed there.

From Wikipedia: "The context of the 21st Amendment, they wrote, was to return to the status quo that existed before Prohibition, making it clear that the states had the power to regulate alcohol however they wished, including banning alcoholic beverages entirely within the state if desired. Before Prohibition, the states did not have the power to violate the Dormant Commerce Clause, and the 21st Amendment was not intended to grant them this power."

But also see "dormant commerce clause."

I spy a law student. The DCC is the stuff of conlaw nightmares.

Alcohol has existed outside the Commerce Clause since Prohibition, as outlawing its sale was done via Constitutional amendment, rather than legislation. Same with repeal. Amendments supersede reserved Congressional authority. The result of this is that regulations on the sale and distribution of alcohol operate entirely differently than any other American industry (and is particularly vulnerable to regulatory capture). For example, try buying a Texas beer (in a store or bar) outside of Texas not called Shiner or Lone Star. It's very difficult, as Texas laws make it difficult to impossible for craft brewers to export across state lines. The biggest fans of those laws? Shiner and Lone Star.

You can’t “violate” the interstate commerce clause; it grants powers, doesn’t limit them.

(It, along with “necessary and proper”, have been used to justify just about every activity the federal government has done.)

So many people get this backwards, although I think some of this is the Constitution's fault. Originally it was a list of rights the government had, with the understanding that the states retained the rest. Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional. Of course in practice we've read between the lines a lot with the original constituion, so it makes some sense that we also set some hard limits to what we can't do. But still, it makes it really confusing and leads to a lot of "interesting" legal beliefs by people who aren't familiar.

>Then the bill of rights added a few civil liberties, i.e. rights the government specifically did not have. Theoretically this shouldn't make a difference, because anything not listed in the constitution was already unconstituional.

I don't think this is true even for the strictest originalist interpretation possible. Without the Bill of Rights, Congress and the President would have much more expansive power in their creation and especially enforcement of law.

The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers. The major function of the Bill of Rights is to draw lines around those powers, lines that perhaps existed in the common law, but that could have been altered by Act of Congress in the absence of a constitutional provision.

There are also parts of the Bill of Rights which do constraint Congress's enumerated powers. For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly. It could prohibit the publishing of certain newspapers across state lines, for instance. The First Amendment prevents that kind of thing.

If I recall correctly, Madison’s original position was that the content of the Bill of Rights (and more besides) was already implied by the Constitution, and that the document was superfluous and possibly harmful if it led to people considering rights not explicitly mentioned to not also be part of the Constitution. He changed his mind, however, as a pragmatic gesture toward unity and compromise with the Anti-Federalists.

The position that he and Hamilton took was somewhat incoherent in my opinion, since the Constitution did list rights, like the prohibition on ex post facto laws and bills of attainder, and the guarantee of habeas corpus except in times of insurrection.

Hamilton made an interesting argument in Federalist 84, that rights like freedom of the press and of speech are too vague to belong in a legal document, since their interpretation would necessarily be determined solely by political winds. Compare to the more concrete prohibition of ex post facto laws, for example. Nevertheless, the majority of the Bill of Rights turned out to be more like those concrete provisions. The First and Second Amendments are the most notable exceptions, and his predictions have partially panned out. Thankfully, it's been for the better anyway: freedom of speech as we know it would not exist without the First Amendment.

He was very wrong. The sedition acts made it pretty clear that without explicit protection, the government can and will abuse its powers.

>For example, even under a strict originalist interpretation, the Commerce Clause would allow Congress to take actions that abridge the freedom of speech, religion, and assembly.

>The Constitution does not establish a process for the federal government to investigate, detain, try, and punish people for violating its laws, though it is clear that it must have those powers.

These are great examples, and I think they cut straight to the heart of the issue. Would the ideal solution be to rewrite the Constitution as a truthful, detailed, and exhaustive list of the powers the government does have, or would it be best to list only restrictions to the government's power? Or is a mix necessary, despite the inherent contradictions?

People seem to forget this all the time, even though it's obvious. The Constitution is an atrociously written document, by modern standards of technical writing. The 18th Century predates the modern notion of technically precise writing. Look at Newton's writings, for example.

Your interpretation is the reasonable one, but the people who matter (a majority of the Supreme Court), don't agree. https://en.wikipedia.org/wiki/Dormant_Commerce_Clause

Justice Thomas and the late Justice Scalia, and others before them, shared your view.

States can violate it. It's called the dormant commerce clause.

...and fungibility, and states-secrets.

How can anyone not understand something without which an iconic, key piece of American culture would have had no basis?

I'm thinking of Smokey and The Bandit, of course.

Thanks to them having been born in a future that doesn't even know what Smokey and the Bandit is, and where Pedro Pascal is their Burt Reynolds.

From here[0], the 14 states that are allowed (plus CA and DC):

Alaska, California, Idaho, Louisiana, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, North Dakota, Oregon, Virginia, Washington, D.C., West Virginia, and Wyoming

[0]: http://people.com/food/wine-shipping-laws-crackdown/

As a resident of Seattle, it took be a minute to register that "Washington" in that list is part of DC.

Style note: when crafting lists whose members include commas, a semicolon is the preferred delimiter. For example, we could amend the above to "... Virginia; Washington, D.C.; West Virginia..."

In this case, I’d prefer “D.C.” or “the District of Columbia”, to avoid both the ambiguity of the original and the awkwardness of using semicolons.

It's also (imho) more stylistically correct to not mention Washington.

The District of Columbia was originally called 'The Territory of Columbia' as a Federal District, and the 'City of Washington' as a name for the Federal City. So technically there was both a city and district designation, and the city designation still exists as it was redefined in the 1871 Organic Act.

I think the reason people say "Washington, D.C." when referring to it in a list of states is that it sounds less weird than the unabbreviated "District of Columbia".

Would there be a strong argument for simply saying Columbia?

After all, context will mostly clear up which one you mean, and we tend to not say "State of Wisconsin" very often.

>Would there be a strong argument for simply saying Columbia?

Yes, that it would confuse most of your readers since DC is never referred to in that way, ever.

You would confuse a big chunk of the East Coast, where "Columbia" means a city in Maryland southwest of Baltimore. If you're looking for something totally unambiguous, you can say just "DC". If you're the New York Times and likewise, you could say "the District of Columbia", but apparently their style guide prefers otherwise.

Or just don't put in a comma.

That would be incorrect grammar, like saying "St. Louis Missouri" instead of "St. Louis, Missouri".

Also listed in the posted article (at the bottom).

Does this mean I can't buy sake through the mail now if i'm in one of those stupid 36 states?

Yes.

There's a mead producer I'm fond out in North Carolina and I haven't been able to get their bottles shipped to NY for some time. To get around that, I'd been shipping them to my mom's in South Carolina and we've been making exchanges whenever one of us visits the other.

That's not an option anymore and my only route will now have to be a 2 hour drive from her house whenever I visit there (since she's not going to be making that drive...).

It's not like there's great distribution of mead here, even though this is NYC. Consumers lose this round, I guess.

What I can do at least is form a relationship with a local store/distributor and have them place a prepaid, minimum case (likely minimum 6 case) order at a time, with whatever huge markup they decide to add for doing nothing more than being legally able to place the order.

I have an interesting NC/SC story - There's a discount wine/liquor store right across the state line from the Carowinds amusement park (in Charlotte). People from North Carolina were driving down and loading up (which is different from "getting loaded"...) their cars to save some money.

The NC Alcoholic Beverage Control Board took exception to this (loss of tax revenue, possible blue-law violations, etc.) and sent one of their officers down there. He sat in the parking lot and would radio the license plates of cars with North Carolina tags that he observed buying large quantities of booze on to a team of agents waiting on I-77. Who would then pull the buyers over and charge them with bootlegging.

The South Carolina Highway Patrol got wind of this and sent several officers to the parking lot to explain to the North Carolina revenuer the concept of jurisdiction, and how he was out of his.

The fact that interstate bootlegging is something that even exists blows my mind. Feels like the states are all part of the same system until you hit stuff like archaic blue laws, marijuana laws, abortion laws, auto insurance, and (recently) gay marriage.

Those are all important things, and it's pretty frustrating not to have the same rights in some states as I do in others. I'm surprised (but glad) there aren't state border crossing stops yet.

This is small stuff like getting wine and fireworks across state lines, I can't begin to imagine how someone who needs an abortion must feel about it.

> there aren't state border crossing stops yet

Actually, funny story, when I was driving from Seattle to California a few years back, we got stopped around the Oregon-California border for a checkpoint. They ask questions to make sure you aren't importing fruits or plant matter that might be carrying pests non-native to the area (think "emerald ash borer" if you aren't sure what they're looking for).

Anyways, I didn't realize what was happening for a moment, and thought it was a toll road. It was a very awkward moment when I tried to hand the guy some cash as he walked up to my window.

Awesome story...and I think I know the exact discount liquor store you're talking about, too...

So I just had a quick run to my favorite sake site, it looks like I can still order sake (I ordered a Junmai Ginjo). Interestingly North Dakota (random state that can ship wine) can't get sake shipped.

I wonder if sake qualifies as something else like beer. Its brewed the same way basically, so perhaps the laws are restricted to grape wines only?

My mead distributor hasn't updated their site to reflect the new enforcement either. I wouldn't chance it as they may run into problems once it's time to ship.

Or I'd stock up a ton now. As for me, I think I'm about to start producing my own mead anyway.

It sucks because getting good sake in the midwest is... hard at best.

Every place that has sake has no friggin clue how to even know if something is good. Stocking up like crazy will only work so long, and making sake isn't exactly something I'd try, even given how close it is to regular beer fermentation.

I ordered a single small bottle, so even if it gets held up its not as big of a deal, I hope. Time to go call my legislature and tell them to fix the bill or I vote for the other team again out of spite.

So the vineyard can truck its goods across state lines? seems bonkers to me

Only if a state allows for direct shipments from in-state wineries. The effect of Granholm was to forbid states from using the 21st Amendment to discriminate against out-of-state producers.

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