I don't understand. How is this not a straightforward violation of the Interstate Commerce Clause?
[The Congress shall have Power] To
regulate Commerce with foreign Nations,
and among the several States, and with
the Indian Tribes;
But yes, the reason the regulation is different for alcohol than for other goods is ostensibly the 21st.
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.
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.
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.
Otherwise, yeah, the Articles of Confederation weren't working.
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."
(It, along with “necessary and proper”, have been used to justify just about every activity the federal government has done.)
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.
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.
>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?
Justice Thomas and the late Justice Scalia, and others before them, shared your view.
I'm thinking of Smokey and The Bandit, of course.