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Sunday, August 24, 2003

Robert Bork, Ken Starr and bottles of wine

Interesting New York Times article today on the fight over whether to allow unfettered interstate shipment and home delivery of wine, as opposed to the highly regulated system we have now. Some top conservative legal figures, including Ken Starr for the wineries and Robert Bork for the state regulators, have engaged in a public battle over this issue.

Essentially the debate boils down to whether the commerce clause somehow overrides the second section of the 21st Amendment (repealing prohibition), which reads: "The transportation or importation into any State, Territory or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited."

Starr makes two main arguments in the article:

"'This is naked protectionism,' he declared in the winery dining room, flipping through a pamphlet-sized copy of the Constitution that he says he carries everywhere he goes. 'If you allow wineries from western New York to ship to Manhattan or Rochester or Syracuse or wherever, you need to allow a winery in Connecticut or a winery in Napa to ship, too.'

"He also argues that the laws hurt consumers: 'People get very upset when they're told in a free society that they cannot engage in this commercial transaction.'"

I agree with Starr and the wine producers on second point (I agree with Ken Starr!); I believe you should be able to have wine delivered to your home if you want. I don't know if the protectionism charge is legitimate--he would have to back up the claim with some data and examples of states making tighter regulations to help their own wine producers.

C. Boyden Gray, White House counsel to Bush 41, is also on the Bork/states' rights side, and he makes what I believe is the correct legal argument:

"'To me, it's straightforward,' Mr. Gray said. 'Alcohol is unique in having its own amendment. The dormant commerce clause is not irrelevant, but it's trumped by this provision. The 21st Amendment gives the states the power to deal with this issue.'"

The 21st Amendment sets out liquor as a special area in which state laws are supreme regarding interstate commerce. It was ratified later and, based on my reading, appears to be an intentional exception to the commerce clause.

Thus to reach the sensible outcome Starr is advocating, I believe we need something that makes the second section of Amendment 21 somehow inoperative or irrelevant. Perhaps asking the states themselves to voluntarily get rid of their own silly regulations is too much to ask?