Dormant Commerce Clause Trumps 21st Amendment

The Supremes handed down their decision in Granholm v. Heald yesterday. At issue were state schemes that allowed in-state, but not out-of-state, wineries to make direct sales to consumers. The States and an intervening in-state wholesalers association responded that the direct shipment ban was a valid exercise of the states' power under the Twenty-first Amendment. At base, the Court held that the Twenty-first Amendment does not supersede other provisions of the Constitution and, in particular, does not displace the rule that States may not give a discriminatory preference to their own producers.

To me, the text of the Twenty-first Amendment is pretty clear that the statutory schemes at issue in Granholm are properly left to the states: "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."

As Justice Thomas noted in dissent:

The Twenty-first Amendment and the Webb-Kenyon Act took those policy choices away from judges and returned them to the States. Whatever the wisdom of that choice, the Court does this Nation no service by ignoring the textual commands of the Constitution and Acts of Congress. The Twenty-first Amendment and the Webb-Kenyon Act displaced the negative Commerce Clause as applied to regulation of liquor imports into a State. They require sustaining the constitutionality of Michigan's and New York's direct-shipment laws.

Justice Stevens also made very good points about original intent and the Twenty- First Amendment:

Indeed, 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. Because the New York and Michigan laws regulate the transportation or importation of intoxicating liquors for delivery or use therein, they are exempt from dormant Commerce Clause scrutiny.

I've only been through the opinion once, but at this point I believe that Thomas and Stevens make the better argument.