Tags: The | Case | Wine

The Case of Wine

Wednesday, 01 December 2004 12:00 AM

In this case, the issue is indeed very juicy.

Wine.

The right to import it from California if you happen to live in Michigan or New York.

In the era of the Internet, of wine tastings, of world markets, and buying and selling without any of the old barriers, if you try to have a case of California wine shipped to your home in New York, you'll be told that it's against the law. New Jersey, yes. New York, no. Paris, yes. Albany, no. It all depends on where you live.

On Tuesday of next week, the United States Supreme Court will hear arguments in a case of national significance challenging the laws that in roughly half the states prohibit out-of-state wineries from shipping wine directly to consumers.

Now, I don't happen to drink anymore, and Kathleen and I were never much for fine wines, but it comes as a surprise to a great many people on tours and online to find that you can get almost any product in the world shipped to you if you live in New York City except a case of wine from a small California winery.

Why? Legally, the states have always had broad authority to regulate alcohol under the 21st Amendment, which repealed prohibition. Since a state could clearly ban all imports of alcohol, along with local manufacture, and be "dry," early courts held that must mean that the Commerce Clause's prohibition on states' interfering with interstate commerce simply didn't apply when the subject was alcohol.

More recently, the court has dismissed the old language and held that the right to regulate alcohol doesn't give states the right to discriminate against interstate commerce.

Ensuring open markets was the very reason the federal system was created. The former colonies, otherwise jealous of their power, understood that each state would be tempted to try to regulate to protect local interests, inviting destructive trade wars.

My old boss, Justice John Paul Stevens, who is presiding over the court in Chief Justice Rehnquist's absence, has followed in the footsteps of his and Rehnquist's former boss, Justice Jackson, in writing eloquently of the importance of a single open market when the subject was milk, and the transparency of laws that masquerade as health and safety regulations but are little more than economic protectionism.

But Justice Stevens has also been among those who have read the words of the 21st Amendment most literally. He did so, however, in a context that did not involve the sort of blatant economic discrimination that goes to the core of the Commerce Clause. Moreover, on that point, he was in the dissent.

The irony, at the end of the day, is that the New York wineries can't ship their wines out of state, either. The founders were right. Many of the states, California included, have passed reciprocity laws: You don't let ours in, we won't let yours in. For that reason, the New York wineries last year supported a bill to change their law and allow direct shipment. It got through the legislature.

But guess who opposed it? The distributors. If you can't buy direct, you have to buy through them. That costs the consumer more. It also leaves the small wineries, who can't find distributors, with no market at all. But big distributors are big donors to the governor.

Just by coincidence, of course, he vetoed the bill, which is why the New York case is among those in the court.

COPYRIGHT 2004 CREATORS SYNDICATE, INC.

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In this case, the issue is indeed very juicy. Wine. The right to import it from California if you happen to live in Michigan or New York. In the era of the Internet, of wine tastings, of world markets, and buying and selling without any of the old barriers, if you try...
The,Case,Wine
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2004-00-01
Wednesday, 01 December 2004 12:00 AM
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