Old Whine in a New Battle: Pragmatic Approaches to Balancing the Twenty-First Amendment, the Dormant Commerce Clause, and the Direct Shipping of Wine

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INTRODUCTION

There are only two ways an ordinary citizen acting in a private capacity can violate the United States Constitution. One is to enslave someone, violating the Thirteenth Amendment, and the other is to bring a bottle of wine into a state in violation of its alcoholic beverage control laws. (1)

In reaction to what many consider to be senseless and out-of-date prohibitions against the direct shipment of wine from out-of-state wineries to consumers, (2) wine connoisseurs and their legal advocates have mounted a campaign across the country to overturn direct-shipment laws. (3) According to Tracy Genesen, Legal Director for the Coalition for Free Trade ("CFT"), a winery backed advocacy group, the overall strategy is to "target the states with the most punitive direct-shipping statutes, to get a definitive decision from the Supreme Court to clear up the question of whether the Commerce Clause takes precedence over the Twenty-first Amendment or vice versa." (4) The CFT's strategy is to facilitate a split between at least two circuit courts that will have to be resolved in the nation's highest court. (5) Whether the strategy succeeds in getting the Supreme Court's attention remains to be seen, but one element appears to be working: lawsuits seeking to overturn direct-shipment statutes are generating conflicting opinions in federal district courts across the country and in at least two federal appellate courts. (6)

Although not a party to the lawsuit, the CFT probably joined the celebration on December 10, 2002, when Judge Richard M. Berman of the United States District Court for the Southern District of New York ordered New York State to allow wineries from the rest of the country to ship wine directly to New York consumers. (7) Judge Berman's order followed up on his opinion earlier that year holding New York's direct-shipping laws unconstitutional. (8) Clint Bolick, the attorney for the plaintiffs, called Judge Berman's initial ruling "the crest of a tidal wave that is washing away protectionist barriers to the direct shipment of wine." (9) Marc Violette, a spokesman for New York State Attorney General, Eliot Spitzer, said simply: "We are going to appeal." (10)

If New York does appeal, it will have significant ammunition--despite the trend in recent cases where direct-shipment wine advocates appear to be prevailing. For example, the Seventh Circuit Court of Appeals recently upheld an Indiana statute with similar prohibitions against out-of-state shipments. (11) Nevertheless, New York will face a difficult legal battle. On April 8, 2003, the Fourth Circuit Court of Appeals handed down its decision, affirming a federal district court decision last year declaring North Carolina's direct-shipment laws unconstitutional. (12) With this clear circuit split, the CFT may well be getting its wish; ultimately, the Supreme Court may have to settle the issue once and for all. The nation's highest court, however, appears willing to let the conflict age a bit longer. (13)

This Note examines the tension between the Twenty-First Amendment to the United States Constitution and the Dormant Commerce Clause, with respect to state regulations governing of out-of-state direct shipment of wine to consumers. When Judge Melinda Harmon, sitting in the Federal District Court, Southern District Texas, considered this issue in a recent case she noted that, "The question of the constitutionality of state bans on direct importation of wine by in-state consumers from out-of-state wineries has become increasingly controversial, yet thus far there is minimal case law dealing with the question." (14) One side of the debate is emobidied in Section Two of the Twenty-First Amendment, which provides: "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." The weight of this provision stems from early Supreme Court cases that gave states wide latitude in exercising this power. …