Guest Column: 100 Years After the Failure of Prohibition, the Supreme Court Has Opportunity to Prevent Another Federalization of Alcohol Policy

100 Years After the Failure of Prohibition, the Supreme Court Has Opportunity to Prevent Another Federalization of Alcohol Policy

On January 16, 2019 the United States Supreme Court will hear oral arguments in the case Tennessee Wine and Spirits Retailers Association v. Blair.   January 16^th is a critical date in alcohol policy history because on January 16, 1919, the United States ratified the 18^th Amendment to the United States Constitution. The oral argument will be exactly 100 years to the day after the ratification of the 18^th Amendment.

The failures of the 18^th Amendment were many and well documented, but the most obvious failure was the insistence of one national alcohol policy (prohibition of the manufacture, sale or transportation of alcohol) instead of 50 different state policy choices reflective of the attitudes of local communities.   As the authors of our nation’s seminal treatise on alcohol policy noted in in 1933 in Toward Liquor Control, “But it was a mistake to regard the United States as a single community in which a uniform policy of liquor control could be enforced. When the citizens of the Unites States wrote prohibition into the Federal constitution they forgot that this nation is not a social unit with uniform ideas and habits.”[1]

When the Supreme Court considers the Tennessee case it has an opportunity to step back and recall history.   All can agree that the 18^th Amendment was a failure. What “fixed” this failure was passage of the 21^st Amendment which repealed the 18^th Amendment AND gave the right to regulate alcohol to the states. The Supreme Court can give the widest support to this fix by honoring the text of the United States Constitution, specifically section two, and effectuate the intent of the nation in passing the 21^st Amendment.

On the 100^th Anniversary of the passage of an amendment that wrongly mandated a one-size-fits-all policy via federal constitutional amendment, is the Supreme Court going to reimpose a single, national view to be applied to all state laws via federal judicial fiat?   Does section 2 of the 21^st Amendment give states the authority to regulate alcohol or not?   In recent years, the Supreme Court has been tempted to disregard the core powers given to states on alcohol policy and to micromanage state legislative alcohol policy decisions.  The Court has been asked to ignore that state legislatures are closest to the community and know how much or little alcohol regulation a community desires. State legislatures and alcohol policy is constantly evolving as no honest person can say alcohol is sold the same today as it was 20, 50 or 80 years ago. That evolution is a direct result of section two of the 21^st Amendment with state legislative changes based on local desires.

Tennessee is a great example of the need for local control. Nashville is different than Jackson. 24 counties in Tennessee are “dry” with no alcohol sales. Many more jurisdictions are “moist” allowing some but not all alcohol sales. There is not consensus within Tennessee on alcohol policy. To have federal courts, substitute their one-size-fits all federal judicial thoughts for the judgement of state legislatures trying to reflect the desires of its citizens moves us back to the failed one-size-fits-all approach of the 18^th Amendment.

The Tennessee case before the Supreme Court discusses the issue of residency laws for alcohol retailing. Will the Court further wade into the “states can’t regulate here or do it this way” waters?   Or will they recognize the historical intent of this country when it passed the 21^st Amendment to give states a freer rein to regulate their state’s alcohol market place effectively?   Will it try to graft the standards for the other 99.9% of items in commerce and without a constitutional amendment onto alcohol or will they recognize, as Toward Liquor Control did in 1933, “With the repeal of the Eighteenth Amendment, therefore, we must assume that the single state becomes the largest community for the legislator to consider.   We have returned to the individual state the power to deal with the question.”

The debate about alcohol policy is often replete with micro specific concerns of various national business models being potentially impacted by state regulation.   The concerns of public health and government regulatory officials are not relevant to the critics of alcohol regulation, but these perspectives dominated and guided discussion for the need for the 21^st Amendment. These same critics of state regulation gloss over the paradox of the American alcohol industry being the strongest alcohol industry in the world because of its 50 different state markets.

The 18^th Amendment and the 21^st Amendment should remind the court that the solution to alcohol issues lies in the states. The opponents of state laws seek to use the court system to neutralize section two of the 21^st Amendment.   As the country recognizes 100 years since the ratification of the 18^th Amendment the Supreme Court should urge opponents of state alcohol regulation to band their forces and introduce an amendment to repeal section two of the 21^st Amendment if opponents want a one-size-fits-all policy. In the meantime, the court should defer to the state legislatures on alcohol matters as the Constitution currently provides.

The United States Supreme Court should avoid repeating the mistakes of 1919 and honor the state roles in regulating alcohol by giving the broadest reading to the 21st Amendment.

[1] Fosdick and Scott, Toward Liquor Control p. 6 (Center for Alcohol Policy republished 2011)

Submitted by Paul Pisano, Sr. VP and General Counsel, National Beer Wholesalers Association