The enactment of the Webb-Kenyon Act is consistent with the history that came before it in reconciling the state¡¦s police power over local affairs with the federal government¡¦s power over interstate commerce. As noted in Part 5, under the traditional balance of power, the states had essentially plenary power to regulate the manufacture and consumption of alcohol pursuant to its police power (including imposing state-wide prohibition), but did not have the power to discriminate against interstate commerce (Walling v. Michigan). But under the prevailing interstate commerce clause jurisprudence of the 19th century, states could prohibit internal manufacture and sale of alcohol, but could not prohibit its importation and resale in its ¡§original package.¡¨ This effected a perverse discrimination in favor of interstate commerce. As noted in Part 6, the Wilson Act attempted to correct this problem by providing that alcohol imported into the state for sale would be treated the same as local liquor. Moreover, the Supreme Court held in Scott v. Donald that the Wilson Act did not authorize states to discriminate against out-of-state sellers of alcohol. But the Wilson Act also left a loophole, in that it did not allow dry states to prohibit the importation of alcohol for personal use.
The Webb-Kenyon Act was passed in 1913 to enable the states to close this remaining loophole that essentially discriminated in favor of out-of-state sellers of alcohol and undermined the states¡¦ ability to enforce their laws in dry states. Webb-Kenyon prohibited, as a matter of federal law, ¡§[t]he shipment or transportation¡¨ of alcohol into a State of intoxicating liquor that ¡§is intended, by any person interested therein, to be received, possessed, sold, or in any manner used, either in the original package or otherwise, in violation of any law of such State.¡¨ Webb-Kenyon, therefore, was an enforcement law, not a substantive law¡Xthe substance of Webb-Kenyon was grounded in state laws enacted pursuant to their police power. Thus, state laws first had to be a valid substantive exercise of the state¡¦s police power before it was incorporated into Webb-Kenyon and could be applied to interstate shipments of liquor. Thus, there was no indication that Webb-Kenyon was intended to modify the traditional limits on the state police power that forbade states from using the police power to discriminate against interstate commerce. Instead, the initial law that the state sought to enforce against interstate commerce must itself be an externally valid exercise of the state¡¦s police power. McCormick v. Brown, 286 US 131 (1932).
As Senator Kenyon himself stated about the Act, its purpose was to enable the states to better effectuate their police powers by eliminating the discrimination in favor of out-of-state sellers. He said: ¡§This bill, if enacted would not be a law to bring about prohibition. It would not be a law to stop personal use of intoxicating liquors ,,m Its purpose, and its only purpose, is to remove the impediment existing as to the States in the exercise of their police powers regarding the traffic or control of intoxicating liquors within their own borders.¡¨ 49 Cong. Rec. 760.
Kenyon also stated, “Every State in which the trqaffic liquors has been prohibited by law is deluged with whisky sent in by people form other States under the shelter of the interestate-commerce law. There are daily trainloas of liquors in bottles, jugs, and other packages sent into the State consigned to persons, real and fictitious, and every railway station and every express company office in the State are converted into the most extensive and active whisky shops, from which whisky is openly distributed in great quantities. Liquor dealers in other States secure the names of all persons in a community, and through the mails flood them with advertisements of whisky, with the most liberal and attractive propositions for the sale and shipment of the same…. It is eveident that under such circumstances the prohibition law of a State is practically nillified, and intoxicating liquors are imposed upon its people against the will of the majority.” 49 Cong. Rec. 761 (1912) (Statement of Sen. Kenyon).
Other supporters of the Act echoed Senator Kenyon¡¦s views. Senator Sanders, for instance, indicated that the Act was designed to avoid the Court¡¦s precedents holding that a ¡§State [could] regulate the quality of liquor sold within the State, but it [could] not regulate the quality of liquor sold from outside the State.¡¨ The only effect he added, was that ¡§It only stops the business of selling liquor within dry territory by persons outside that territory in violation of law.¡¨
Webb-Kenyon, therefore, was intended to be a shield to protect dry states from being forced to receive imports in violation of its state laws, not to be a sword for wet states to engage in economic warfare against the products of other states.
The Supreme Court also recognized that Webb-Kenyon was merely an effort to extend the Wilson Act to reach this remaining hole in the states¡¦ enforcement power. As the Supreme Court noted in upholding the constitutionality of Webb-Kenyon, ¡§Reading the Webb-Kenyon Law in the light thus thrown upon it by the Wilson Act and the decisions of this court … there is no room for doubt that it was enacted simply to extend that which was done by the Wilson Act.¡¨ Clark Distilling Co. v. W. Maryland Ry. Co., 242 U.S. 311, 323-24 (1917). In particular, the court held, the purpose of the Webb-Kenyon Act was ¡§to prevent the immunity characteristic of interstate commerce from being used to permit the receipt of liquor through such commerce in states contrary to their laws, and thus in effect afford a means by subterfuge and indirection to set such laws at naught.¡¨ Clark Distilling Co., 242 U.S. at 323-324. In contrast, nothing in the legislative history or elsewhere suggests that Congress intended to modify or repeal the non-discrimination principle of the Wilson Act recognized in Donald, which is particularly noteworthy in that the Court had decided Donald more than a decade beforehand.
In fact, contemporaneous court decisions applying Webb-Kenyon expressly held that the nondiscrimination principle of the Wilson Act was preserved in Webb-Kenyon. Interpreting Webb-Kenyon in 1916, for instance, the South Carolina Supreme Court held: ¡§The act of Congress of March 1, 1913, known as the Webb Kenyon Act, * * * does divest intoxicating liquors shipped into a state in violation of its laws of their interstate character and withdraw from them the protection of interstate commerce, [but] it evidently contemplated the violation of only valid state laws. It was not intended to confer and did not confer upon any state the power to make injurious discriminations against the products of other states which are recognized as subjects of lawful commerce by the law of the state making such discriminations, nor the power to make unjust discriminations between its own citizens.¡¨ Brennen v. Southern Express Co., 106 S.C. 102, 90 S.E. 402, 404 (1916).
Indeed, it was well-understood for decades (based on cases such as Brennen and other similar cases of the era) that Webb-Kenyon did not permit discrimination against interstate commerce. See Note, 85 U. Pa. L. Rev. 322 (1946-1937) (¡§The aim of the legislation, culminating in the Webb-Kenyon Act, which preceded the Twenty-First Amendment was to prevent the exclusive power of Congress over interstate commerce from rendering nugatory state police regulation of the liquor traffic.¡¨); Rogers, Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va L. Rev. 174 (1916); Howard S. Friedman, 21 Cornell L.Q. 504 (1935-1936) (¡§The cases under the Webb-Kenyon Act uphold state prohibition and regulation in the exercise of the police power yet they clearly forbid laws which discriminate arbitrarily and unreasonably against liquor produced outside of the state.¡¨) Note, 55 Yale L.J. 817 (1945-1946) (noting that under the Act ¡§it was successively reiterated that only uses specifically forbidden by state law were prohibited, that interference with interstate commerce was permissible only in the exercise of valid state police power, and that discriminatory state statutes did not represent proper exercises of such power.¡¨). Brennen and similar cases simply evidenced the prevailing consensus that Webb-Kenyon did not create a new power for states to discriminate against interstate commerce.
Following Prohibition and its repeal, there was some concern that the enactment of the National Prohibition Act (which had implemented the 18th Amendment) had implicitly repealed Webb-Kenyon. In particular, it was thought that the National Prohibition Act may have eliminated the states¡¦ authority to define the term ¡§liquor¡¨ pursuant to their state police power. Indeed, this challenge was raised expressly in McCormick v. Brown. In order to quiet this objection, in 1935 Congress reenacted Webb-Kenyon. As one commentator observed in 1938, ¡§Most congressmen seem to have believed that the Webb-Kenyon Act was still in effect, but to make certain, it was reenacted in 1935.¡¨ 7 Geo. Wash. L. Rev. 406 (1938-1939).
This is where things stood at the time of the enactment of national prohibition by the 18th Amendment.
In reviewing the legislative history of the 21st Amendment in connection with preparing more recent posts, I noticed the following colloquy that nicely demonstrates that the purpose of Webb-Kenyon expressly was not to delegate Congress’s interstate commerce power to the states. Cong. Rec. p. 4140 (Feb. 15, 1933):
SEN. BLAINE: “Then came an amendment ot hte Wilson Act known as the Webb-Kenyon Act…. The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actally entered the confines of the State….”
SEN. WAGNER: “Mr. President, will the Senator yield?”
SEN. BLAINE: “I see my able friend from New York shaking his head. I yield to him.”
SEN. WAGNER: “I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce.”
SEN. BLAINE: “I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same–that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress.”