Given the primacy of Webb-Kenyon to the understanding of the 21st Amendment, I thought it might be useful to post some additional excerpts from the legislative history of Webb-kenyon to illustrate the point that the purpose of that Act was to enable the states to enforce their police powers against interstate liquor, not to given them a new power to engage in protectionism:
Senate Judiciary Sub-Committee
Senator Nelson:
* “The police power of the State does not extend to all of these subjects [such as clothing and wheat]. It is only those that are considered detrimental to health and morals. There the police power of the State is complete; but the police power of the State would not extend to prevent the sale of flour or any wholesome commodity …. In the Mugler case … they passed upon the question of whether this commodity was within the police power of the State, and the question back of it all is the question that has not been discussed according to my mind, and that is this question: The Supreme Court has held that the State has complete police power over the sale and manufacture of liquor …. Now, if the people of Oklahoma have no right to engage in the manufacture and sale of intoxicating liquors in your State, why should I, as a citizen of Minnesota, have a greater right in your State than your own citizens?”
Hon. Fred S. Caldwell (the speaker before the Sub-Committee):
* “[T]ake the Mugler case. There the Supreme Court of the United States held this: That Mugler had no right as a citizen of the United States to maintain and operate his brewery in the State of Kansas in violation of the laws of the State of Kansas, even though he intended the product for his own personal use and interstate commerce to points outside of the State. That, I think, is what was held in that case. Now, then, in my judgment, they could not say that that would be the law if Mugler has been operating a gristmill. If the State of Kansas had passed a law providing that all gristmills, even though operated in a way that could not offend on any ground of public policy … in my judgment the Kansas law would have been clearly unconstitutional and void …. And in that sense I say that whisky stands on a different basis from flour.”
* “[In the lottery case, Champion v. Ames 188 U.S. 321 (1903), the Court said:] `As a State may, for the purposes of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Congress, for the purpose of guarding the people of the United States against the widespread pestilence of lotteries and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another….’ The Court says there that Congress has the right to regulate interstate commerce so as not to defeat the police powers of the State.”
* “Remember that the police power of the State is inferior to the power of Congress over interstate commerce. At any rate, if it is not inferior, where the two come in conflict the commerce power of the Constitution is supreme. So that if the State can in the exercise of its police powers prohibit a certain use of a thing or prohibit the sale of a thing, or prohibit its manufacture, what is there in the Constitution of the United States to prohibit Congress from saying that there shall be no interstate commerce in things so intended for use in violation of the laws of the States. I see no reason. But I think you would have to discriminate between flour and whisky. I do not think you could put them on the same basis. I think the Supreme Court would hold this, that as to whisky, as Senator Rayner has suggested, it might be absolutely taken out of interstate commerce, but flour could not be.”
Senate Floor:
Senator McCumber:
* “Having power to prohibit interstate commerce in intoxicating liquors [Congress] has the lesser power, which must be included in the greater, of allowing interstate commerce in intoxicating liquors under certain conditions, and those conditions may be that the commodities shall be subjected to the police powers of a State the moment they cross the State line; not that the State law shall be the effective law and be approved by Congress, but Congress shall relinquish its hold upon the articles upon certain conditions when they arrive within a State.” [Which seems to be why the Act is entitled: An Act divesting intoxicating liquors of their interstate character in certain cases – the certain cases language seems to refer to those cases when the state police power operates]
* “Has Congress the right to prohibit intoxicating liquors from entering into interstate commerce? If it has no such power, then I am willing to concede that it has no power to subject that liquor to the condition sought in the bill. If intoxicating liquors as a commodity have inherently all of the rights that clothing or bread could have, then we may well doubt the constitutionality of this law.”
Senator Borah:
* “That having a right to prohibit interstate commerce in intoxicating liquors it has the lesser right, which is included in the greater, of declaring a condition for the allowance of the article to enter into interstate commerce that it shall be divested of its Federal protection as a commodity in interstate commerce whenever conditions arise, and that the condition which will so divest it may be that it is intended to be used in violaton of the police powers of the State.”
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