As noted in Wine Wars, Part 2, nothing in the text of the 21st Amendment specifically repeals the dormant Commerce Clause, nor does it specifically repeal only the dormant Commerce Clause and no other provision of the Constitution. Nonetheless, some conservatives have argued that the dormant Commerce Clause is not “in” the Constitution but is rather a figment of the judicial imagination made up by the Supreme Court. So as a result, all the 21st Amendment supposedly does is make this judicial gloss inapplicable in the context of the 21st Amendment. This view is hinted at in the opening line of Judge Easterbrook’s opinion in Bridenbaugh v. Freeman-Wilson, “This case pits the twenty-first amendment, which appears in the Constitution, against the `dormant commerce clause,’ which does not.”

Moreover, I have heard many conservatives insist that Justices Scalia and Thomas do not believe in the dormant commerce clause, so that all the 21st Amendment supposedly does is repeal this illegitimate judicial usurpation of state authority. This view is incorrect on many grounds. First, it proves too much, in that it would repeal any supposedly nontextual right or power, regardless of its history or foundation in the structure of the Constitution. Second, it conflates two different prongs of the dormant Commerce Clause, the well-established nondiscrimination principle and more controversial balancing test of Pike v. Bruce Church.

First, a primary purpose of the Constitution was prohibit the states from engaging in the type of protectionism and economic warfare the prevailed under the Articles of Confederation. “If there was any one object riding over every other in the adoption of the constitution, it was to keep the commercial intercourse among the States free from all invidious and partial restraints.” Gibbons v. Ogden, 22 U.S. 1 (1824) (Johnson, J., concurring). Indeed, concerns about state protectionism “the immediate cause, that led to the forming of a [constitutional] convention.” Gibbons, 22 U.S. at 224. Madison himself justified the grant of Commerce Clause authority to the federal government as, “[growing] out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves.”

Moreover, it is not sufficient to simply argue that ambiguous textual commands (such as section 2 of the 21st Amendment) should trump constitutional constructions just because they are nontextual. If this were so, then it would mean, for instance, that the 21st Amendment would repeal the incorporation doctrine, or the so-called “reverse incorporation” doctrine of Bolling v. Sharpe. Indeed, this would mean that the 21st Amendment would also repeal cases such as McCullough v. Maryland in the context of alcohol. Indeed, this rationale would render the unwritten doctrine of Marbury v. Madison itself invalid in cases involving the 21st Amendment. There is no indication that the framers of the 21st Amendment intended these absurd result, and it would be contrary to all accepted principles of constitutional interpretation to infer such absurd results absent some congressional indication to the contrary. In fact, as Justice Brennan observed in North Dakota,the Court has “never held” that regulations affecting the importation and transportation of alcohol “are insulated from review under the federal immunity doctrine [as established in McCullough] or any other constitutional ground, including the dormant Commerce Clause.”

Second, the hostility of some conservatives to the dormant Commerce Clause is based on a confusion between two different prongs of the dormant Commerce Clause, the nondiscrimination principle on one hand, and the balancing test of Pike v. Bruce Church on the other. Under Pike, the Court weighs the benefits of the state regulation against the costs it imposes on interstate commerce. Scalia has properly criticized this doctrine as lacking intellectual coherence and of turning the court into a super-legislature weighing the policy wisdom of state enactments.

Although Justice Scalia has consistently criticized the Pike balancing test, he has consistently recognized the nondiscrimination principle. Writing the opinion for the Court in New Energy v. Limbach, for instance, he wrote, , “It has long been accepted that the Commerce Clause … directly limits the power of the States to discriminate against interstate commerce. This `negative’ aspect of the Commerce Clause prohibits economic protectionism – that is, regulatory measures designed to benefit in-state economic interests by burdening out-of-state competitors.” New Energy Co. v. Limbach, 486 U.S. 269, 273 (1988).

More precisely, Scalia concurred in Healy, noting that even though the price scheme there dealt with alcoholic beverages, the 21st Amendment did not save it, “since its discriminatory character eliminates the immunity afforded by the Twenty-first Amendment.”

Justice Thomas has also questioned the textual foundation of the dormant Commerce Clause, but he has not questioned the constitutional foundation of the nondiscrimination principle. In Camps Newfound, for instance, he trashes the dormant Commerce Clause, but makes clear that he would still apply the dormant Commerce Clause, just doing so under the Import-Export Clause, which he would apply to interstate commerce as well foreign trade. Thus, he says, “our rule that state taxes that discriminate against interstate commerce are virtually per se invalid under the negative Commerce Clause may well approximate the apparent prohibition of the Import-Export Clause itself.” 520 U.S. at 636.

Thus, although Scalia and Thomas would both abandon the balancing test of Pike, it is clear that they both believe that the ban on protectionism is well-grounded in the Constitution, although Thomas would anchor it in the Import-Export Clause instead of the dormant Commerce Clause. (As an aside, Cass Sunstein offers an interesting and persuasive defense of the Pike test, rooted in the nondiscrimination principle. Sunstein argues that where the burden on interstate commerce of a regulation manifestly outweigh the benefits, this supports an inference that the real intent of the law is protectionism and thus unconstitutional. Cass R. Sunstein, Naked Preferences and the Constitution, 84 Colum. L. Rev. 1689, 1689-92 (1984)).

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