During the Nineteenth Century it was recognized that the states could exercise their police power to regulate alcoholic beverages within their borders and to prohibit the in-state manufacture and sale of alcohol. License Cases, 46 U.S. (5 How.) 504 (1847); Mugler v. Kansas, 123 U.S. 623 (1887). In the License Cases, Chief Justice Taney wrote, “If any state deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to produce idleness, vice, or debauchery, I see nothing in the constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper.” Several similar cases followed over the next 40 years, such that the Court in Mugler wrote, “These cases rest upon the acknowledged right of the states of the Union to control their purely internal affairs, and, in so doing, to protect the health, morals, and safety of their people by regulations that do not interfere with the execution of the powers of the general government, or violate rights secured by the constitution of the United States.” Mugler dealt with the peculiar situation of whether the state could ban the manufacture of alcohol for purely personal use, as opposed to manufacture for sale or commerce. The court said that this was a valid exercise of the state’s police power: “But by whom, or by what authority, is it to be determined whether the manufacture of particular articles of drink, either for general use or for the personal use of the maker, will injuriously affect the public? Power to determine such questions, so as to bind all, must exist somewhere; else society will be at the mercy of the few, who, regarding only their own appetites or passions, may be willing to imperil the peace and security of the many, provided only they are permitted to do as they please. Under our system that power is lodged with the legislative branch of the government. It belongs to that department to exert what are known as the police powers of the state, and to determine, primarily, what measures are appropriate or needful for the protection of the public morals, the public health, or the public safety.” (I will leave for another day as to what implications Lawrence v. Texas may have for this view of the police power.)
States could not, however, exercise their police power in a discriminatory manner. As the Supreme Court wrote in Walling v. Michigan, 116 U.S. 446, 460 (1886):
“The single question, therefore, is whether the statute of 1875 is repugnant to the constitution of the United States. Taken by itself, and without having reference to the act of 1881, it is very difficult to find a plausible reason for holding that it is not repugnant to the constitution. It certainly does impose a tax or duty on persons who, not having their principal place of business within the state, engage in the business of selling, or of soliciting the sale of, certain described liquors, to be shipped into the state. If this is not a discriminating tax leveled against persons for selling goods brought into the state from other states or countries, it is difficult to conceive of a tax that would be discriminating. It is clearly within the decision of Welton v. Missouri, 91 U. S. 275, where we held a law of the state of Missouri to be void which laid a peddler’s license tax upon persons going from place to place to sell patent and other medicines, goods, wares, or merchandise, not the growth, product, or manufacture of that state, and which did not lay a like tax upon the sale of similar articles, the growth, product, or manufacture of Missouri. The same principle is announced in Hinson v. Lott, 8 Wall. 148: Ward v. Maryland, 12 Wall. 418; Guy v. Baltimore, 100 U. S. 438; County of Mobile v. Kimball, 102 U. S. 691, 697; Webber v. Virginia, 103 U. S. 344.
“A discriminating tax imposed by a state, operating to the disadvantage of the products of other states when introduced into the first-mentioned state, is, in effect, a regulation in restraint of commerce among the states, and as such is a usurpation of the power conferred by the constitution upon the congress of the United States. **** We have also repeatedly held that so long as congress does not pass any law to regulate commerce among the several states, it thereby indicates its will that such commerce shall be free and untrammeled, and that any regulation of the subject by the states, except in matters of local concern only, is repugnant to such freedom.”
Thus, the states could under the police power regulate the local manufacture and sale of alcohol, but could not use this power to discriminate in favor of in-state products.
But the Commerce Clause jurisprudence of the time also prevented the states from prohibiting shipments from outside the state that were resold within the state in their original package. See Bowman v. Chicago & Northwestern Ry., 125 U.S. 465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890). This created an anomaly, in that states could forbid domestic production of alcoholic beverages but could not stop imports; the Constitution effectively favored out-of-state sellers.” Bridenbaugh, 227 F.3d at 852.
At this time, therefore, the proposition was well-established that it was a valid use of states’ police power to enact prohibition within the state, or to allow for the “local option” for counties or towns to become dry. But, the states’ exercise of their police power did not extend to erecting discriminatory bans against interstate commerce. But this created a conflict between the states police power and judicial interpretations of the Commerce Clause that effectively discriminated in favor of out-of-state suppliers.
The next several posts review the legislative efforts to respond to this anomaly, culminating in the ratification of the 21st Amendment. Throughout this entire process it will be seen that the consistent purpose of these enactments was to allow states to better effectuate their police power by eliminating the peculiar discrimination in favor of out-of-state alcohol, not to provide states with new tools to engage in economic warfare against their neighbors.
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