Over the past few weeks (see August archives) I have explained why it thus seems clear to me that the Wilson Act, then the Webb-Kenyon Act, then the 21st Amendment, and still more recently the 21st Amendment enforcement act all manifest the same purpose—the enable the states to better enforce their long-standing police powers regarding the regulation of alcohol by allowing them to apply their police powers to alcohol shipped in interstate commerce the same as alcohol produced within the state. As a piece of history, this is a powerful narrative, that makes sense within the context in which these legislative enactments arose. By contrast, there is nothing in this historical narrative to suggest that the states would have needed plenary power over interstate commerce in alcohol or that Congress would have had any good reason to cede its interstate commerce power to the states. There is no indication that Congress intended to remove the traditional limitation—in place since at least Walling v. Michigan in the 19th Century—that the state police power to regulate or even ban alcohol does not enable the states to erect protectionist barriers to interstate commerce.
Nonetheless, Justice O’Connor claims that the legislative history of the 21st Amendment does exactly that. In her dissenting opinion in 324 Liquor Corp. v. Duffy, 479 U.S. 335 (1987), she concludes that the 21st Amendment was intended to give the states plenary power over alcohol, a position to which she has tenaciously clung notwithstanding repeated Supreme Court rulings to the contrary. Chief Justice Rehnquist also signed onto her dissenting opinion. Put bluntly, Justice O’Connor’s use of legislative history in 324 Liquor is a “how-to” lesson in the misuse of legislative history—exactly the sort of sloppy cherry-picking that discredits the use of legislative history generally. A good use of legislative history would look at particular statements within the general historical context of the time, the legislative context in which the statements arose (i.e., what problem were they trying to solve), and finally and most elementary, the particular sentences should be read within the context of the actual speech that was being given, as isolated sentences are obviously given context by the surrounding sentences and paragraphs. Instead, in 324 Liquor, Justice O’Connor takes a few isolated snippets out some floor speeches on the 21st Amendment and strips them of both their historical and speaking context, ignores qualifications attached to them, and then concludes that these bits manifest the will of Congress at the time. In this Part of Wine Wars I will go through each of the statements on which she relies and show why they do not support the inference that Justice O’Connor wants to draw from them—indeed, in some cases, it will be seen that they actually demonstrate the opposite from what she wants to say they do. This will take several entries, so I will try to break these down into bite-sized arguments.
First, one thing that is interesting about O’Connor’s dalliance into legislative history in 324 Liquor is that I had a research assistant go back and look at all the briefs that were filed in that case, and it appears that none of the legislative history arguments that O’Connor makes were actually briefed in that case. This doesn’t mean that she is right or wrong, of course, but it does mean that the issue does not appear to have been fully briefed before her, including pointing on the problems with her reliance on legislative history that I will describe below. So the issue should be ripe for de novo consideration by the Supreme Court.
What is ironic, of course, is that Justice O’Connor begins her dissent by criticizing the court for its failure to fully consider the legislative history of the 21st Amendment in its cases on the topic. She writes, “Because the Court has seen fit in recent years to dismiss this legislative history without analysis as “obscure,” Bacchus Imports, Ltd. v. Dias, 468 U.S. 263, 274, 104 S.Ct. 3049, 3057, 82 L.Ed.2d 200 (1984); ante, at 727, n. 10, a fresh examination of the origins of the Twenty-first Amendment is in order and long overdue.” I agree that a fresh examination of the origins of the 21st Amendment is long overdue as well—I’m just not sure that Justice O’Connor will like where it leads.
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