So that brings us to Justice O’Connor’s last major figure, Senator Wagner. She quotes him at length: Senator Wagner was an especially vigorous opponent of the proposed § 3. In his view, it failed to “correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems. It does not withdraw the Federal Government from the field of local police regulation into which it has trespassed.” Id., at 4144. In Senator Wagner’s view, the danger of § 3 was that even this limited grant of authority to the Federal Government would result in federal control of the liquor trade:
“If Congress may regulate the sale of intoxicating liquors where they are to be drunk on premises where sold, then we shall probably see Congress attempt to declare during what hours such premises may be open, where they shall be located, how they shall be operated, the sex and age of the purchasers, the price at which the beverages are to be sold….
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“It is entirely conceivable that in order to protect such a prohibition the courts might sustain the prohibition or regulation of all sales of beverages whether intended to be drunk on the premises or not. And if sales may be regulated, so may transportation and manufacture…. If that is to be the history of the proposed amendment–and there is every reason to expect it–then obviously we have expelled the system of national control through the front door of section 1 and readmitted it forthwith through the back door of section 3.” Id., at 4147.
At this point it is not clear whether I even need to elaborate on why this speech proves the opposite of what Justice O’Connor believes. The quote from Wagner quite clearly indicates that Congressman Wagener opposed §3 because it would have given Congress the power to meddle in local affairs and to thereby interfere with the state’s exercise of their police power, and indeed, there was the fear that Congress might use this power to reimpose prohibition on the states. In expressing his desire to restore to the states their control over these local affairs by deleting §3, there is nothing here to suggest that he thought that §2 gave to the states Congress’s power to regulate interstate commerce. It should be equally obvious that unlike O’Connor, Wagner did not consider this to be a “limited grant of authority,” but rather undermined the essential purpose of the 21st Amendment.
Wagner quite clearly believed that the purpose of the 21st Amendment was to restore the pre-18th Amendment constitutional and legal regime. Immediately before the above-quoted passage, Wagner states, “Mr. President, the pending joint resolution tendered to the Senate and the country is called a proposal to repeal the eighteenth amendment, and because artfully it employs the word `repeal’ in its first section, it pretends to fulfill the wish overwhelmingly expressed by the American people in the last election. But I submit that the pending resolution does not in fact repeal the inherently false philosophy of ht eighteenth amendment. It does not correct the central error of national prohibition. It does not restore to the States responsibility for their local liquor problems.” Cong. Rec. at 4144. As Wagner makes clear, the 21st Amendment did not embody the bizarre theory adopted by Justice O’Connor that the 21st Amendment restored the pre-Constitutional balance where the states controlled interstate commerce. Rather, Wagner plainly states that it was intended to restore to the states control over their LOCAL affairs governing liquor.
Wagner elaborates on this point even more plainly, “I have many times declared and I now repeat that the question which has troubled the American people since the eighteenth amendment was added to the Constitution was not at all concerned with liquor. It was a question of government: how to restore the constitutional balance of power and authority in our Federal system which had been upset by national prohibition. That equilibrium which prior to the eighteenth amendment was one of the functional marvels of our system of government is not restored by the pending resolution. On the contrary, it perpetuates the lack of balance, the absence of symmetry, the confusion and overlapping of Federal and local authority.” Id. at 4144. Elsewhere he elaborates on the problems that this concurrent authority inevitably would cause, in that the operation of the Supremacy Clause would inevitably mean that local regulation would be overridden by federal legislation. “The real cause of the failure of the eighteenth amendment was that it attempted to impose a single standard of conduct upon all the people of the United States without regard to local sentiment and local habits. Section 3 of the pending joint resolution proposes to condemn the new amendment to a similar fate of failure and futility.”
Now, I don’t know how Wagner could be any more clear in expressing his intent that that the purpose of the 21st Amendment was to restore the pre-18th Amendment constitutional balance. Recall also, that it was Wagner who clarified Blaine’s “in effect” language by making it clear that Webb-Kenyon did not give the states control over interstate commerce, but rather was an exercise of congressional power to allow states to enforce their legitimate police powers against interstate alcohol. Somehow, Justice O’Connor draws from this that Wagner’s criticism of §3 illustrates his belief that §2 gave the states plenary power. With respect to Lea and Blaine, O’Connor’s argument may be reasonable, but is wrong. With respect to Wagner’s statements, however, O’Connor’s interpretation cannot be taken seriously. This is pure sloppiness or a fundamental misunderstanding of what the framers of the 21st Amendment were trying to do. Regardless, read in context, it is clear that Wagner was arguing for a restoration of the pre-18th Amendment legal and constitutional regime.
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