Justice O’Connor cites a litany of other Senators who she believes support her interpretation. Rather than beating a dead horse still further I will just offer a brief comment on each of these. “Still others emphasized the plenary power granted the States by § 2. Senator Walsh, a member of the Subcommittee that had held hearings on the Amendment, said: `The purpose of the provision in the resolution reported by the committee was to make the intoxicating liquor subject to the laws of the State once it passed the State line and before it gets into the hands of the consignee as well as thereafter.’ Id., at 4219.” Obviously, this specific mention of the “consignee as well as thereafter,” refers to the precise language used in the Supreme Court’s earlier commerce clause decisions in Rhodes, etc., so this is quite clearly narrowly targeted at that interpretation of the commerce clause and suggests nothing about giving the states power to enact discriminatory regulations.
She also adds comments by Senator Robinson, “In response to a question from Senator Swanson, Senator Robinson of Arkansas affirmed that `it is left entirely to the States to determine in what manner intoxicating liquors shall be sold or used and to what places such liquors may be transported.’ Id., at 4225. Thus, upon the motion of Senator Robinson, the Senate voted to strike § 3 from the proposed Amendment. Id., at 4179.” Again, the import of this is quite clear and quite the opposite of what Justice O’Connor believes it means. Under the 21st Amendment, as with Webb-Kenyon, under their police power the states had the authority define what constituted intoxicating liquors and how they were to be sold and transported within a state. The federal authority incorporated these state laws into the Webb-Kenyon Act for purposes of enforcement. Senator Robinson makes clear that his criticism is again that the problem with §3 is that it does not withdraw the federal government from local activities. “The issue here is whether the federal Government is going to take away from the States all power after repealing the eighteenth amendment, in the even the repeal shall be ratified.” Cong. Rec. 4226. He then goes on to discuss his desire to prevent the return of the saloon, but that proposed §3 was not the way to do it. There is nothing in this effort to withdraw the federal government from local affairs that implies that §2 was intended to allow the states to invade the federal government’s commerce power.
Speaking immediately after Senator Robinson, Senator Tydings elaborated on the point. After reciting the abysmal failure of federal prohibition he stated, “I say that we never should have taken this question [regulation of the saloon] from the States. It is not a national question. It is a local question, and it can be solved best in the communities that have to deal with it. This government never was conceived with the idea that we would reach out into every community and govern the habits and the morals and the religion of people in those communities. We were to deal with national questions only—the Army and the Navy, intestate and foreign commerce, post offices and post roads, and the rest of the 18 powers govern to us by the Constitution. We had no right at all except by turning our backs upon the philosophy of the Constitution, to go out in the States and assume this power and this control. The sooner we give it back to the States the sooner we shall establish law and order and decency and some respect for government.”
Senator Bingham immediately followed Senator Tydings. His remarks were focused on the fact that the framers of the original Constitution specifically considered and chose not give to the federal government a general police power authority to enact “sumptuary legislation, “which would deal with the habits of the people, with what they ate, drank, and wore,” but that they recognized that this moral regulation was properly a matter for the local communities. He then added, “In adopting the eighteenth amendment we interfered with the growth of temperance” by trying to impose a uniform national standard of morality on the country. Again, his remarks make no reference to giving the states new powers to regulate interstate commerce, but focus solely on the failure of national prohibition.
I will spare the reader further prolonged recitation of statements on this point. In an earlier post I went through the real legislative history of the 21st Amendment in some detail, but the discussion here is designed to show that even those few snippets that Justice O’Connor points to do not support her interpretation.
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