Justice O’Connor’s error here is quite profound. It is clear that she has simply failed to grasp the context within which the 21st Amendment was enacted. She has completely ignored that the 21st Amendment was enacted to effectuate the repeal of the 18th Amendment. The problem the 21st Amendment sought to address, therefore, was that the 18th Amendment unwisely gave to the federal government the power to regulate wholly local affairs regarding alcohol in order to impose national prohibition. Thus, it meant to restore to the states the power to exercise their police power over local affairs, and restored the Wilson Act and Webb-Kenyon in order to allow the states to apply their police power to imported alcohol as well.
Justice O’Connor, by contrast, reads all of these statements in isolation from this historical context. She seems to believe that the problem that the framers of the 21st Amendment sought to correct was the states’ lack of power over interstate commerce, rather than the federal government’s overreaching power to regulate local affairs. This simply is not correct. Moreover, it is completely illogical—giving the states a new power over interstate commerce would have done nothing to correct the real problem, which was the federal government’s power under the 18th Amendment over local affairs. Thus, under her interpretation, if the purpose of §2 was to give the states plenary power over interstate commerce, that remedy of giving the states power over interstate commerce is not even aimed at the problem of federal overreaching into local affairs.
Moreover, as illustrated by Wagner’s remarks, there was a consensus that the interstate commerce problem of discrimination in favor of interstate liquor had been solved by the Wilson and Webb-Kenyon Acts. Thus, there simply was no reason to give the states a new power to regulate interstate commerce, because the Wilson and Webb-Kenyon Acts were constitutionalized by §2. Similarly, the imposition of Prohibition by the 18th Amendment had nothing to do with issues involving interstate commerce, but rather to impose federal regulation of local liquor sales—i.e., saloons. In turn, this is why the proponents of §3 favored its inclusion, so as to prevent the reestablishment of the saloon, and why Wagner and others opposed it, because it would retain the federal intervention into local liquor regulation.
In other words, because Justice O’Connor has failed to understand the historical context in which the 21st Amendment was enacted, she has essentially turned the entire debate backwards and upside down. The debates are about WITHDRAWING the federal government from the regulation of local liquor affairs, NOT about giving the states new power to regulate interstate commerce. To put it another way, the purpose of the 21st Amendment was to END the federal invasion of local liquor regulation, rather than to BEGIN state invasion of the federal interstate commerce power.
Justice O’Connor is really profoundly confused about the purpose of the 21st Amendment. In many ways, her misuse of legislative history here is a useful cautionary tale of the problems with trying to do legislative history when one is not willing to actually try to understand the context in which the relevant words are spoken. In this case, her sloppy use of legislative history has colored almost two decades of Supreme Court jurisprudence and academic thinking on the intent of the 21st Amendment. It is efforts like hers that provide ammunition to those who would reject legislative history in all contexts.
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