I was surprised (and delighted) to see that the Washington Times today heavily discusses Wine Wars in a house editorial on the wine cases. They correctly summarize my argument:
But as Todd Zywicki, a George Mason Law School professor, points out in “Wine Wars: The 21st Amendment and Discriminatory Bans to Direct Shipment of Wine,” there are a few problems with this interpretation. First, Section 2 never mentions the dormant Commerce Clause. To believe that Section 2 only refers to the Commerce Clause is not only a distortion of the intent of Section 2, but goes against prior court interpretations of what Section 2 actually grants to the states. Mr. Zywicki refers to a 1964 ruling that said, “To conclude that the Twenty-first Amendment has somehow operated to ‘repeal’ the Commerce Clause wherever regulation of intoxicating liquors is concerned would … be an absurd oversimplification.” Further, the intent of the entire 21st Amendment was to return the country to the careful balance of state alcohol regulation it enjoyed before Prohibition. It was not meant to give the states protectionist powers over their alcohol industries, as it is now being used.
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