Author Archive | Todd Zywicki

An alternative argument that has been offered is that even if the 21st Amendment does not transfer Congress’s commerce clause authority to the states, Congress essentially reconveyed its commerce clause power to the states legislatively through the Webb-Kenyon Act. Thus, the dormant Commerce Clause is said to be irrelevant to this case, because protectionist state […]

The contemporaneous debates in Congress over the proposed but never enacted §3 of the 21st Amendment further indicate that the purpose of §2 was to restore the constitutional balance disrupted by the 18th Amendment by returning local police power authority to the states, but not to grant to the states new powers to interfere with […]

At last, we get to the 21st Amendment. Section 1 simply repeals the 18th Amendment (“Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed.”). Section 2 of the 21st Amendment provides, “Section 2. The transportation or importation into any State, Territory, or possession of the United States […]

Ok, if you haven’t seen it yet, Family Guy is one of the funniest shows of all time and it is coming back to Fox this fall. FG is not for those who are easily offended and, do not–repeat, DO NOT–watch the Family Guy if you have PC sensibilities. Anyway I just learned of a […]

In the era before the 18th Amendment, the state and federal governments had thus reached a general accommodation on the balance of authority between the state police power and national commerce power. The states had the authority to regulate purely local affairs, such as rules governing the manufacture and consumption of alcohol, especially with respect […]

Given the primacy of Webb-Kenyon to the understanding of the 21st Amendment, I thought it might be useful to post some additional excerpts from the legislative history of Webb-kenyon to illustrate the point that the purpose of that Act was to enable the states to enforce their police powers against interstate liquor, not to given […]

The enactment of the Webb-Kenyon Act is consistent with the history that came before it in reconciling the state¡¦s police power over local affairs with the federal government¡¦s power over interstate commerce. As noted in Part 5, under the traditional balance of power, the states had essentially plenary power to regulate the manufacture and consumption […]

Law Review editors can be on the look-out for my new article, a comprehensive empirical analysis of the causes of the consumer bankruptcy crisis over the past twenty-five years. I have not yet posted the paper as a working paper (I’ll let you know when the working paper is available), but here’s the abstract for […]

Wow, did the U.S. Basketball team look terrible yesterday at the Olympics. I missed the Puerto Rico game assuming that the U.S. would waltz through as usual, but watched yesterday once I learned there was some drama to this. This team is a joke–can’t shoot, can’t pass, and can’t play team defense. Michael Wilbon’s column […]

As noted in Wine Wars, Part 5, the alcohol jurisprudence of the 19th Century had the peculiar effect of discriminating in favor of out-of-state alcohol production. The Supreme Court had blessed the power of states to exercise their police power over local affairs to enact state prohibition or to allow local jurisdictions to exercise a […]

During the Nineteenth Century it was recognized that the states could exercise their police power to regulate alcoholic beverages within their borders and to prohibit the in-state manufacture and sale of alcohol. License Cases, 46 U.S. (5 How.) 504 (1847); Mugler v. Kansas, 123 U.S. 623 (1887). In the License Cases, Chief Justice Taney wrote, […]

As noted in prior posts (see archives from last week), there is no reasonable policy defense for discriminatory bans on interstate direct shipment of wine, the plain language of the 21st Amendment does not authorize discriminatory bans, and the dormant Commerce Clause does not automatically yield to other constitutional provisions, such as the 21st Amendment. […]

Debbie Majoras takes over as Acting Chair of the FTC, along with Jon Leibowitz. Both are very able lawyers and people of great character, smarts, and integrity. Which will be needed, of course, to help the Commission recover from the “Zywicki interregnum.” Seriously, Majoras and Leibowitz are excellent choices to continue the amazing successes of […]

If you are visiting DC in the next few months, there is an excellent exhibit at the National Gallery of Art on “Hudson River School Visions: The Landscapes of Sanford R. Gifford.” I’ve admired the Hudson River School for some time, but will confess to be a bit of novice; nonetheless, I had never heard […]

Seen yesterday in my neighborhood: “Other than eliminating Slavery, Fascism, Nazism, and Communism, what has War ever accomplished?”