The Volokh Conspiracy -

Justice Abraham Simpson Stevens:

One more point on the dissent of Justice Abraham Simpson Stevens in the wine case--his dissent is truly one of the more idiosyncratic opinions I recall reading.

Is that me and my colleagues at the FTC he has in mind in referring to those youngins engaged in this newfangled policy analysis?

Today many Americans, paricularly those members of the yonger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.

Oh these kids today with their fancy wines and "rock and roll" music.... In my day we didn't have no "Merlot" or "Pinot Gris"--we drank Heilemann's and, by george, we liked it!

He goes on to add a canon of law with which I am not familiar:

The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State's right to discriminate in its regulation of out-of-state alcohol could not have been clearer.

Is this a real canon of law? He cites no authority for this novel "respect your elders" canon of construction, so I am not sure what to make of it. Does it apply to statutes as well? If a judge lived through the enactment of the Clean Air Act, does that mean he is entitled to greater deference because he remembers Pittsburgh in the 1950s?

But there is another, more important reason, why Brandeis's recollections of the 21st Amendment are largely irrelevant. In the same opinion that Stevens points to, the Young's Market case, Brandeis also expresses the view that the 21st Amendment also made the 14th Amendment's Equal Protection Clause inapplicable to alcohol regulations. Stevens notes that many of the state laws enacted after the 21st Amendment were discriminatory--but they also violated the 1st Amendment, Due Process Clause, and other assorted provisions of the Constitution. So unless Stevens is willing to say that states can permit sale of alcohol only to whites and not to blacks, or to prohibit the sale of only sacramental or kosher wine, it is hard to see that this particular argument gets him very far.

A very peculiar opinion.

	[Todd Zywicki, May 17, 2005 at 6:06pm] Trackbacks Justice Abraham Simpson Stevens: One more point on the dissent of Justice Abraham Simpson Stevens in the wine case--his dissent is truly one of the more idiosyncratic opinions I recall reading. Is that me and my colleagues at the FTC he has in mind in referring to those youngins engaged in this newfangled policy analysis? Today many Americans, paricularly those members of the yonger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products. Oh these kids today with their fancy wines and "rock and roll" music.... In my day we didn't have no "Merlot" or "Pinot Gris"--we drank Heilemann's and, by george, we liked it! He goes on to add a canon of law with which I am not familiar: The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State's right to discriminate in its regulation of out-of-state alcohol could not have been clearer. Is this a real canon of law? He cites no authority for this novel "respect your elders" canon of construction, so I am not sure what to make of it. Does it apply to statutes as well? If a judge lived through the enactment of the Clean Air Act, does that mean he is entitled to greater deference because he remembers Pittsburgh in the 1950s? But there is another, more important reason, why Brandeis's recollections of the 21st Amendment are largely irrelevant. In the same opinion that Stevens points to, the Young's Market case, Brandeis also expresses the view that the 21st Amendment also made the 14th Amendment's Equal Protection Clause inapplicable to alcohol regulations. Stevens notes that many of the state laws enacted after the 21st Amendment were discriminatory--but they also violated the 1st Amendment, Due Process Clause, and other assorted provisions of the Constitution. So unless Stevens is willing to say that states can permit sale of alcohol only to whites and not to blacks, or to prohibit the sale of only sacramental or kosher wine, it is hard to see that this particular argument gets him very far. A very peculiar opinion. Related Posts (on one page): Stevens, Originalism, and the Wine Opinion: Justice Abraham Simpson Stevens: [Orin Kerr, May 18, 2005 at 11:16am] Trackbacks Stevens, Originalism, and the Wine Opinion: I have chosen to remain rationally ignorant about the 21st Amendment — while it's one Amendment I am firmly behind, I can't say I know anything about the details — but I am not sure I share co-blogger Todd's reaction, also shared by Stephen Bainbridge, to Justice Stevens' dissenting opinion in the wine cases. Persuasiveness aside, the Stevens dissent strikes me as relatively standard originalist fare. The opinion attempts to contrast the original understanding of the 21st Amendment with the policy views of the present day, and argues that the policy views of the present day should not trump the original understanding of the 21st Amendment. Granted, the idea that Justice Stevens would suddenly embrace originalism is worth a chuckle. He is a rather late convert to the faith, and I suspect won't be found in church next Sunday. But the structure of his argument seems common enough. Consider his view that we should pay special deference to the views of those who were around at the time the 21st Amendment was passed. This seems similar to the view the Supreme Court expressed in Ogden v. Saunders, 25 U.S. 213 (1827), that there is a "presumption, that the cotemporaries of the constitution have claims to our deference on the question of right, because they had the best opportunities of informing themselves of the understanding of the framers of the constitution, and of the sense put upon it by the people when it was adopted by them." More recently, this approach has appeared in a number of recent opinions that feature originalist modes of interpretation, among them Alden v. Maine, 527 U.S. 706 (1999), in which Justice Kennedy examines the views shared by "[t]he generation that designed and adopted our federal system" for evidence of the "original understanding of the States' constitutional immunity from suit" that can shed light on the meaning of the Eleventh Amendment. The basic idea seems to be that the views of those around at the time a constitutional provision was adopted can provide some insight into the original understanding of constitutional text. Of course, none of this means that Stevens was right or wrong, or that originalism is a good or bad tool for understanding the constitution. But it does leave me less persuaded that the Stevens opinion is somehow outside the mainstream of judicial craft. Related Posts (on one page): Stevens, Originalism, and the Wine Opinion: Justice Abraham Simpson Stevens: