The Intersection of Alcohol Law and Abortion Law

The Supreme Court's Alcohol decisions and recent abortion decision both rely on a particular approach to constitutional interpretation

The recent Supreme Court decision concerning Constitutional protection for abortion access, Dobbs v Jackson, motivates many of us to consider how the Supreme Court goes about interpreting the U.S. Constitution. The decision motivates us to try to understand what theory of constitutional analysis is available to justices as they answer questions of constitutional law.

My more concentrated run-ins with the U.S. Constitutional analysis have generally been in consideration of how to understand the Dormant Commerce Clause, which speaks to states’ general prohibition on regulating interstate commerce, and how it intersects with the 21st Amendment, the addition to the Constitution that ended prohibition and returned the power to regulate alcohol to the states.

Just as with the question of abortion and the Constitution, the analytical lens through which the Supreme Court has analyzed what states may do with regard to alcohol regulation has changed relatively recently. In fact, today the Supreme Court uses the theory of “Originalism” or “Original Intent” to address both questions of abortion and state alcohol regulation.

The Dobbs abortion decision has been called a victory for Originalism. I think that is correct. The same can be said about the 2005 Granholm v Heald Supreme Court decision that barred states from discriminating against out-of-state alcohol shippers.

“Originalism” or Original Intent is a way of looking at questions of constitutional law that instructs judges to determine the original intent of those that wrote the Constitution or of a law. It is a form of constitutional interpretation most associated with former Justice Anthony Scalia. Originalism is somewhat distinct from a “Texualist” approach to interpreting the Constitution, which compels judges to focus on the specific meaning of the words in the Constitution or a law. Both these approaches to constitutional interpretation contrast with the Living Constitution theory of constitutional interpretation that asks judges to embrace the view that the meaning of the Constitution is dynamic and changes as society changes. Living Constitutionalism views our founding document as having, in parts, been written in such broad terms so as to allow future generations to adapt it to new circumstances. This approach to constitutional interpretation guided those who wrote the Roe v Wade Supreme Court decision in 1973.

The Dobbs v Jackson decision advances the notion that nothing about the 14th Amendment to the Constitution or the intent of its authors and ratifiers was meant to enshrine a constitutional right to abortion. This “originalist” approach contrasts with the idea that within the meaning of the 14th Amendment as well as other parts of the Constitution, there can be found a right to abortion via an implied right to privacy. This is a contrast between Originalism and a Living Constitution approach to legal analysis.

A Living Constitution approach was never adopted by the Supreme Court in its decisions concerning the 21st Amendment and states’ rights to regulate alcohol. In fact, over time, the Supreme Court moved from a “Textualist” approach to understanding the 21st Amendment to an “Originalist” approach similar to how the Dobbs v Jackson ruling was determined.

The 21st Amendment did more than end Prohibition. In addition to doing that, the 21st Amendment returned to the states the right to regulate alcohol sales and consumption just as the states did prior to Prohibition. The second section of the 21st Amendment reads:

“The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.”

Various challenges to state alcohol laws began to be brought not long after the passage of the 21st Amendment in 1933. In the Supreme Court decisions answering these challenges, the Court generally declared that section 2 of the 21st Amendment was clear in stating that “violations of the laws” of the states were prohibited. This interpretation leaned heavily on the text of section 2 of the 21st Amendment. These decisions were determined by a textualist approach to constitutional interpretation.

This interpretation eventually began to change once the court, purposefully or not, began employing an originalist approach to understanding the meaning of section 2 of the 21st Amendment. In the groundbreaking Granholm v Heald Supreme Court decision, the Court outlines this migration from a textualist to an origninalist interpretative lens:

“The aim of the Twenty-first Amendment was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. The Amendment did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they had not enjoyed at any earlier time.

“Some of the cases decided soon after ratification of the Twenty-first Amendment did not take account of this history and were inconsistent with this view. In State Bd. of Equalization of Cal. v. Young’s Market Co., for example, the Court rejected the argument that the Amendment did not authorize discrimination:

“ ‘The plaintiffs ask us to limit this broad command [of §2]. They request us to construe the Amendment as saying, in effect: The State may prohibit the importation of intoxicating liquors provided it prohibits the manufacture and sale within its borders; but if it permits such manufacture and sale, it must let imported liquors compete with the domestic on equal terms. To say that, would involve not a construction of the Amendment, but a rewriting of it.’

“The Court also declined, contrary to the approach we take today, to consider the history underlying the Twenty-first Amendment. This reluctance did not, however, reflect a consensus that such evidence was irrelevant or that prior history was unsupportive of the principle that the Amendment did not authorize discrimination against out-of-state liquors.

“Our more recent cases, furthermore, confirm that the Twenty-first Amendment does not supersede other provisions of the Constitution and, in particular, does not displace the rule that States may not give a discriminatory preference to their own producers.”

The above shows that over time, the Supreme Court began to look closely at the intent of of the framers of the 21st Amendment. In doing this, the Court comes to the conclusion that section 2 of the 21st Amendment did not, as the actual text suggests, mean any state alcohol law, regardless of whether it discriminates against interstate commerce, was authorized by the 21st Amendment. Rather, the Court claims, in classic originalist fashion, that there is a specific meaning to section 2 of the 21st Amendment that is rooted in the intent of its writers to allow state regulation of alcohol without at the same time authorizing discrimination of interstate commerce.

This change in the Court’s approach to alcohol cases is a change from a textualist analysis to an originalist analysis, just as is the recent abortion case.

In Justice Elena Kagen’s nomination hearings in 2010, she uttered what are now famous words:

“Sometimes they laid down very specific rules. Sometimes they laid down broad principles. Either way, we apply what they tried to do. IN THAT WAY WE ARE ALL ORIGINALISTS.”

Based on the direction of the Court we saw in the recent abortion decision as well as its decisions going back to 2005 in the Granholm alcohol shipping case, Justice Kagen appears to be correct.

The more liberal Kagen, however, is as much a proponent of the theory of a “Living Constitution” as she is an Originalist in her thinking concerning interpretive frameworks. Yet I’m not even sure how one could approach questions of alcohol shipping and discrimination against interstate commerce from a Living Constitution perspective. While I’m sure it could be done, I’m not sure how. Those who support state’s ability to discriminate against out-of-state wine shippers, including wineries, take a textualist approach in understanding the meaning of the 21st Amendment. This group includes Justices Clarence Thomas and Neil Gorsuch as well as American alcohol wholesalers and their representatives.

The fact that the Dobbs abortion decision and the Granholm decision are both examples of an originalist interpretation of the Constitution is not to say both decisions are equally momentous. They are not. However, they are both outcomes of the same way of thinking about the meaning of the U.S. Constitution.