At a time when consumers enjoy an unprecedented level of access to the goods of their choice, why does a patchwork of state laws prevent equal access to one class of goods: alcoholic beverages? The not-so-simple answer lies in the history and application of section 2 of the Twenty-first Amendment, and in the tension between the Twenty-first Amendment and the Commerce Clause.
Spearheaded by farmers, wineries, and consumers who seek to expand the market for wine beyond the traditional three-tier system, the “wine wars” of recent years have challenged state statutes that ban or greatly restrict the direct shipment to state residents of wine and other alcoholic beverages from out-of-state sources. Opinion across the circuit courts is divided: The Second and Seventh Circuits favor a strict interpretation of section 2 and have upheld New York and Indiana bans on direct shipment of wine to consumers; the Third, Fourth, Fifth, Sixth, and Eleventh Circuits have enjoined states from enforcing their direct shipping prohibitions and favor an approach that relies on the Dormant Commerce Clause and a realistic assessment of the national wine market. In its 2004–2005 Term, the Supreme Court has consolidated three cases from the Second and Sixth Circuits for review to answer the question: “Does a State’s regulatory scheme that permits in-state wineries directly to ship alcohol to consumers but restricts the ability of out-of-state wineries to do so violate the dormant Commerce Clause in light of Sec. 2 of the 21st Amendment?”
This Comment asserts that reconciliation of the Commerce Clause and the Twenty-first Amendment is preferable to historical interpretations of the Twenty-first Amendment as an exception to the Commerce Clause; specifically, it argues for a reconciliation of the two provisions by analogizing to First Amendment jurisprudence and by using the methodology employed by the Court in R.A.V. v. City of St. Paul.