Interesting stuff going on in the leftmost precincts these days.
Bev Harris, of BlackBoxVoting.org – one of the more breathless conspiracy theorists around – has been banned by Democrapic Underground. Apparently she’s too offensive in a wacky, left-wing conspiracy theorist kind of way for even the loonies at DU. Wow! How wacky is she? You will note I was on to here just a couple days ago, right here.
Then there’s the brain trust at [h]At[e]rios, who decided to delve into complex matters of jurisprudence today, only to reach the result, “We smart, conservatives stoooopid.”
The facts of the case are simple – Michigan allows in-state wineries to sell wine over the internet, but prohibits out-of-staters from doing so. The 21st Amendment, which repealed prohibition, reserved to the states the power to regulate liquor sales.
That would resolve the case, but the Constitution ain’t that simple. The Commerce Clause – which gives Congress the power to regulate interstate commerce (things in commerce between the states; instrumentalities of interstate commerce (such as trucks, railway stations, etc); and things that in the aggregate have a locus with commerce – like wheat farming. That Clause states that Congress has the power “To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. . .”
But wait, you say – the state is regulating commerce here by prohibiting internet wine imports and such regulation is authorized under the 21st Amendment. So what does the Fed care? That’s a correct reading, in a way – but there is an adjunct, judge-created doctrine that accompanies the Commerce Clause, called the Dormant Commerce Clause. That bit of wizardry prevents states from putting undue burdens on out-of-state businesses who want to do business within a state. Reasonable burdens will be upheld. For example, states can impose a reasonable tax on trucks passing through, since the trucks beat up the roads, and that costs money. Even though the out-of-state trucks are burdened with a tax that in-staters aren’t subject to, it will be upheld because it is reasonable and moderate. But the state couldn’t impose a $5,000 per trip tax on out-of-state trucks; that would be an undue burden.
Now, the Dormant Commerce Clause is an odd creature. Some originalists, such as Justice Scalia, get really huffy if you mention that term in their presence. According to originalists, the Dormant Commerce Clause doctrine is exactly what the actual Commerce Clause is – it’s a provision allowing the Fed Gov to break down burdens on interstate commerce. More liberal interpreters of the Constitution, such as Justice Breyer, are likely to adhere to the term “Dormant Commerce Clause” because the originalist notions of the Commerce Clause won’t support expansive exercises of power such as extensive regulation, Violence Against Women Acts, and so forth. Hewing to the notion that the Commerce Clause is defensive in nature would strengthen the originalist interpretation and weaken the liberal interpretation, so a rhetorically friendly-er term is needed to describe this function. Hence the Dormant Commerce Clause – the only structural clause of the Constitution that is enforced, even though it doesn’t exist. (Note – you are probably familiar with several Amendments to the Bill of Rights that are enforced despite the fact they don’t exist, such as the Eleventy First Amendment which protects lap dancing, and the Fornty Fifth Amendment, which is a Constitutional right to abortion. But these are in the individual rights section, and not the structural portion of the Constitution – so they aren’t “structural” clauses).
This pathetically complex tableau, is, of course, over-simplification. The history of the Commerce Clause and its Dormant imaginary friend is more detailed and checkered than this, but I’m trying to make it palatable to you.
Whew. You tired yet?
The issue presented, is whether the 21st Amendment essentially preempts the Commerce Clause when it comes to regulation of liquor (which would undermine the Fed Gov’s claims to be able to regulate certain aspects of that industry, such as advertising and purity, and maybe taxes); or whether the 21st Amendment should be interpreted so as to give both the Commerce Clause and that Amendment effect concurrently, to the extent feasible.
In the intellectual and interpretive sense, this is a very tricky question, and if I had to guess, I’d say that the Dormant Commerce Clause, or the originalist reading of the textually extant Commerce Clause, will win out. That’s right, Michigan will get a comeuppance. You heard it here first.
Going further, the originalists will want to restore an originalist interpretation of the Commerce Clause, continuing a super-slo-mo revival of a somewhat originalist version of the Clause, started in Lopez and continued in Morrison. The liberals will want to think about the Dormant Commerce Clause, and will think about the social libertarian aspects of permitting widespread booze sales and find that Michigan’s position is untenable. So a solid majority of the court should favor the position taken by the Second Circuit, which is that states can’t unduly restrain trade in a manner discriminatory against other states. You may see a fractured opinion, with the originalists sticking to the text and the liberals sticking to the Dormant Clause. I’m thinking this looks a lot like a 6-3 (or maybe 5-3) opinion.
That’s not what our friends at Atrios think. Here’s the medulla obtusatta himself, Duncan Black, passing judgment:
Perhaps the lawyers will disagree, but it seems that the stupidest case coming before the Supreme Court is the wine importation one. The basic question is – was the 21st amendment which explicitly grants states the right to regulate wine importation intended to override the commerce clause which forbids such things.
Well, duhhh, of course it was.
Maybe I’m just stupid compared to Duncan – and maybe the Second Circuit (encompassing New York, inter alia) is also packed with ninnies too.
Let’s hear what the Atriettes (or as Duncan refers to them, the Bitches) have to say about it.
Oh, nevermind. There are a handful of smart comments interspersed among a hundred little heaps of intellectual turd. Most of the comments echo Duncan’s insipid comments – so you have to conclude his commenters are either = or > idiots, or they are sycophants without an original idea. Go look for yourself. I kinda hope the smarter commenters go someplace else, to some smarter blog – commenting in that forum, they look like passengers who mistakenly got on the short bus.
The most interesting thing in the comments section, though, is the vitriol expressed at Ken Starr, who is counsel for the liquor drinkers in Michigan, who want cheaper internet wine. Starr is a shit hot appellate attorney, and the moron monkeys spend a lot of time mocking out his professional abilities. In a way it’s sort of funny – the end result for the Atriettes is that if Starr loses, their booze will be more expensive and harder to get. Moreover, if Michigan wins and the holding is based not on 21st Amendment grounds, but on Commerce Clause grounds, states will use this case as a rationale for implementing internet sales taxes against out-of-state businesses. This would, of course, have a chilling effect on internet commerce. I wonder if that’s what Duncan and the Atriettes are angling for?
Naah, couldn’t be. I think they are too dumb to know what the unintended consequences of a Ken Starr loss would be, and to them it’s more important to root for a Starr humiliation.
Come to think of it, that’s pretty much the story of the left over its entire history – the elevation of personal hatred into political passion, coupled with an abject failure to anticipate the unintended consequences of their bright ideas and knee jerk prejudices.