Repeal of Prohibition

Claiming that the core purposes of the Twenty-First Amendment are promoting temperance, ensuring orderly market conditions, and raising revenues. Examining the language of the Amendment and the arguments used to read it expansively and narrowly, as well as the history of federal liquor legislation prior to and after prohibition.

Discussing the history of the Twenty-First Amendment and arguing that it restores the proper balance between the state and federal governments but that the Amendment did not give states the power to interfere with the federal government’s control over interstate commerce. Analyzing the pre-prohibition constitutional allocation of powers.

Arguing that the history and application of Section 2 of the Twenty-First Amendment allows a patchwork of different state laws regulating alcohol in tension with the Commerce Clause. Discussing the “wine wars” cases that have generated a circuit split about whether states can ban direct shipment of wine to consumers. Arguing that harmonizing the Commerce Clause and the Twenty-First Amendment is better than historical interpretations casting the Amendment as an exception to the Commerce Clause.

Arguing that Section 2 was intended to supersede specific Supreme Court cases interpreting the Commerce Clause. Discussing the history of prohibition and its relevance to the Supreme Court’s decision in Granholm v. Heald.