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Direct shipping and the 21st Amendment Original Intent Issue

As some things change in life, they stay the same. The U.S. Constitution lives by that same precept. As life evolves and unforeseeable facts develop, the legal doctrines developed years ago, are able to apply themselves to an ever-changing society.

When the framers wrote the 4th Amendment that forbids unreasonable search and seizures, they could not foresee that they would deal with phone bugs or other eavesdropping devices. Although the facts were unforeseeable at the time of constitutional drafting, the legal doctrine developed from the 4th Amendment’s unreasonable search and seizure provisions applied to the new set of facts.

Bringing this home to liquor, the Framers of the 21st Amendment in 1933 could have never foreseen the advent of the internet and the internet marketplace, which would evolve into a multi-billion-dollar industry. But like so many constitutional situations before it, although the framers could not foresee the facts, the 21st Amendment’s original intent provided a legal framework for properly adjudicating 21st Amendment issues.

The history of the 21st Amendment demonstrates that its intent was to preclude state discrimination.

Although the early Supreme Court cases rejected the non-discrimination principle in the early Young’s Market line of cases, which relied on a strict textualist reading, the Court ended up course correcting and ruling against state laws that discriminated against interstate commerce.

Granholm provided a great history for liquor geeks that want to know the history of the 21st Amendment.

Prior to the 18th Amendment, state liquor laws were invalidated as either discriminating, or placing an impermissible burden on interstate commerce.

Additionally, state liquor laws prior to the 18th Amendment, became ineffective as written because a state could ban domestic production, but were ineffective at regulating imported liquor in its original package. Under the original package doctrine, goods shipped in interstate commerce were immune from state regulation, while in their “original package.” Granholm v. Heald, 544 U.S. 460, 477 (2005). The original package doctrine constituted a loophole or workaround to a state’s ban on alcohol.

In an attempt to remedy, Congress passed the Wilson Act “which empowered the States to regulate imported liquor on the same terms as domestic liquor.” Granholm v. Heald, 544 U.S. 460, 461 (2005)

The Court however construed the Wilson Act as permitting regulation of the resale of imported liquor and “not its direct shipment to consumers” Granholm v. Heald, 544 U.S. 460, 461 (2005)

To remedy this new problem, Congress passed the Webb-Kenyon Act to close the direct shipping loophole, the Court in Granholm held that Webb-Kenyon’s purpose was to extend the Wilson Act, which forbid discrimination. The Court buttressed this position when it stated that Webb-Kenyon did not repeal the Wilson Act which forbid discrimination.

Analyzing the history of liquor regulation pre-21st Amendment, the Court’s position was that:

“§ 2 only restored to the States the powers they had under the Wilson and Webb-Kenyon Acts. The Twenty-first Amendment’s aim was to allow States to maintain an effective and uniform system for controlling liquor by regulating its transportation, importation, and use. It did not give States the authority to pass nonuniform laws in order to discriminate against out-of-state goods, a privilege they never enjoyed.” Granholm v. Heald, 544 U.S. 460, 462 (2005)

As we look at the original intent of the 21st Amendment seen through the history of what developed pre-21st Amendment, it is clear that the nondiscrimination principle is embedded in these laws. Any fix to issues related to the importation of alcohol was intended to keep out-of-state alcohol importers from utilizing loopholes to get around state prohibition on alcohol, and not to exclude them from a marketplace, which their in-state competitors could enter.


Any attempts nowadays to utilize § 2 of the 21st Amendment to permit discrimination against an out-of-state entity, would seem to violate the original intent of the 21st Amendment.

As we see from the 4th Amendment, many Constitutional Amendment were built in with a strong and robust intent, which provides the answer to many different questions before a Court. Remarkably, an Amendment’s intent can provide the answer even to a factual situation it could not foresee like the advent of eavesdropping equipment.

The Constitution does not need to be a living breathing document, as the elements for a sound decision are within the parameters of its intent.

As the states justify discriminatory wine shipping laws through the use of § 2 of the 21st Amendment, history demonstrates that the original intent of the 21st Amendment runs afoul of the states’ position.

With the original intent of the 21st Amendment running afoul of the states’ position, the fall back is that the text of the 21st Amendment falls in line with their position.

However what history demonstrates is Court precedent does not agree with the states’ position which permits discrimination. The early line of the Young’s Market decisions relied on the text of the 21st Amendment to conclude on issues, however, since Hostetter and Bacchus and followed by Brown-Forman, Healy, Granholm, and Tennessee Wine, the Court conforming to the original intent of the 21st Amendment “held that state regulation of alcohol is limited by the nondiscrimination principle of the Commerce Clause.” Granholm v. Heald, 544 U.S. 460, 487 (2005)


In concluding, the original intent of the 21st Amendment speaks loud and clear, and discrimination runs afoul of its purpose. From Bacchus which dealt with a tax on importers, to Granholm, which dealt with wine shipping, even when the situations and facts are radically different, the same sound constitutional principles apply. Any Court that decides differently ignores how the 21st Amendment properly applies itself to matters before it.