A Reflection on the 21st Amendment views of Justice Stevens

This month our nation lost a patriot who served our nation with great distinction when retired Supreme Court Justice John Paul Stevens died at the age of 99.  Justice Stevens was a brilliant man of many experiences; Navy seaman, World War Two veteran, antitrust lawyer, and eventually the third longest serving Supreme Court Justice.

While other forums have covered his influence on various issues facing the Supreme Court, I thought a quick review of some of his views on the 21st Amendment would be most relevant to the pages of this website.

As he noted in interviews, he was a 13-year-old in Al Capone’s adopted town of Chicago in 1933 when Prohibition was repealed.  Stevens had first hand stories of the dangers of the power of criminal elements created by Prohibition.  He shared some of these experiences when he was interviewed as part of Ken Burns’ PBS documentary on the Prohibition.

Stevens did not agree with recent Court treatment of alcohol and the history of the 21st Amendment.  He dissented in alcohol cases related to the dormant Commerce clause such as Granholm v. Heald 544 U.S. 460 (2005) and Bacchus Imports v. Dias 468 US 263 (1984).  He expressed bewilderment at the selective and revisionist view of history employed by recent court decisions to try to shoehorn alcohol into the same analysis used for every other consumer product.

Some of his highlights from his 2005 dissenting opinion in Granholm v Heald  include:

Today many Americans, particularly those members of the younger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products. That was definitely not the view of the generations that made policy in 1919 when the Eighteenth Amendment was ratified or in 1933 when it was repealed by the Twenty-first Amendment.”

The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State’s right to discriminate in its regulation of out-of-state alcohol could not have been clearer.”

The New York and Michigan laws challenged in these cases would be patently invalid under well settled dormant Commerce Clause principles if they regulated sales of an ordinary article of commerce rather than wine. But ever since the adoption of the Eighteenth Amendment and the Twenty-first Amendment, our Constitution has placed commerce in alcoholic beverages in a special category.”

As Justice Thomas has demonstrated, the text of the Twenty-first Amendment is a far more reliable guide to its meaning than the unwritten rules that the majority enforces today.”

Justice Stevens previously authored the dissenting opinion in the Bacchus Imports v. Dias case regarding a local pineapple liquor taxation exemption.   He was greatly puzzled by the sudden shift from Supreme Court precedent on the meaning 21st Amendment and the majority’s sudden “finding” of ambiguity where there was none before.  His 1984 opinion was prescient as subsequent Supreme Court decisions seemingly became unmoored from the textual and historical port of the 21st Amendment.

Section 1 of the Twenty-first Amendment, ratified in 1933, repealed the Eighteenth Amendment. However, the constitutional authority of the States to regulate commerce in intoxicating liquors did not revert to its status prior to the adoption of these constitutional Amendments; … This Court immediately recognized that this broad constitutional language confers power upon the States to regulate commerce in intoxicating liquors unconfined by ordinary limitations imposed on state regulation of interstate goods by the Commerce Clause and other constitutional provisions, 

Today the Court, in essence, holds that the Hawaii tax is unconstitutional because it places a burden on intoxicating liquors that have been imported into Hawaii for use therein that is not imposed on liquors that are produced locally. As I read the text of the Amendment, it expressly authorizes this sort of burden. Moreover, as I read Justice Brandeis’ opinion for the Court in the seminal case of State Board of Equalization v. Young’s Market Co., supra, the Court has squarely so decided.

I imagine Justice Stevens would be even more puzzled by some of the interpretations of the “history” of the 21st Amendment that were created in the Supreme Court’s recent decision in Tennessee Wine and Spirits Retailers Association vs. Thomas.   I for one hope more of the common-sense wisdom and historical appreciation outlined by Justice Stevens seeps back into future Supreme Court majority opinions on alcohol regulation.


  1. Dennis Bedard says:

    The Court’s jurisprudence on the 21st Amendment is baffling to say the least. But I think Stevens in Granholm, struck at the heart of the problem when he stated “[t]oday many Americans, particularly those members of the younger generations who make policy decisions, regard alcohol as an ordinary article of commerce, . . .” In other words, you are all wine tasting elitists who just love to order it on line and cannot fathom paying more for a bottle made out of state than in state.


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