Great win for the State of New York on 21st Amendment

A very impressive win for New York today as the Second Circuit rejected a challenge by an out-of-state retailer seeking to sell to NY consumer.   In a strong opinion by Circuit Judge Wesley and a very informational concurrence by Circuit Judge Calabresi, the Second Circuit rejected the claims of the plaintiff.   The decision notes that the NY ABC laws are; “instituting a three-tier system for the regulation of alcoholic beverages, do not discriminate against out-of-state producers in violation of the Commerce Clause of the United States Constitution, Article 1, Section 8, Clause 3, and are thus a valid exercise of the state’s rights under the Twenty-first Amendment. ”  The Second Circuit opinion in Arnold’s Wine v. Boyle can be found here: buyrite-v-boyle.

Circuit Judge Calabresi noted in his concurrence the challenge of lower courts and state legislatures trying to harmonize and implement the Supreme Court jurisprudence on the 21st Amendment.  (“It can leave state legislatures and lower federal courts with no firm understanding of what the law actually is.”) Moreover, he cautioned against judges putting their own spin on history saying “But judges are not historians with fancy robes and life tenure.”

 I would have added a section to this concurrence noting that the beauty of the 21st Amendment is if there is a perceived alcohol related policy problem, people can fix it in their state legislature or at the ballot box. For example, you want the county to be “dry” or “wet” or you want to limit licenses; vote on it.  Don’t have the federal court set alcohol policy.

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