To Hell with States’ Rights! – Part I
There are a number of states that make it next to impossible for a consumer to get wine direct-shipped to her. Most states enact and maintain these laws purportedly to keep alcohol out of the hands of “minors” — although there are no laws against kids under 21 being targeted by military recruiters — which is why the legal drinking age went down during the Vietnam War — to 18 in a number of states — but back up to 21 in order for the states to be eligible for federal highway funds.
Most of these laws effectively protect the three-tiered system, that takes wine from the winery, to the distributor, to the retail establishment. And I would argue that there is a pretty strong lobby that seeks protectionism for its state-run wineries, and its distribution system.
It would seem to me that any Constitutional lawyer could argue these laws were in violation of the Commerce Clause. But Joe, who spent a great deal of time arguing with my fellow law students while I was in law school, pointed to Prohibition as the culprit. And upon further review, I believe he’s right. (Just don’t tell him I said so!)
Prohibition in the United States
While the Eighteenth Amendment immediately comes to mind when one talks about Prohibition, the real culprit was an Ohio attorney and lobbyist named Wayne B. Wheeler. A Lyndon Johnson-type power broker, Wheeler was head of the National Anti-Saloon League, a “temperance” organization that used grassroots organizing with its entire mission being the prohibition of alcohol. Focusing on the extensive use of churches to seize political power, the League supported or opposed candidates entirely based on their position regarding prohibition and nothing else. It completely disregarded their political party affiliation or position on other issues. Wheeler was truly the Jack Abramoff of his era:
“Wayne B. Wheeler controlled six Congresses, dictated to two Presidents of the United States, directed legislation in most of the States of the Union, picked the candidates for the more important elective state and federal offices, held the balance of power in both Republican and Democratic parties, distributed more patronage than any dozen other men, supervised a federal bureau from outside without official authority, and was recognized by friend and foe alike as the most masterful and powerful single individual in the United States.”
Wheeler authored The Volstead Act, named after Andrew Volstead, Head of the House Judiciary Committee which combined with the Eighteenth Amendment, made “intoxicating liquors” excluding those used for religious purposes and sales throughout the United States, prohibited. The law was vetoed by President Woodrow Wilson, but passed on the same infamous day, October 28, 1919.
Except for Home Brew — Zinners Rejoiced!
Section 29 of the Volstead Act allowed 200 gallons (the equivalent of about 1000 standard 750 ml bottles) of “non-intoxicating cider and fruit juice” to be made each year at home. Initially “intoxicating” was defined as anything over 0.5%, but the Bureau of Internal Revenue soon struck that down and this effectively legalized home wine-making. Some vineyards embraced the sale of grapes for making wine at home; Zinfandel grapes were popular among home wine makers living near the vineyards.
The Eighteenth Amendment
Combined with the Volstead Act, which defined “intoxicating liquors” was the Eighteenth Amendment, ratified on January 16, 1919. Here’s the text of the first and only Amendment to date that has been repealed:
Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
Section 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.
Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
Too bad 36 states decided to ratify the amendment prior to certification. The following states ratified the amendment:
- Mississippi (January 8, 1918)
- Virginia (January 11, 1918)
- Kentucky (January 14, 1918)
- North Dakota (January 25, 1918)
- South Carolina (January 29, 1918)
- Maryland (February 13, 1918)
- Montana (February 19, 1918)
- Texas (March 4, 1918)
- Delaware (March 18, 1918)
- South Dakota (March 20, 1918)
- Massachusetts (April 2, 1918)
- Arizona (May 24, 1918)
- Georgia (June 26, 1918)
- Louisiana (August 3, 1918)
- Florida (November 27, 1918)
- Michigan (January 2, 1919)
- Ohio (January 7, 1919)
- Oklahoma (January 7, 1919)
- Idaho (January 8, 1919)
- Maine (January 8, 1919)
- West Virginia (January 9, 1919)
- California (January 13, 1919)
- Tennessee (January 13, 1919)
- Washington (January 13, 1919)
- Arkansas (January 14, 1919)
- Kansas (January 14, 1919)
- Alabama (January 15, 1919)
- Colorado (January 15, 1919)
- Iowa (January 15, 1919)
- New Hampshire (January 15, 1919)
- Oregon (January 15, 1919)
- Nebraska (January 16, 1919)
- North Carolina (January 16, 1919)
- Utah (January 16, 1919)
- Missouri (January 16, 1919)
- Wyoming (January 16, 1919)
- Minnesota (January 17, 1919)
- Wisconsin (January 17, 1919)
- New Mexico (January 20, 1919)
- Nevada (January 21, 1919)
- New York (January 29, 1919)
- Vermont (January 29, 1919)
- Pennsylvania (February 25, 1919)
- Connecticut (May 6, 1919)
- New Jersey (March 9, 1922)
The following state rejected the amendment:
- Rhode Island
The following states have not ratified the amendment:
The Eighteenth Amendment went into effect one year later on January 29, 1920. (As you can see from the list, some state legislatures had already enacted statewide prohibition prior to the ratification.) It was too bad, because what resulted was the steep escalation of organized crime.
Production, importation and distribution of alcoholic beverages — once legitimate business activities — were taken over by criminal gangs, who fought each other for market control in violent confrontations which often included mass murder. Gangsters like Chicago’s Al Capone became rich and were admired, effectively celebrating criminals as national celebrities.
Enforcement was difficult because the gangs’ wealth made it easy for them to bribe underpaid and understaffed law-enforcement personnel as well as hire top attorneys. Many citizens were sympathetic to bootleggers; and respectable citizens frequented illegal speakeasies. Loosening of social mores during the 1920s led to the popular cocktail and the cocktail party among higher socio-economic groups. Those do-gooders so inclined to assist authorities were often intimidated, maimed or even murdered.
In several major cities—notably those which served as major points of liquor importation, including Chicago and Detroit—gangs wielded effective political power. A Michigan State Police raid on Detroit’s Deutsches Haus once netted the mayor, the sheriff, and the local congressman.
Prohibition lost advocates as alcohol became more socially accepted. The public clearly recognized prohibition as the culprit in the growth of organized crime. By 1933, public opposition to prohibition had become overwhelming.
Stay tuned. In Part II we’ll discuss the repeal of the Eighteenth Amendment; the long-lasting consequences of the language used in the text of the Twenty-First Amendment, and its affect on direct shipping from out-of-state wineries and retailers.
Amy Corron Power,