The first mention of legislative history that O’Connor points to is a floor statement by Rep. Lea of California. O’Connor writes, “Although neither the House of Representatives nor the state ratifying conventions deliberated long on the powers conferred on the States by § 2, but see 76 Cong.Rec. 2776 (1933) (statement of Rep. Lea of Cal. that the section was “the extreme of State rights” because it obligated the Federal Government to assist the enforcement of state laws “however unwise or improvident”).” Note a few things about Rep. Lea’s statement. It is part of the Congressional Record of January 28, 1933. If the statement in question was actually uttered on the floor of the House, it was done so not during the general debate over the 21st Amendment (which occurred primarily during February of that year) but rather is inserted into the middle of the debates over the “Departments of State, Justice, Commerce, and Labor Appropriate Bill, Fiscal Year 1934″ in a Section of the Congressional Record entitled “Extension of Remarks” (which may suggest that either the words were neither spoken nor heard by anyone but merely inserted into the record, although it is not clear).

Rep. Lea’s statement thus occurs immediately after Congressman Kerr gave remarks on the funding request of the Department of Commerce as it concerned the commodity division of the Department, praising the commodity division for its efforts in promoting peanut and tobacco growers. The final sentence before Congressman Lea’s remarks by Congressman Kerr were, “To destroy the tobacco industry or even neglect it would imperial the greatest tax-producing commodity of this nation.” Then, with no warning or context, Lea takes the floor and utters the remarks in question (to which we will return in a moment). Immediately following Lea’s remarks, Mr. Gibson took to the floor to address the question of the funding request of the Labor Department covering the Bureau of Immigration and the financial difficulties of the Immigration Bureau caused by an unusually large number of alien deportations during the prior year.

I go into this discussion of context in order to demonstrate an obvious point—Lea’s comments, if uttered at all, were done at a completely incongruous time, when Congress was not even specifically debating the 21st Amendment. They are quite obviously one man’s view, uttered at a time when no one was paying attention, and given that the 21st Amendment wasn’t even under discussion at the time, there is no indication that anyone heard or considered Lea’s comments as shedding any light on the 21st Amendment at all. Um, I mean, no one except Justice O’Connor.

Ok, so let’s look at the substance of the remark. Justice O’Connor says it evidences that section 2 of the 21st Amendment was, “‘the extreme of State rights’ because it obligated the Federal Government to assist the enforcement of state laws `however unwise or improvident.’” But is that what Lea really meant?

Lea—like all the others discussed in earlier posts—believed that the actual purpose of the 21st Amendment was to restore the pre-21st Amendment constitutional balance. It is true that he thought that §2 would force the federal government to help enforce state laws, no matter how “unwise or improvident.” But as noted in earlier posts, the purpose of all preceding legislation was to help the states to enforce their laws against interstate alcohol, which is clearly different from enabling states to flaunt the nondiscrimination principle of the dormant commerce clause. There is no indication that Lea thought that the 21st Amendment would make valid state laws that were otherwise constitutionally invalid.

He then states: “No one could anticipate the many varied, and perhaps unwise, provisions that might be written by the various States of the country. In this way their mere legislative action would compel this action of the Federal Government without the approval and even against the will of Congress. That proposal, on principle, is the extreme of State rights.” Note, however, that is saying the final phrase that O’Connor quotes, he is not endorsing the 21st Amendment on this ground—he is criticizing it! The problem with §2 is that it might be read to embody the “extreme of State rights” which is why he is opposed to it. Justice O’Connor, of course, reads out the context that Lea is criticizing §2 on this ground, suggesting that he was endorsing this reading. He notes, however, that this provision although illogical, is “unimportant in its practical effects.” Why? Because even with §2, Congress retained its power over interstate Commerce in alcohol.

Lea then goes on to add his criticisms of proposed §3 (discussed in earlier posts). He states, “The proposal that Congress shall have concurrent power with the States to regulate and prohibit the sale of intoxicating liquors to be drunk on the premises where sold, is the extreme of centralized power or Federal interference in State affairs. This provision would give the Congress power to enforce prohibition on a State against its will and also to provide regulatory provisions in favor of the liquor traffic in opposition to the laws of dry or semidry States.” He then adds the criticism I rehearsed earlier, “If there is anything to be learned from our experiences with Federal prohibition, it is the unwisdom o the Federal Government interfering in State affairs and forcing on unwilling States obnoxious sumptuary legislation. The Senate amendment in effect proposes to continue Federal interference with State affairs, injects new questions of Federal regulation, and retains he liquor problem in national politics for a generation to come.”

Overall, then, Lea’s comments make no mention of granting the states any new substantive constitutional powers to erect protectionist barriers against interstate commerce, but rather criticize §2 for giving federal power to enforce otherwise valid state laws. And like others, he criticizes §3 for retaining the real problem with Prohibition—the federal intervention in local affairs. Section 3, he observes, would essentially give the federal government a de facto police power to regulate all aspects of liquor sales. Under proposed §3, “This provision would give the Congress power to enforce prohibition on a State against its will and also to provide regulatory provisions in favor of the liquor traffic in opposition to the laws of dry or semidry States. The wildest friend of centralized government could scarcely approve of Congress enforcing the sale of liquors on dry States over the opposition of their laws and perhaps of their Constitution. I do not anticipate that this provision, if enacted, would in practice be so applied. The fact that such a power is seriously proposed to be placed in the Constitution should excite the opposition of all.” He adds, “It seems especially designed to preserve the obnoxious and unworkable features of Federal prohibition.”

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