Amazingly, Justice O’Connor next turns to proposed §3, and states that the decision to delete proposed §3 demonstrates that §2 was intended to give plenary power to the states over interstate commerce. I have explained previously why this reading of proposed §3 is incorrect. Here, therefore, I will limit myself to explaining why Justice O’Connor’s interpretation of the relevant legislative history doesn’t support her view.
She writes, “When the Senate began its deliberations on the Twenty-first Amendment, the proposed Amendment included a § 3 not present in the adopted Amendment. This section granted the Federal Government concurrent authority over some limited aspects of the commerce of liquor.” As noted previously, her characterization of §3 as giving the federal government control over “some limited aspects of the commerce of liquor” is blatantly incorrect. As Congressman Lea himself states—in the paragraph of his speech immediately following the “extreme of State rights” passage—§3 was NOT thought to be a “limited” provision. Instead, §3 struck at the very heart of the problem with Prohibition—the unworkable system of concurrent authority over local affairs governing liquor, and the fear that the federal government could actually reimpose Prohibition or otherwise meddle in local affairs. The purpose of the 21st Amendment, to refresh the reader’s memory, was to reinstate to the states their local police power regarding alcohol, not to give them new powers over interstate commerce. So §3 was not by any means a minor or limited power, it undermined the central purpose of §2.
We then turn to Justice O’Connor’s key argument, the comments of Senator Blaine. “Even Senator Blaine, the Chairman of the Senate Subcommittee that had held hearings on the proposed Amendment, opposed the limited grant of authority to the Federal Government in § 3. According to Senator Blaine, when the Federal Government was organized by the Constitution the States had `surrendered control over and regulation of interstate commerce.’ 76 Cong.Rec. 4141 (1933). He viewed § 2 of the Amendment as a restoration of the power surrendered by the States when they joined the Union. Section 2 `restor[ed] to the States, in effect, the right to regulate commerce respecting a single commodity–namely, intoxicating liquor.’ Ibid. In his view, the grant of authority to Congress in § 3 undercut the import of § 2: `Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment.’ Id., at 4143.”
Note several points here. First, although Justice O’Connor introduces Senator Blaine as the Chair of the Senate Subcommittee that had held hearings on the Amendment, he specifically notes in the moving to his interpretation of §3 that he is giving his “own personal viewpoint,” not that of the Subcommittee. It seems obvious and under normal circumstances one would think it need not be expressly stated, but if Blaine is expressly and clearly drawing a distinction between his “personal viewpoint” and that of the committee—doesn’t that mean it is obvious that his “personal viewpoint” is different from that of the committee. Oddly, Justice O’Connor seems to believe that in distinguishing his personal viewpoint from that of the committee, somehow he is actually speaking for the committee.
More importantly, Justice O’Connor again loses the context of Blaine’s remarks. A key exchange between Blaine and Wagner, which I quoted in an earlier post, color’s the whole tenor of Blaine’s remarks. Again to quote it:
SEN. BLAINE: “Then came an amendment to the Wilson Act known as the Webb-Kenyon Act…. The language of the Webb-Kenyon Act was designed to give the State in effect power of regulation over intoxicating liquor from the time it actually entered the confines of the State….”
SEN. WAGNER: “Mr. President, will the Senator yield?”
SEN. BLAINE: “I see my able friend from New York shaking his head. I yield to him.”
SEN. WAGNER: “I do not want to enter into a controversy, because it really is not very important, but I do not think the Senator meant to say that by this act [Webb-Kenyon] Congress delegated to the States the power to regulate interstate commerce; Congress itself regulated interstate commerce to the point of removing all immunities of liquor in interstate commerce.”
SEN. BLAINE: “I think the Senator. I think he has given the correct statement of the doctrine. My understanding of the question was identically the same–that it was the action of the Congress of the United States in regulating intoxicating liquor that protected the dry State within the terms of the law passed by the Congress.”
As this clarifying exchange indicates, Blaine did not intend to state that the states were being given the power to regulate interstate commerce, although his loose phrasing suggests that. Rather, Congress retained the power over interstate Commerce, and §2 simply constitutionalized Congress’s exercise of its Commerce Clause authority to allow states to treat domestic and interstate liquor equally.
Moreover, Blaine places this entire debate over the 21st Amendment as the culmination of the long history that I have described in earlier posts. He summarizes the history starting with the Wilson Act, and the problem with Rhodes v. Iowa, where the Supreme Court held that the law did not prohibit interstate importation for personal use. Then Webb-Kenyon and the experience with Clark distilling. Then further modifications to Webb-Kenyon to tighten other minor holes in the law, leading to the present day of political and constitutional uncertainty of the states in enforcing their powers to remain dry. As he makes clear, the 21st Amendment is merely the culmination of this process, and an effort to reassure dry states by constitutionalizing this prior history.
Following his recitation of all of this historical progress Blaine then goes on to note the tenuous constitutional and political foundation of Webb-Kenyon (described in an earlier post) and adds, “In the case of Clark against Maryland Railway Co. there was a divided opinion. There has been a divided opinion in respect to the earlier cases and that division of opinion seems to have come down to a very late day. So to assure the so-called dry States against the importation of intoxicating liquor into those States, it is proposed to write permanently into the Constitution a prohibition along that line. Mr. President, the pending proposal will give the State that guarantee.” He then states the passage that O’Connor quotes about restoring liquor to its pre-Constitutional status, but in so doing he uses the same language that Wagner clarified a moment ago, that §2 would “in effect” give the States power over interstate commerce in liquor—which, as he explained then, “in effect” meant that Congress was exercising its power to help the states enforce their laws.
And note his concluding passage, “I am opposed to the dry States interfering with the so-called wet States in connection with this question of intoxicating liquors; and so, by the same token, I am willing to grant to the dry States full measure of protection, and thus prohibit the wet States from interfering in their internal affairs respecting the control of intoxicating liquors.” This is the key passage—as Blaine clearly states, §2 relates to returning to the states control over the “internal affairs.”
Finally, Blaine’s his “personal viewpoint” on which O’Connor relies seems consistent with what has been said so far. He states, “Mr. President, my own personal viewpoint upon section 3 is that it is contrary to section 2 of the resolution. I am now endeavoring to give my personal views. The purpose of section 2 is to restore to the States by constitutional amendment absolute control in effect over interstate commerce affecting intoxicating liquors which enter the confines of the States. The State under section 2 may enact certain laws on intoxicating liquors, and section 2 at once gives such laws effect. Thus the States are granted larger power in effect and are given greater protection, while under section 3 the proposal is to take away from the States the powers that the States would have in the absence of the eighteenth amendment.”
But O’Connor ignores the remainder of Blaine’s remarks on this point. Blaine states, “The eighteenth amendment is an inflexible police regulation which might be appropriate in a municipal ordinance in those sections of our country where the people desire a bone-dry local regime. The eighteenth amendment does not give the Congress a general grant of power to regulate. It is strictly a prohibition, a mandate. It is specifically a prohibitive provision of the Constitution. Surely, Mr. President, it was never designed that our Constitution would be a compilation of local ordinances regulating the lives the customs, and the habits of our people. But that is exactly the character of the eighteenth amendment. It has no place in the Constitution.” He then goes on to add that he would support any and all versions of sections 2 or 3 of the Constitution, so long as the final result was the repeal of Prohibition. “My object is to take the eighteenth amendment out of the Constitution.” 76 Cong. Rec. 4143-44.
It is thus clear from Blaine’s remarks considered in context that he, like everyone else, understood the purpose of the 21st Amendment to be to repeal the 18th Amendment and thereby to restore the pre-18th Amendment constitutional balance, while constitutionalizing the Wilson and Webb-Kenyon Acts to provide assurance to the dry states. There is no indication that he specifically meant to repeal the nondiscrimination principle that was included in the Wilson and Webb-Kenyon Acts in enacting the 21st Amendment. Indeed, as Wagner clarified with Blaine, Blaine recognized that those acts were an act of the Congressional commerce clause authority, not a ceding of that authority to the states.
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