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Proposed California Beer Tax -- A Constitutional Analysis:
A California Assemblyman has proposed a dramatic hike in the state beer tax:
  Joe Six-pack will have to pay a lot more to get his buzz on if Assemblyman Jim Beall has his way.
  The San Jose Democrat on Thursday proposed raising the beer tax by $1.80 per six-pack, or 30 cents per can or bottle. The current tax is 2 cents per can. That's an increase of about 1,500 percent.
  But is this proposed tax constitutional? I say, obviously not. The tax would be blatantly unconstitutional under the Due Process clause, the 21st Amendment, the 8th Amendment, the Privileges & Immunities clause, and the Dormant Commerce Clause. Recall that the time of the Framing of the Constitution, Benjamin Franklin accurately captured the American approach to beer when he stated that "Beer is proof that God loves us and wants us to be happy." And was not Samuel Adams both a brewer and a patriot, I ask you?

  Relatedly, I have it on good authority that Patrick Henry has been wrongly quoted all these years, and that his actual statement about the revolution was, "Give me Liberty Ale or give me death!" The same goes for Nathan Hale, aka Nathan 'Ale, who actually said, "I only regret that I have but one liver to lose for my country."

  Placing such an undue burden on Californians' fundamental rights to liberty and the pursuit of happiness could not be a greater affront to these principles. I for one am deeply disturbed that Assemblyman Beall is so completely ignorant of basic constitutional principles.

  UPDATE: It occurs to me that this law also infringes the Second Amendment's right to keep beer in your arms -- an individual right if there ever was one.
J.McFaul (mail) (www):

Benjamin Franklin accurately captured the American approach to beer when he stated that "Beer is proof that God loves us and wants us to be happy."



Clear First Amendment Free Exercise implications here.
4.14.2008 2:22am
John (mail):
I assume you were engaged in extensive testing to determine which beers to mention as you wrote this.

Well played, sir.
4.14.2008 2:26am
Gilbert (mail):
It also violates the takings clause by imposing a punitive tax (and therefore unwarranted under the harm principle) and destroying economic market value.
4.14.2008 2:26am
Displaced Midwesterner (mail):
The fact that this tax singles out beer, while leaving wine and spirits alone, clearly violates equal protection.
4.14.2008 2:39am
Bill Woods (mail):
It'd be a wonderful stimulus to the home-brew movement.

"And malt does more than Milton can, to justify God's ways to man."
4.14.2008 2:51am
alias:
Spoofing the blog commenters again, I see. You've preemptively eviscerated the dishonest arguments that are sure to come your way from people who disagree with you. Absolutely wiped the floor with those folks. Their arguments are complete nonsequiturs. Obviously. I think their rear ends are smarting. Jim Beall is OBVIOUSLY a PARTISAN HACK who can't read the Constitution for which true patriots (not that Tedy Bruschi guy I can't stand him) SPILLED BLOOD. LOLifIwasn'tSoAngry.

California must have its own version of the Boston Tea Party where it raids boats and dumps a bunch of beer in the ocean.
4.14.2008 2:57am
alias:
After posting, it occurs to me that you might actually be spoofing other academics. No snappy retort to that one.
4.14.2008 2:58am
Howard432 (www):
So why is the tobacco tax legal? The added taxes on gasoline? All other taxes on alcoholic products?
4.14.2008 3:01am
Joe Hiegel:
Somehow that reminds me: I think I owe Orin a beer.
4.14.2008 3:17am
ReaderY:
First they say "is, at best, facetious" -- and in 20 years or so they reverse and so hold.
4.14.2008 3:25am
Antinome (mail):
Judge Brown would be pleased.
4.14.2008 4:14am
Antinome (mail):
I should add, by the post not the proposed law.
4.14.2008 4:19am
Oren:
I'm not sure what's more shocking, OK's satire or this sincere lunacy.
4.14.2008 4:36am
Cornellian (mail):
Beer - the source of, and solution to all of life's problems


- Homer Simpson
4.14.2008 5:16am
Glenn W. Bowen (mail):

Joe Six-pack will have to pay a lot more to get his buzz on


we know Joe takes it with bitters.

did Obama write this?
4.14.2008 6:53am
Frater Plotter:
Jeez! As if good beer wasn't getting expensive enough in the California Republic -- 30¢ more per bottle of Lagunitas IPA, or AVBC Barney Flats Oatmeal Stout, or Stone Arrogant Bastard Ale? Come on, Jim, give us a break. Just levy the tax on foreign beers like Rogue.
4.14.2008 6:59am
Gary Anderson (mail):
Tip for Monday morning, Orin?

Best stick to the day job, my friend.

Or, "I'm sure it'd be funnier if we all quaffed a 6-pack or three."

Points for trying though, in showing your "everyday" beer humor at your age, and as a professional academic at that. (Something that's been passed down generationally, that way of life, no?)

It's retread humor, but in the right crowd like this one, you may just get somebody buying you a beer. Get it while you can, friend.
4.14.2008 8:39am
Curt Fischer:
Very nice Constitutional analysis Prof. Kerr. Let me approach this problem as a policy matter.

In recent years, many large clinicial studies have found that relative to teetotalers, moderate beer drinkers have a lower risk of heart attack, stroke, Alzheimer's disease, hypertension, diabeters, arthritis, bone fractures, and even the common cold. Moderate drinkers live longer on average than teetotalers, and it is obvious to even casual observers that they have more fun.

Isn't the proposal of Assemblyman Beall then a threat to the health and well-being of all Californians? In this time of a national health crisis, Assemblyman Beall proposes that the State steal the health of its people. Not in America, sir!

My proposal to address this challenge recognizes the role that beer has in promoting health. At the same time, it also recognizes that beer's effect is what doctors call "dose-dependent". At stratospheric levels of consumption, preliminary reports indicate that beer may become a health risk, leading to conditions such as nausea, poor memory, liver disease, and regret.

Therefore, Mr. Beall, here is the right way to tax beer:

1. The State of California subsidizes beer so that its citizens pay a net negative cost of $1 for each bottle of beer they buy, up to two bottles.

2. Beers after two bottles per day will have a tax of $1,000 per bottle.

3. To keep track of how many bottles each citizen has bought on a given day, the State will take its good citizens' word for it.

It's a win-win, if you ask me.
4.14.2008 9:10am
jim47:
Okay, so clearly you are mocking the commenters, but I'll bite:

All those aspects of the constitution you name would certainly be valid defense against a federal law that taxed alcohol only as a pretense to prohibiting it — not that $1.80 seems to qualify. At the state level, the 21st amendment clearly contemplates the ability of state governments to tax, regulate and prohibit alcohol. The only debate is the degree to which that power may even trump normal commerce clause and equal protection limitations (I found Justice Thomas's position in Granholm v. Heald to be fairly compelling).

NOW: For extra credit, someone who knows California's state constitution should repeat Orin's fake arguments using clauses from that document.
4.14.2008 9:50am
ChrisIowa (mail):
from my cold dead Hamms!
4.14.2008 10:20am
John e:
Homer said: "To beer, the cause, and solution, to all of life's problems."

I don't mean to be annoying, but when it comes to Simpsons quotes, I demand nothing less than accuracy.
4.14.2008 10:26am
glangston (mail):
I think legislator Beall is very competitive with this...
Other researchers have concluded that raising beer taxes not only minimizes drinking but reduces alcohol-associated problems such as broken families, venereal diseases, property damage, and birth defects caused by fetal alcohol syndrome," Beall's statement read.
Beer corporations continue to rake in profits. American’s biggest brewer, Anheuser-Busch, reported a net income of $2.1 billion in 2007, nearly 8 percent above the previous year; Molson Coors reported $507 million in revenue after taxes.
“As responsible corporate citizens, breweries should be willing to pay their fair share of the damage that alcohol wreaks on society,’’ Beall said




As wishful thinking this is pretty perfect.
4.14.2008 10:56am
theobromophile (www):
Now Californians will have to smuggle in beer from Mexico, along with absinthe and freon. Alternatively, beer drinkers will upgrade from Natty Light to Two Buck Chuck.
4.14.2008 11:03am
Houston Lawyer:
What they should propose instead is a $10.00 per bottle tax on wine, but that might hit too close to home with a certain class of Californians. Beer is the most democratic of drinks, enjoyed equally by Democrats, Republicans, Libertarians and others. Wine, on the other hand, is enjoyed primarily by the pretentious and should be taxed accordingly.
4.14.2008 11:13am
markm (mail):
Curt: Is there any limitation on the size of a "bottle"?

I can see it now - the guy with the 5 gallon can of Budweiser saying, "honest, officer, I'm still on my first one".
4.14.2008 11:28am
RainerK:
"It'd be a wonderful stimulus to the home-brew movement."

That can be dealt with. Watch for the legislative response:

- Licensing requirement for home-brewing.
- Proof of proficiency of operators. Can be attained by passing an exam or by minimum of 30 years experience.
- Several levels of taxation according to amount produced.
- Detailed requirements to ensure up-to-date sanitation.
- Assurance of access protection by minors.
- Regular inspection of facilities to ensure adherance to requirements.
- Quality control of products to ensure their safety.
- Regulation of ingredients, their acquisition through a monitored supply chain and their proper use.
- Development of secure control mechanisms for cradle-to-grave raw material and finished product disposition.
- Qualified testing by approved laboratories of products to determine adherence to prescribed standards as well as determination of consumer education information.
- Labeling requirements for the finished product containers.


The nation's law makers and regulators have their work cut out for them. What took the so long?
4.14.2008 11:29am
rarango (mail):
Those communists are going to have to pry my cold beer from warm hand--what kind of plot is this? First they come for your cigarettes, then they come for your guns, and then they come for your beer--wake up, patriots! The end is nigh
4.14.2008 11:36am
hojk (mail):
This will -- of course -- serve to tilt the market towards the more expensive brews as the mass market beer will be paying a higher proportional tax. See the historical discussion of taxing wine in War, Wine, and Taxes.
4.14.2008 11:47am
Wayne Jarvis:

Homer said: "To beer, the cause, and solution, to all of life's problems."

I don't mean to be annoying, but when it comes to Simpsons quotes, I demand nothing less than accuracy.


I think he said to alcohol, etc.
4.14.2008 11:55am
Kevin Murphy:
CA Alcoholic Beverage Tax PDF indicates that this tax has been raised twice since Prohibition ended, by 100% in 1959, and by 400% in 1991. It now stands at 20 cents/gallon, or about 2 cents per 12 oz can.

Since these previous tax increases (especially the 1991 one) seem to have withstood all challenges, it would seem that one is left arguing that while 400% is OK, 1400% would be too much -- on some Constitutional basis.
4.14.2008 12:25pm
New World Dan (www):
I fail to see how the dormant commerce clause would be implicated unless out of state beers were being taxed at a higher rate. Then again, you've got Sierra Nevada out there, so you're set on that front while appeals progress.

In any event, I think this is first and foremost a Ninth amendment violation if ever there were one.
4.14.2008 12:35pm
Tony Tutins (mail):
Can somebody find out Jim Beall's hobbies and interests? I would like to propose several extortionate taxes on each and every one of them.

Homebrewers should raise a glass to the memory of late Senator Alan Cranston (D-California) who introduced legislation decriminalizing homebrewing in 1978. (Home winemaking had been legal since the start of Prohibition.) Cranston's role as one of the Keating Five should be forgiven for this, in my opinion.

Further, because most ingredients used for brewing are considered to be food, they go untaxed in many states, providing truly the Beverage of Liberty.
4.14.2008 12:59pm
rarango (mail):
Well said, Tony Tutins!--additionally I NEVER turn down an opportunity to raise a glass.
4.14.2008 1:52pm
Thorley Winston (mail) (www):


The fact that this tax singles out beer, while leaving wine and spirits alone, clearly violates equal protection.



Life imitates art.
4.14.2008 2:15pm
Oren:
CA Alcoholic Beverage Tax PDF indicates that this tax has been raised twice since Prohibition ended, by 100% in 1959, and by 400% in 1991. It now stands at 20 cents/gallon, or about 2 cents per 12 oz can.
Adjusted for real values, that means that the tax has never been lower and the adjustment would put it back in line, historically.

I would be in favor of an amendment (Federally and in the Several States) mandating that the use of any fixed dollar amount be denominated in real, not nominal dollars. That would do a lot to remedy this sort of slide and lurch that we get.
4.14.2008 2:19pm
Smokey:
“As responsible corporate citizens, breweries should be willing to pay their fair share of the damage that alcohol wreaks on society,’’ Beall said.
Then what about the damage that big government nanny staters like Beall wreak on society? An additional tax of 30 cents per dollar of income should be assessed on Beall. See how he likes another layer of tax.
4.14.2008 2:31pm
Krin Oerr (mail):
I would like to know how Mr. Kerr can be so certain of his position. On the one hand, if the tax is intended to be reasonable in light of Fourth Amendment precedent, including U.S. v Schnederbocker, 6352 U.S. 981 (1632), we would never be able to search a person to know whether they have imbibed any beer and thus are liable to pay the tax. On the other hand, Marty Lederman says that the Bush administration opposes the tax, and any policy the Bush Administration opposes is obviously the correct and best policy and therefore Constitutional. But at this point, until we are presented with more evidence, I don't think anybody knows enough about the tax to be able to come to any conclusions about its Constitutionality. Therefore, the poster, Mr. Kerr, is beating a dead horse with an argument I do not understand.

Mr. Kerr's argument suffers from having an excess of certainty about the world. It sounds like a Bush Administration argument in its certitude. I take a different approach - nothing is ever certain.

Care to explain your argument further, Mr. Kerr?
4.14.2008 2:33pm
Richard A. (mail):
On the health properties of beer: Below is the link to a video of a 101-year-old Englishman who just finished running his first marathon and who drinks no water, but eight pints of ale a day. Beer is an ideal fat-free food.

http://www.msnbc.msn.com/id/21134540/vp/24098080#24098080
4.14.2008 2:34pm
wooga:
Homer said: "To beer, the cause, and solution, to all of life's problems."

I don't mean to be annoying, but when it comes to Simpsons quotes, I demand nothing less than accuracy.
I think he said to alcohol, etc.


And it was "the cause of, and solution to, all of life's problems." Note also the commas - absolutely key to understand the proper delivery. You need to pause after 'of' and 'to'. Never try to claim superior "Simpson's accuracy" without being accurate yourself!

Personally, I keep remembering it as "Beer" not "alcohol," but presumably that's because he was referring to beer at the time. But I'm positive on the "of" and comma corrections.
4.14.2008 3:07pm
PersonFromPorlock:
OK, Looking at your update it occurs to me that laws forbidding CCW in bars may violate the Right to Keep and Beer Arms.
4.14.2008 3:20pm
Tony Tutins (mail):
Ah, the Dormant Commerce Clause.

The Constitution authorizes Congress to regulate commerce among the several states. Under the Supremacy clause, the laws of the United States made pursuant to the Constitution will be the Supreme Law of the Land, meaning that federal law "trumps" or preempts any state law that might be in conflict with it.
Applying the doctrine of implied preemption to the Commerce Clause yields the doctrine of the Dormant Commerce Clause, which prevents states from enacting laws that would impede the flow of commerce among the states. There are three types of implied preemption: Conflicts preemption (when it is impossible to comply with both the federal statute and the state or local law); Preemption because state law impedes the achievement of the objective of a federal statute; and preemption because federal law occupies the field (here the intent of Congress must have been to make federal law exclusive in that area).
Congress announced its intent to preempt state laws regulating alcoholic beverages when it passed the Eighteenth Amendment, which prohibited 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"

In furtherance of the 18th Amendment, Congress passed the Volstead Act, which defined "intoxicating liquors" as having an alcohol limit in excess of one-half of 1 percent, apparently based on Internal Revenue Service distinctions made for the purpose of taxation. But, as time went on, scientific research showed that this limit was far too low, resulting in the enactment of the Cullen-Harrison bill, which raised the allowable alcohol limit to 3.2 percent. Because Congress changed the definition of intoxicating liquor, making "3.2 beer" non-intoxicating, its distribution and sale in some states cannot be regulated under the State laws which are intended to control commerce in "intoxicating liquors." Thus 3.2 beer cannot be taxed more than any other non-intoxicating beverage, be it water or fruit juice, without conflicting with Federal law.

Though the Twenty-First Amendment repealed the Eighteenth, it did not change the definition of intoxicating liquors.

Thus Beall's bleating that "The people who use alcohol should pay for part of the cost to society" is pointless, because as a non-intoxicating beverage, 3.2 beer has no deleterious effect on society. Further, Beall's assertion that he's targeting beer because his research showed that California undertaxes brew relative to other states, which he said isn't the case with wine and spirits, is completely off the point, because wine at 12% alcohol, and spirits at 40% alcohol, are indeed intoxicating liquors, by Federal law.

To review: Federal law preempts this state law because Congress has occupied the field of definition of alcohol content of intoxicating liquors. Further, it is impossible for 3.2 beer to simultaneously be intoxicating (Beall's law) and non-intoxicating (Federal law) and Congress's purpose behind enacting the Cullen-Harrison bill was clearly to facilitate consumption of 3.2 beer.

Prof. Kerr, please accept my flawed analysis as a stimulus to your further work in this area.
4.14.2008 3:31pm
ClosetLibertarian (mail):
It's obviously unconstitutional on the grounds that it would hurt me personally. Beer is the pursuit of happiness.

That said the percentage increase in irreverent. Any time something is taxed for the first time the increase in infinite. This is just the increase in beer tax, in addition to the sales tax. The total burden may be unacceptable but the increase doesn't matter.

The effect will be more patients seeking medical marijuana.
4.14.2008 3:51pm
mischief (mail):

In recent years, many large clinicial studies have found that relative to teetotalers, moderate beer drinkers have a lower risk of heart attack, stroke, Alzheimer's disease, hypertension, diabeters, arthritis, bone fractures, and even the common cold. Moderate drinkers live longer on average than teetotalers, and it is obvious to even casual observers that they have more fun.


Unfortunately, all those health benefits stem from -- lumping together two groups of teetotalers, namely those who never drank and those who used to drink heavily and now abstain.

Those who never drank do better than the moderates, who do better than the used-to-drink-heavily, who do better than the heavy drinkers.

sorry!
4.14.2008 3:53pm
Dan Hamilton:
The Vast Right Wing Conspericty strikes again.

We were able to fool this Democrat simpleton into perposing this tax increase.

When the Democrats pass it because it is a GOOD idea to save those poor ignorant Beer drinkers. We wine drinkers know how to drink so we don't need a tax increase.

We will finally break the strangle hold of the Democrats on California political offices. The Republicans will win victory after victory in elections all over California. All because of a tax on Beer. What a plan!
4.14.2008 4:37pm
Tony Tutins (mail):

Those who never drank do better than the moderates

Obvious LDS propaganda -- let's see some data.

My grandfather who had a beer or a shot after work, every day, lived to be 92.
4.14.2008 4:49pm
glangston (mail):
Can somebody find out Jim Beall's hobbies and interests? I would like to propose several extortionate taxes on each and every one of them


Googling up an image of Beall you can clearly see he wouldn't put up with a tax of food. He's a big guy, not used to missing any meals. I'd bet his doctor would propose a tax on every bite he takes.
4.14.2008 5:53pm
mischief (mail):

Obvious LDS propaganda -- let's see some data.

My grandfather who had a beer or a shot after work, every day, lived to be 92.


The plural of "anecdote" is not "data."
4.14.2008 5:54pm
NickM (mail) (www):
No comments so far on how this is a discriminatory attempt to interfere with the right to procreate of the appearance-challenged?

Nick
4.14.2008 8:41pm
wooga:

Those who never drank do better than the moderates, who do better than the used-to-drink-heavily, who do better than the heavy drinkers.

I believe your assumption is incorrect. The health benefits of the "one glass a day" behavior are, I believe, agreed to be largely related to stress reduction and the physical depressant effect (and other stuff which I think is interchangeable with various other dietary options). One glass a day does no damage to the body, but provides a health benefit. How could 'never drinking' be a healthier lifestyle than 'once a day' drinking?

Moreover, the "former heavy drinker and now teetotaler" would show things like liver damage, but the myriad of other health problems that appear in the 'teetotaler' category would have no relation to a past consumption problem.

In other words, I don't see how the inclusion of some former bingers within the teetotaler category would be a significant enough factor to throw off the overwhelming data showing moderate drinking to be superior to no drinking. As you made the initial assertion that total abstinence is superior to moderate drinking, I request you provide some support for that assertion.
4.14.2008 8:53pm
Tony Tutins (mail):
Those who never drank do better than the moderates
The plural of "anecdote" is not "data."


One counter-example is enough to disprove a generalization. Unless your teetotalers all reach the century mark, I think I win here.
4.14.2008 9:52pm
mischief (mail):

One counter-example is enough to disprove a generalization. Unless your teetotalers all reach the century mark, I think I win here.


All?

I'm not responsible for an "all" of your own interpolation.
4.14.2008 10:29pm
mischief (mail):

How could 'never drinking' be a healthier lifestyle than 'once a day' drinking?


You beg the question.

People worked backward from the studies to the benefits.


Moreover, the "former heavy drinker and now teetotaler" would show things like liver damage, but the myriad of other health problems that appear in the 'teetotaler' category would have no relation to a past consumption problem.


Exactly!

Or current consumption.


In other words, I don't see how the inclusion of some former bingers within the teetotaler category would be a significant enough factor to throw off the overwhelming data showing moderate drinking to be superior to no drinking.
As you made the initial assertion that total abstinence is superior to moderate drinking, I request you provide some support for that assertion.


Says someone who provided no support at all for his own assertion that "some former bingers" were not enough to throw off the data. You have any evidence at all for them being few enough to be dismissed.

And -- ta da! -- those that actually looked found otherwise.

"The team found only seven studies that included only long-term non-drinkers in the "abstainers" group. The results of the seven studies showed no reduction in risk of death among the moderate drinkers compared with abstainers. When the researchers combined the data from these studies, they showed that it was possible to perform new analyses that appeared to show a protective effect of moderate drinking—but only when they deliberately included the error of combining long-term abstainers with people who had cut down or quit drinking more recently."

http://pub.ucsf.edu/newsservices/releases/200603277

Oh, well, I thought the non-drinkers were better off. But then, you thought they were worse off. And I remembered why you were off.

Your "overwhelming data" consists of the overwhelmingly large proportion of studies that made this error.
4.14.2008 10:39pm
mtl (mail):
Ben Franklin also composed this witty ditty:

The Antediluvians were all very sober,
For they had no Wine and the brewed no October;
All wicked, bad Livers, on Mischief still thinking,
For there can't be good Living where there is not good Drinking,

Derry down—

'Twas honest old Noah first planted the Vine,
And mended his morals by drinking its Wine;
And thenceforth justly the drinking of Water decry'd
For he knew that all Mankind by drinking it dy'd.

Derry down—

From this Piece of History plainly we find
That Water's good neither for Body or Mind;
That Virtue and Safety in Wine-bibbing's found
While all that drink Water deserve to be drown'd.

Derry down

So For Safety and Honesty put the Glass round.


In short, he'd be opposed to this tax.
4.15.2008 12:59pm
mojo (mail):
Clearly a violation of equal protection, since they don't envisage taxing the Chardonnay drinkers as well. Pure elitism, if you ask me.
4.15.2008 1:56pm
JoelP (mail):
Mild-moderate alcohol use improves cardiovascular mortality, mostly by increasing HDL and reducing blood sugars.
4.15.2008 4:05pm
Casual Peruser:
That's an utterance of a penumbra if I've ever heard one.
4.15.2008 11:48pm
Tony Tutins (mail):

I'm not responsible for an "all" of your own interpolation.

Based on this input, I fixed mischief's assertion:

Some of those who never drank do as well as the moderates.
4.16.2008 6:12pm