One more point on the dissent of Justice Abraham Simpson Stevens in the wine case--his dissent is truly one of the more idiosyncratic opinions I recall reading.
Is that me and my colleagues at the FTC he has in mind in referring to those youngins engaged in this newfangled policy analysis?
Today many Americans, paricularly those members of the yonger generations who make policy decisions, regard alcohol as an ordinary article of commerce, subject to substantially the same market and legal controls as other consumer products.
Oh these kids today with their fancy wines and "rock and roll" music.... In my day we didn't have no "Merlot" or "Pinot Gris"--we drank Heilemann's and, by george, we liked it!
He goes on to add a canon of law with which I am not familiar:
The views of judges who lived through the debates that led to the ratification of those Amendments are entitled to special deference. Foremost among them was Justice Brandeis, whose understanding of a State's right to discriminate in its regulation of out-of-state alcohol could not have been clearer.
Is this a real canon of law? He cites no authority for this novel "respect your elders" canon of construction, so I am not sure what to make of it. Does it apply to statutes as well? If a judge lived through the enactment of the Clean Air Act, does that mean he is entitled to greater deference because he remembers Pittsburgh in the 1950s?
But there is another, more important reason, why Brandeis's recollections of the 21st Amendment are largely irrelevant. In the same opinion that Stevens points to, the Young's Market case, Brandeis also expresses the view that the 21st Amendment also made the 14th Amendment's Equal Protection Clause inapplicable to alcohol regulations. Stevens notes that many of the state laws enacted after the 21st Amendment were discriminatory--but they also violated the 1st Amendment, Due Process Clause, and other assorted provisions of the Constitution. So unless Stevens is willing to say that states can permit sale of alcohol only to whites and not to blacks, or to prohibit the sale of only sacramental or kosher wine, it is hard to see that this particular argument gets him very far.
A very peculiar opinion.