Pop a Cork
It occurs to me that the role of judges today is to explain why the Constitution doesn't mean what it says.
Example: Section 2 of the 21st Amendment, which repealed prohibition, contains 31 words. They're pretty clear, modern English words, having been passed by Congress in 1933: "The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is prohibited."
Now, if you ask me or any other non-lawyer off the street, "How does the state-law provision of the 21st Amendment mesh with the prohibition on state restraints on trade spelled out in the Commerce clause?" (that's a joke, but I see you're not laughing!), I'd have to say, "Well, the Congress and the States in 1933 were surely aware of the Commerce clause. On the face of it, Amendment 21 Section 2 gives states the power to outlaw the sale of another state's products within its borders. So I'd have to say that Congress and the States exempted intoxicating liquors from the laws that govern trade of other products."
Against the 31 words in A21-S2, Justice Kennedy used 30 pages to explain why the Amendment doesn't mean what it says, and why the courts have been wrong in their application of it for the last 72 years.
From the standpoint of outcome, a great decision. Pop a cork on that California wine delivered directly to your door. And drink a toast to the late, great Constitution.
***** Todd Zywicki has lots of links over at volokh.com (and congratulations on that Dartmouth gig, btw) ... Bainbridge called it, but what does he care? He lives in California! ... And SCOTUSblog has lots of links, too ...
Example: Section 2 of the 21st Amendment, which repealed prohibition, contains 31 words. They're pretty clear, modern English words, having been passed by Congress in 1933: "The transportation or importation into any State, Territory, or Possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is prohibited."
Now, if you ask me or any other non-lawyer off the street, "How does the state-law provision of the 21st Amendment mesh with the prohibition on state restraints on trade spelled out in the Commerce clause?" (that's a joke, but I see you're not laughing!), I'd have to say, "Well, the Congress and the States in 1933 were surely aware of the Commerce clause. On the face of it, Amendment 21 Section 2 gives states the power to outlaw the sale of another state's products within its borders. So I'd have to say that Congress and the States exempted intoxicating liquors from the laws that govern trade of other products."
Against the 31 words in A21-S2, Justice Kennedy used 30 pages to explain why the Amendment doesn't mean what it says, and why the courts have been wrong in their application of it for the last 72 years.
From the standpoint of outcome, a great decision. Pop a cork on that California wine delivered directly to your door. And drink a toast to the late, great Constitution.
posted by Karl Maher at 7:33 AM
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