A private citizen can violate the Constitution in two ways. The first is by enslaving another person, an atrocious act that should be proscribed by the highest law in the land. The second is by transporting alcohol across a state line in violation of the laws of that state. The two actions are hardly of the same magnitude.

The history of alcohol regulation has been a litany of failed attempts–on both the state and federal levels. Each new layer of legislation created additional problems. Most are familiar with the infamy of Prohibition, the federal ban on the manufacture or sale of alcohol repealed by the Twenty-First Amendment. Few, however, realize post-Prohibition state bans on the sale of alcohol, ostensibly under power granted by the Twenty-First Amendment, create a web of regulation that effectively instituted a new prohibition–one on out-of-state alcohol. Fueled by the increasing popularity of wine tourism and online shopping, consumers have begun to notice the lack of availability in their local stores. This awareness has sparked an onslaught of consumer activism, energized by online advocacy groups. States, however, have staunchly held on to their convoluted regulation schemes with the strong support of wholesalers, a powerful industry group which benefits significantly from the current mandated distribution system. The result is an on-going trade war with consumers and producers on one side and states and wholesalers on the other.

This Note argues that the Twenty-First Amendment has been distorted and stretched to an impermissible extreme and advocates a reexamination of alcohol regulation in the United States. It begins with an exploration of the legislative and judicial historical backgrounds of the regulation of intoxicating liquors. This Note next provides an overview of the current regulatory scheme for the distribution of alcohol. It then analyzes a proposed ulterior motive for this patchwork of laws and reexamines the statutory and constitutional language that allegedly supports the current regulation. Finally, this Note proposes various remedies to this maze of state laws preventing free trade and burdening the economy.

Note Author: Rachel Perkins

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