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November 29, 2004

Wine and States Rights

It's really hard to take seriously the idea of "federalism" -- the reservation of power to the states -- when a case like the following is even in doubt.

The rightwing of the Supreme Court has found that the federal government lacks the power to stop rape of women (the Morrison decision), to ban guns near schools (Lopez), or to enforce a range of civil rights laws on states (Kimel, Garrett) -- all without any constitutional provisions reserving power over such issues to state governments, and despite a rather clear statement in the 14th Amendment giving Congress power to enforce equal protection of its citizens.

Yet the Supreme Court is hearing a case on whether states can enforce prohibitions on mail order importation of wine into their states. Now, states normally can't enact protectionist economic policies, but the constitutional amendment abolishing prohibition in 1933 was quite clear on the power of states to ban importation of alcohol into their states:

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 hereby prohibited.

It's hard to find a clearer provision in the Constitution on federalism issues, but the fact that this case is even in doubt just confirms the old adage-- the Constitution is whatever the Courts says it is. There is no "original intent" or "strict constructionism," since any textual language in the Constitution can and is reinterpreted for whatever ideology a Justice may want to support.

Posted by Nathan at November 29, 2004 05:55 AM