Modern-day prohibitionists putting a cork in free trade

  • Froma Harrop
  • Saturday, June 5, 2004 9:00pm
  • Opinion

I can ship home potatoes from Idaho, steaks from Nebraska and barbecue sauce from Texas. But I cannot order a case of Zinfandel from California or Chardonnay from Washington state. That is a no-no thanks to the 21st Amendment, which ended Prohibition but also put control of alcohol sales in the hands of the states.

Over 20 states, including my own Rhode Island, bar their inmates from directly ordering wine from the vineyards that make it. They can’t order it by mail. They can’t order it online. They must go to stores, which rarely feature the small producers they visited on their tour of wine country. Such restrictions rankle wine lovers and, even more so, major wine-producing states.

Prohibition is now 70 years in the rear-view mirror, but its spirit lives on in our many laws. Both nanny-state liberals and temperance-minded conservatives regard a glass of Chablis as a drug to be lumped in with heroin and crack cocaine. And that’s why consumers everywhere can order a ham from Virginia but not a Merlot from North Carolina.

This inequity has not gone unchallenged. The Supreme Court is now considering whether states can indeed block direct shipments of wine from outside their borders. And what makes this case extra juicy is that two leading lights of conservative thought will be duking it out.

Robert Bork, the one-time Supreme Court nominee, is supporting the status quo in the name of states’ rights. His clients include beverage wholesalers, who would obviously lose some business if people could order their wine directly.

Representing the wineries, wine lovers and justice is Kenneth W. Starr, former special prosecutor and foe of Bill Clinton. Starr argues that restrictions on interstate shipments of wine violate the commerce clause of the Constitution.

Anyone who thinks states forbid direct shipments of wine to protect their people from demon drink need only look at the crowning hypocrisy of New York’s law. New Yorkers may order bottles directly from wineries within their state but not from beyond its borders.

This is the sort of protectionism the commerce clause seeks to stamp out. Imagine New Mexico letting its people send away for hot sauce made in the Land of Enchantment but not in Louisiana.

One does not wish to overdramatize the plight of wine connoisseurs, but it does seem unfair to single out alcoholic beverages, especially wine, as the one thing you can’t directly order from another state. People may buy pornography, carving knives, pit bulls and handcuffs from out of state. Why not a bottle of Syrah?

We know why. Because wine is different. Wine is booze.

And Bork can point to a lower-court decision that backs this mentality. The 7th U.S. Circuit Court of Appeals in Chicago decided in 2001 that Indiana had the right to prohibit direct shipping from other states. (But Indiana lets its own wineries send their products outside the state. This glaring inconsistency is of no consequence, however: States that permit direct orders also insist on reciprocal rights: that is, the originating state must also allow out-of-state shipments.)

Starr can wave another lower-court decision that says just the opposite. Citing the commerce clause, the 6th U.S. Circuit Court of Appeals in Cincinnati last year rejected a Michigan law that forbids direct shipments from out-of-state wineries. This is one of the three cases that the Supreme Court is now hearing on the subject. About 36 states, all wanting to retain their patchwork of restrictions, are supporting Michigan’s appeal.

But let’s drop this Prohibitionist bickering and get to an important principle: Adults should be able to buy a legal agricultural product directly from the grower, and it should matter not whether it’s an orange from Florida or Pinot Noir from Oregon. To say that they cannot defies both the commerce clause and common sense.

Froma Harrop is a Providence Journal columnist. Contact her by writing to fharrop@projo.com.

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