We've had an entire series of articles up recently on Prohibition, as any reader here knows, as today marks the centennial of Wyoming's law banning booze coming into effect.
In our made up myths on Prohibition, one popular one here is that Wyoming went into it kicking and screaming. Far from it. Wyoming voted itself into Prohibition in advance of the Federal requirement to get there. It was nonsensical in a way, as the passage of the 18th Amendment made it inevitable anyhow. . . although as we all know, that inevitability was rather temporary. At any rate, Wyoming could have just waited for the Volstead Act to cause Federal Prohibition to become permanent, but it chose to get there first, and deeper, than the Federal law would require.
Even at that, Wyoming pushed the Volstead Act over the top, as the deciding vote for that law came by way of Francis E. Warren, who proudly took that act that determined that the US would go dry in 1920.
So what's the point here in the modern context?
Just this.
The United States Supreme Court has never, at least up until now, had a problem with the individual states prohibiting or allowing various substances. There were dry states prior to Prohibition coming into effect, and Wyoming would be one of them. There were wet states right up until the Volstead Act came into full effect. By the same token, there are states that ban marijuana, on the state level, today, and those which allow it. That's always been the state of the law and it remains the presumed state of the law today.
Indeed, this fact allowed Wyoming's state Prohibition to become an odd sort of success . . .in its gradual repeal.
When the 18th Amendment was repealed by the 21st on December 5, 1933, by way of the vote of the State of Utah's delegees to a constitutional convention that pushed the 21st Amendment over the top, Wyoming stepped out of Prohibition in stages, putting in place a new system of heavily regulated alcohol sales and direct state involvement. Similar processes were put in place all over the United States.
And now the United States Supreme Court has upset the apple car by way of its ruling a new case striking down Tennessee's two year residence requirement in order to hold a liquor license.
The decision is the wrong one.
It's hard to see where such decisions go, but this decision fits into a series of new decisions in which the United States Supreme Court is becoming, once again, hyperactive in asserting Federal dominance over everything, which is a bad trend.
There's no real reason to suppose that that there's any Constitutional protection to alcohol dealers who wish to operate across state lines. Yes, yes, we know the Commerce Clause and all of that, but for eons the law has supposed that on certain topics states have been free to regulate, and this is one of them. If state's can be completely dry, they can certainly impose heavy restrictions on licensing dealers to sell and distribute alcohol.
And not just alcohol. At one time licensing requirements that featured absolute residency were common for all sorts of activities that involve an element of risk. It was common (and also stricken down) for states to impose residence requirement for practicing law, for example.
Beyond that, there are an entire series of areas which the United States Supreme Court previously maintained were really state matters entirely. Defining marriage was one, for example. Now that's gone by the wayside with Obergefell.
At some point the net result of all this is a sort of super-libertarian concept of everything. States must not impose any local requirements on anything, it would seem, save for one certain thing we'll deal with in a moment, as that impedes . . . well it impedes. No matter if states wish to impede. They can't.
And that's not so much a Constitutional view, as a libertarian view of the world. Uniformity of regulation and law through its absence, more or less.
Except in political matters. As we've also seen from this session, the one area a legislature can act is in political boundaries. Oddly, that's something that the Constitution does address in requiring the states to have a "republican form of government". Gerrymandering, the common name for messing with those boundaries, defeats that.
The Court is comfortable allowing that to go forward, however.
For Wyoming the question now becomes what the state can do with certain liquor related practices. Wyoming allows out of state liquor dealers, so that's not an issue, but they must have an instate presence. Wine vendors have violated this in the past with direct sales of wine. Beer vendors started to, and about at that point the state clamped down and reminded everyone that you can't ship wine through the mail to end users and you can't have wine marketing parties on the model of Tupperware parties and the like.
Or can you?
Well, it does impede interstate commerce and the wine industry has threatened to take it on.
All of which gets back to something else. Local requirements may not be the most efficient things in the world, but they do reflect the local. There's something to be said for that.
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