Carl Kanowsky: Eliot Ness sure left us a mess

Carl Kanowsky is an attorney, a fledgling baker, an enthusiastic cook and an expert wine drinker.
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Both Robert Stack and Kevin Costner portrayed Eliot Ness, the epitome of the federal agent from the “Prohibition era.” 

Ness famously battled gangster Al Capone in an effort to shut down Capone’s racketeering and bootlegging operations.

Bootlegging, of course, refers to the illegal production and sale of liquor, particularly during the years of Prohibition (1920-33). 

Prohibition resulted from years-long campaigns to stop the production and sale of liquor of any type. Several states had enacted their own versions of Prohibition before it became federal law in the form of the 18th Amendment.

It lasted about 14 years and was more honored in its breach than in its adherence. Frustrated by its utter ineffectiveness despite folks like Eliot Ness, the 21st Amendment was adopted to repeal Prohibition.

But, concerned that several states still harbored strong sentiments in favor of a statewide control over the sale of booze, Section 2 to the 21st Amendment was added: “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.” 

The effect was that there could be dry (alcohol-free, that is) counties or cities within states.

That, in and of itself, was fine. But then states began trying to protect their homegrown alcohol-related businesses, such as wineries, distributors, retailers, restaurants, etc. States generally rationalized these restrictions as looking out for the health and welfare of citizens. In the past few years, courts have grown skeptical of these efforts.

In 2005, the U.S. Supreme Court decided Granholm v. Heald. Essentially, New York and Michigan allowed in-state wineries to ship directly to consumers, but forbade out-of-state wineries from doing the same thing. The states argued that these regulations were permitted under the 21st Amendment.

But the Supreme Court ruled the laws, “discriminate against interstate commerce in violation of the Commerce Clause, and that the discrimination is neither authorized nor permitted by the 21st Amendment.” The federal government has exclusive purview over interstate commerce. States may not enact laws that favor in-state businesses to the detriment of out-of-state competitors.

So, Tennessee tried something that it hoped would not run afoul of the Commerce Clause. The law is that someone must live in Tennessee for at least two years before applying for a liquor store license.

Well, Total Wine did not take kindly to this legislation. They sued Tennessee, arguing that the residency requirement effectively kept away all out-of-state competitors and was, therefore, unconstitutional.

An Association of Retailers in Tennessee defended the law. Tellingly, Tennessee’s own attorney general declined to join in the defense after the 6th District Court of Appeals ruled against the law.

But the retailers took it all the way to the Supreme Court, in Tennessee Wine and Spirits Retailers Association v. Thomas.

In a 7-2 decision striking down the law, Justice Sam Alito considered the “rationales” for the law. He dismissed them, saying, “Not only is the two-year residency requirement ill-suited to promote responsible sales and consumption practices (an interest that we recognize as legitimate), but there are obvious alternatives that better serve that goal without discriminating against non-residents.”

Alito concluded his opinion with, “…the predominant effect of the two-year residency requirement is simply to protect the association’s members from out-of-state competition. We therefore hold that this provision violates the Commerce Clause and is not saved by the 21st Amendment.”

Perhaps as a result of the Tennessee and Granholm decisions, the sale of wine and spirits will be more open, which Eliot Ness, if he was still alive, would condemn.

Carl Kanowsky is an attorney, a fledgling baker, an enthusiastic cook and an expert wine drinker.

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