A case of wine

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(Host) Next week, the United States Supreme Court will hear arguments in a case that could change the way at least one industry in Vermont does business. Commentator Cheryl Hanna gives us a taste of what’s to come.

(Hanna) Let’s say you’ve surfing on e-Bay and find a rare bottle of wine that would be the perfect holiday gift for your Zinfandel-loving dad. If you live in Vermont, don’t hit the buy-now icon. It’s illegal.

Vermont is among more than 20 states which prohibit its residents from directly ordering wine. We have to buy alcohol from state-licensed stores, which often don’t carry small producers.

Nor can you ship your dad a bottle of Shelburne Vineyard Riesling, or a wine from of Vermont’s other eleven wineries, if he lives in Michigan or New York or another prohibitive state.

If we were talking about maple syrup, such laws would be unconstitutional. The commerce clause prohibits states from protecting their own industries or impeding the flow of interstate commerce. But thanks to the twenty-first amendment, which gave states the right to control alcohol after Prohibition ended, some states believe that they’re free to regulate wine any way they choose, even if it hurts industry.

Next week the United States Supreme Court will hear arguments in a case which will decide whether laws like Vermont’s are constitutional, or whether the Commerce Clause does in fact trump the twenty-first

But when you sniff beneath the surface this case is about more than wine. It highlights a conflict in conservative values that’s likely to plague the court for years to come. And just how the court will rule is still anybody’s guess at this point.

States like Michigan, New York and Vermont are represented by conservative lawyers such as Miguel Estrada, and former Judge Robert Bork. They argue states should be free to regulate as they deem
necessary without federal interference.

They’re joined by Evangelicals, social conservatives, and Colleges who want to promote temperance and reduce underage drinking. These groups fear “total alcohol anarchy” if the other side wins. And the Beverage Wholesalers have poured enormous resources into this case to ensure that they maintain a monopoly over sales.

In contrast, wine producing states like California, which stand to benefit most from fewer restrictions, are represented by former White Water prosecutor Ken Starr as well as conservative libertarian groups who don’t believe wine should be singled-out of the economy.

These Reaganomic free-marketers argue that the restrictions amount to economic protectionism which hurts entrepreneurs and restricts consumer freedom. They fear the outcome will affect e-commerce generally if states are allowed to impose additional restrictions on those who do business within their borders.

It’s a blended outcome for Vermont, however the Court decides. Economic protectionism generally hurts small businesses – the mainstay of the Vermont economy. While the wine industry in Vermont isn’t likely to boom, a change in our law would give a modest boost to our regional producers and provide consumers more choice.

And if the state wins our state retains the right to close our markets for moral reasons, whatever the economic cost. It’s a lesson in You Can’t Have your Wine, and Drink it Too.

This is Cheryl Hanna.

Cheryl Hanna is a professor at Vermont Law School in South Royalton.

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