Federalism doesn’t include blocking open trade among states

by Clint Bolick
Goldwater Institute
As our nation’s capital continues to expand its power at an alarming rate, many conservatives (including me) are seeking shelter in the power of the states to protect the liberty of their citizens, on issues ranging from health insurance to the right of a secret ballot in deciding whether to form unions.

The nationwide call for state autonomy has grown so passionate that some are attempting to hijack it for wicked purposes.

H.R. 5034, sponsored by Representative Bill Delahunt of Massachusetts, invokes the language of states’ rights to advance one of the few powers clearly denied the states in the original Constitution: economic protectionism. This bill would give states the power to regulate interstate alcohol shipments, even in a discriminatory manner if there is a “justification” for doing so.

The law essentially would overturn Grandholm v. Heald, a 2005 U.S. Supreme Court case that I argued, in which the Court struck down discriminatory barriers that blocked wine shipments to consumers across state lines. The regulations benefited liquor wholesalers, who want to control every drop of alcohol and charge hefty middleman fees, while hurting wine consumers who want to buy directly from a vineyard in another state. With the advent of the Internet, this battle plays out every day over products ranging from cars to contact lenses, as middlemen seek to protect their delivery monopolies.

The Commerce Clause was intended to end protectionist trade barriers by the states. Over time, Congress has abused its power under the Commerce Clause to regulate activities that have little or nothing to do with interstate commerce. We must curb the abuses without destroying the critical purpose of the Commerce Clause: to ensure an open national market.

True federalism gives states the power to expand liberty, not to diminish it. Regulation of interstate commerce is a power our Constitution’s framers thought the states could not be trusted to exercise fairly – and they were right.

Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.


  1. This is aimed at New Hampshire. Mass legislators forever have fumed at the fact that Mass residents buy their alcohol two feet across the state line because it’s cheaper than high-taxed Mass alcohol.

  2. Nice to see the GI taking up the issue of liquor sales in MA. I wonder, when are we going to hear an opinion on the little discussed, below the radar, SB1070 that was passed in AZ?

  3. It can cause greater issue if open trade will be blocked. Depressing.

  4. THe Democrat Party/media hysteria about SB 1070 is a political tactic. THe problem is SB1070 is 100% based on Federal law and the established Constitutional role of the Federal government to protect the nation. Challenge SB1070 and every law that SB1070 echoes is in court, too.

    SB1070 is in perfect harmony with the law of the land. That’s why Holder is STILL waiting for his “briefing.” Doo doo do dum-dee-dum.

    The only hope to get rid of it is to stoke hysterical public pressure – mob outrage – to SCARE people into changing it.

    So, while Holder is waiting for his “briefing” he’s mouthing off to INFLUENCE public opinion, a behavior unbefitting the Attorney General of the USA or even the loweliest newbie junior law partner. He don’t need no “briefing” – he already KNOWS SB1070 is built on solid legal ground.

    Interesting to see how many people are either too stupid to see the blatent public manipulation or care so little about the value of Rule of Law that they lend their support to trying to change legislation by lynch mob behavior.

  5. wanumba,
    Wonderful. Then one would think the GI would come out with press release stating so.

  6. What for?

  7. Clint–

    Commerce in alcohol is different than any other product, because the Constitution creates an explicit exception for state to regulate the transportation or importation of alcohol into a state. The 21st amendment ended prohibition, but it gave states the power to regulate alcohol. Specifically, Section 2 says, “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.”

    I may be a federalist, but I am also an originalist. The text of the 21st amendment seems to clearly give states the right to regulate alcohol sales. This bill is simply correcting SCOTUS’s wrong decision.

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