(Slip Opinion) OCTOBER TERM, 2018 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

TENNESSEE WINE AND SPIRITS RETAILERS ASSN. 

v. RUSSELL F. THOMAS, EXECUTIVE DIRECTOR OF 

THE TENNESSEE ALCOHOLIC BEVERAGE 

COMMISSION, ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE SIXTH CIRCUIT 

No. 18–96. Argued January 16, 2019—Decided June 26, 2019 

Tennessee law imposes durational-residency requirements on persons 

and companies wishing to operate retail liquor stores, requiring applicants for an initial license to have resided in the State for the prior 

two years; requiring an applicant for renewal of a license to reside in 

the State for 10 consecutive years; and providing that a corporation

cannot obtain a license unless all of its stockholders are residents. 

Following the state attorney general’s opinion that the residency requirements discriminated against out-of-state economic interests in 

violation of the Commerce Clause, the Tennessee Alcoholic Beverage 

Commission (TABC) declined to enforce the requirements. 

Two businesses that did not meet the residency requirements (both

respondents here) applied for licenses to own and operate liquor 

stores in Tennessee. Petitioner Tennessee Wine and Spirits Retailers

Association (Association)—a trade association of in-state liquor

stores—threatened to sue the TABC if it granted the licenses, so the 

TABC’s executive director (also a respondent) filed a declaratory

judgment action in state court to settle the question of the residency 

requirements’ constitutionality. The case was removed to Federal 

District Court, which found the requirements unconstitutional. The 

State declined to appeal, but the Association took the case to the 

Sixth Circuit. It affirmed, concluding that the provisions violated the 

Commerce Clause. The Association petitioned for certiorari only with 

respect to the Sixth Circuit’s decision to invalidate the 2-year residency requirement applicable to initial liquor store license appli-
 

 

 

 

2 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Syllabus 

cants. 

Held: Tennessee’s 2-year durational-residency requirement applicable

to retail liquor store license applicants violates the Commerce Clause

and is not saved by the Twenty-first Amendment. Pp. 6–37.

(a) The Commerce Clause by its own force restricts state protectionism. Removing state trade barriers was a principal reason for the 

adoption of the Constitution, and at this point no provision other 

than the Commerce Clause could easily do that job. The Court has 

long emphasized the connection between the trade barriers that 

prompted the call for a new Constitution and its dormant Commerce 

Clause jurisprudence. See Guy v. Baltimore, 100 U. S. 434, 440; 

Granholm v. Heald, 544 U. S. 460, 472. Pp. 6–10.

(b) Under the dormant Commerce Clause cases, a state law that 

discriminates against out-of-state goods or nonresident economic actors can be sustained only on a showing that it is narrowly tailored to

“advanc[e] a legitimate local purpose.” Department of Revenue of Ky. 

v. Davis, 553 U. S. 328, 338. Tennessee’s 2-year residency requirement plainly favors Tennesseans over nonresidents. P. 10. 

(c) Because the 2-year residency requirement applies to the sale of 

alcohol, however, it must be evaluated in light of §2 of the Twentyfirst Amendment. Pp. 10–20.

(1) Section 2’s broad text—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”—could be read to prohibit the transportation or 

importation of alcoholic beverages in violation of any state law. But 

the Court has declined to adopt that reading, instead interpreting §2 

as one part of a unified constitutional scheme and in light of the provision’s history. History teaches that §2’s thrust is to “constitutionaliz[e]” the basic structure of federal-state alcohol regulatory authority

that prevailed prior to the Eighteenth Amendment’s adoption. Craig 

v. Boren, 429 U. S. 190, 206. Pp. 10–12.

(2) This Court invalidated many state liquor regulations before 

the Eighteenth Amendment’s ratification, and by the late 19th century it had concluded that the Commerce Clause both prevented States

from discriminating “against citizens and products of other States,” 

Walling v. Michigan, 116 U. S. 446, 460, and “prevented States from

passing facially neutral laws that placed an impermissible burden on

interstate commerce,” Granholm, 544 U. S., at 477. State bans on 

the production and sale of alcohol within state borders were rendered 

ineffective by the “original-package doctrine,” which made “goods 

shipped in interstate commerce . . . immune from state regulation 

while in their original package.” Ibid. Congress responded by passing the Wilson Act, which provided that all alcoholic beverages 
 

 

 

 

 

 

Cite as: 588 U. S. ____ (2019) 3 

Syllabus 

“transported into any State or Territory” were subject “upon arrival” 

to the same restrictions imposed by the State “in the exercise of its 

police powers” over alcohol produced in the State, i.e., bona fide 

health and safety measures. This Court, however, narrowly construed the term “arrival” in the Wilson Act as arrival to the consignee 

rather than arrival within the State’s borders, which allowed consumers to continue to receive direct shipments of alcohol from out of 

State. Congress passed the Webb-Kenyon Act to close that loophole. 

But, as this Court’s decision in Granholm determined, the WebbKenyon Act was not intended to override the rule barring States from 

discriminating against out-of-state citizens and products, nor the 

traditional limits on state police power. Thereafter, the Eighteenth 

Amendment was ratified, prohibiting the manufacture, sale, transportation, and importation of alcoholic beverages across the country. 

Pp. 12–20. 

(d) Section 2 of the Twenty-first Amendment grants the States latitude with respect to the regulation of alcohol, but it does not allow

the States to violate the “nondiscrimination principle” that was a

central feature of the regulatory regime that the provision was meant

to constitutionalize. Granholm, supra, at 487. Pp. 20–32.

(1) The Twenty-first Amendment ended nationwide Prohibition, but §2 gave each State the option of banning alcohol if its citizens so chose. Its text “closely follow[ed]” the Webb-Kenyon Act’s operative language, suggesting that it was meant to have a similar 

meaning. Craig v. Boren, 429 U. S., at 205–206. The provision was 

meant to “constitutionaliz[e]” the basic understanding of the extent of 

the States’ power to regulate alcohol that prevailed before Prohibition. Id., at 206. And during that period, the Commerce Clause did 

not permit the States to impose protectionist measures clothed as police-power regulations. Pp. 20–22.

(2) At first, the Court did not take account of this history. But 

it has since recognized that §2 cannot be interpreted to override all 

previously adopted constitutional provisions, scrutinizing state alcohol laws for compliance with, e.g., the Free Speech Clause, 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 484; the Establishment 

Clause, Larkin v. Grendel’s Den, Inc., 459 U. S. 116; the Equal Protection Clause, Craig v. Boren, supra; the Due Process Clause, Wisconsin v. Constantineau, 400 U. S. 433; and the Import-Export 

Clause, Department of Revenue v. James B. Beam Distilling Co., 377 

U. S. 341. Section 2 also does not entirely supersede Congress’s power to regulate commerce, see, e.g., Hostetter v. Idlewild Bon Voyage 

Liquor Corp., 377 U. S. 324, 333–334, nor is its aim to permit States 

to restrict the importation of alcohol for purely protectionist purposes, see, e.g., Granholm, supra, at 486–487. Pp. 22–23. 
 

 

4 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Syllabus 

(3) Protectionism is not a legitimate §2 interest shielding state

alcohol laws that burden interstate commerce. Bacchus Imports, Ltd. 

v. Dias, 468 U. S. 263, 276. The Court has applied that principle to

invalidate state alcohol laws aimed at giving a competitive advantage

to in-state businesses. See, e.g., id., at 274. Pp. 24–26.

(4) The Association and the dissent’s overly broad understanding of §2 is unpersuasive. They claim that, while §2 does not give the 

States the power to discriminate against out-of-state alcohol products 

and producers, a different rule applies to state laws regulating instate alcohol distribution. There is no sound basis for this distinction. The Association and the dissent also claim that discriminatory

distribution laws, including in-state residency requirements, long

predate Prohibition and were adopted by many States following the 

Twenty-first Amendment’s ratification. State laws adopted soon after ratification, however, may have been based on an overly expansive interpretation of §2 that can no longer be defended, and many

state laws adopted before Prohibition were never tested in this Court.

Nor have States historically enjoyed absolute authority to police alcohol within their borders. Section 2 allows each State leeway to enact 

measures to address the public health and safety effects of alcohol 

use and other legitimate interests, but it does not license the States 

to adopt protectionist measures with no demonstrable connection to 

those interests. Pp. 26–32.

(d) Applying the appropriate §2 analysis here, Tennessee’s 2-year 

residency requirement cannot be sustained. The provision expressly 

discriminates against nonresidents and has at best a highly attenuated relationship to public health or safety. The Association claims 

that the requirement ensures that retailers are subject to process in

state courts, but does not explain why that objective could not easily

be achieved by, e.g., requiring a nonresident to designate an agent to 

receive process. Similarly unpersuasive is its claim that the requirement allows the State to ensure that only law-abiding and responsible applicants receive licenses. The State can thoroughly investigate applicants without requiring them to reside in the State for

two years, and in any event the requirement poorly serves that goal 

since the TABC would have no reason to investigate a nonresident 

who moves to the State with the intention of applying for a license

once the 2-year period ends. Nor is the residency requirement needed to enable the State to maintain oversight over liquor store operators; they can be monitored through any number of nondiscriminatory means, including on-site inspections, audits, and the like. There is 

also no evidence to support the claim that the requirement would 

promote responsible alcohol consumption because retailers who know 

the communities they serve will be more likely to engage in responsi-
 

 

Cite as: 588 U. S. ____ (2019) 5 

Syllabus 

ble sales practices. The residency requirement is poorly designed for 

such a purpose, and the State could better serve the goal without discriminating against nonresidents by, e.g., limiting both the number of 

retail licenses and the amount of alcohol that may be sold to an individual, mandating more extensive training for managers and employees, or monitoring retailer practices and taking action against 

those who violate the law. Pp. 32–36. 

883 F. 3d 608, affirmed. 

ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J., 

and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ., 

joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J., 

joined. 
 

 

_________________ 

_________________ 

Cite as: 588 U. S. ____ (2019) 1 

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to 

notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press. 

SUPREME COURT OF THE UNITED STATES 

No. 18–96 

TENNESSEE WINE AND SPIRITS RETAILERS 

ASSOCIATION, PETITIONER v. RUSSELL F. 

THOMAS, EXECUTIVE DIRECTOR OF THE 

TENNESSEE ALCOHOLIC BEVERAGE 

COMMISSION, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 26, 2019] 

JUSTICE ALITO delivered the opinion of the Court. 

The State of Tennessee imposes demanding durationalresidency requirements on all individuals and businesses 

seeking to obtain or renew a license to operate a liquor 

store. One provision precludes the renewal of a license 

unless the applicant has resided in the State for 10 consecutive years. Another provides that a corporation cannot obtain a license unless all of its stockholders are residents. The Court of Appeals for the Sixth Circuit struck

down these provisions as blatant violations of the Commerce Clause, and neither petitioner—an association of

Tennessee liquor retailers—nor the State itself defends 

them in this Court. 

The Sixth Circuit also invalidated a provision requiring

applicants for an initial license to have resided in the 

State for the prior two years, and petitioner does challenge

that decision. But while this requirement is less extreme

than the others that the Sixth Circuit found to be uncon-
2 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

stitutional, we now hold that it also violates the Commerce Clause and is not shielded by §2 of the Twenty-first 

Amendment. Section 2 was adopted as part of the scheme

that ended prohibition on the national level. It gives each

State leeway in choosing the alcohol-related public health

and safety measures that its citizens find desirable. But 

§2 is not a license to impose all manner of protectionist 

restrictions on commerce in alcoholic beverages. Because 

Tennessee’s 2-year residency requirement for retail license 

applicants blatantly favors the State’s residents and 

has little relationship to public health and safety, it is 

unconstitutional. 

I 

A 

Tennessee, like many other States, requires alcoholic 

beverages distributed in the State to pass through a specified three-tiered system.1 Acting through the Tennessee 

Alcoholic Beverage Commission (TABC), the State issues

different types of licenses to producers, wholesalers, and 

retailers of alcoholic beverages. See Tenn. Code Ann. §57– 

3–201 (2018). Producers may sell only to licensed wholesalers; wholesalers may sell only to licensed retailers or 

other wholesalers; and only licensed retailers may sell to 

consumers. §57–3–404. No person may lawfully participate in the sale of alcohol without the appropriate license. 

See, e.g., §57–3–406. 

Included in the Tennessee scheme are onerous durational-

—————— 

1For purposes of the provisions at issue here, Tennessee law defines 

“alcoholic beverage[s]” to include “spirits, liquor, wine, high alcohol 

content beer,” and “any liquid product containing distilled alcohol 

capable of being consumed by a human being, manufactured or made 

with distilled alcohol, regardless of alcohol content,” Tenn. Code Ann. 

§57–3–101(a)(1)(A) (2018). This definition excludes “beer,” which is 

defined and regulated by separate statutory provisions, see §57–5–

101(b). 
Cite as: 588 U. S. ____ (2019) 3 

Opinion of the Court 

residency requirements for all persons and companies wishing to operate “retail package stores” that sell 

alcoholic beverages for off-premises consumption (hereinafter liquor stores). See §57–3–204(a). To obtain an initial retail license, an individual must demonstrate that he 

or she has “been a bona fide resident” of the State for the 

previous two years. §57–3–204(b)(2)(A). And to renew 

such a license—which Tennessee law requires after only 

one year of operation—an individual must show continuous residency in the State for a period of 10 consecutive 

years. Ibid. 

The rule for corporations is also extraordinarily restrictive. A corporation cannot get a retail license unless all of 

its officers, directors, and owners of capital stock satisfy

the durational-residency requirements applicable to individuals. §57–3–204(b)(3). In practice, this means that no

corporation whose stock is publicly traded may operate a 

liquor store in the State. 

In 2012, the Tennessee attorney general was asked 

whether the State’s durational-residency requirements

violate the Commerce Clause, and his answer was that the 

requirements constituted “trade restraints and barriers 

that impermissibly discriminate against interstate commerce.” App. to Brief in Opposition 11a; see also id., at 

12a (citing Jelovsek v. Bredesen, 545 F. 3d 431, 435 (CA6 

2008)). In light of that opinion, the TABC stopped enforcing the requirements against new applicants. See App.

51, ¶9; id., at 76, ¶10. 

The Tennessee General Assembly responded by amending the relevant laws to include a statement of legislative 

intent. Citing the alcohol content of the beverages sold in 

liquor stores, the Assembly found that protection of “the 

health, safety and welfare” of Tennesseans called for “a 

higher degree of oversight, control and accountability for 

individuals involved in the ownership, management and

control” of such outlets. §57–3–204(b)(4). 
 

4 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

After the amendments became law, the attorney general was again asked about the constitutionality of the 

durational-residency requirements, but his answer was 

the same as before. See App. to Brief in Opposition 13a. 

Consequently, the TABC continued its practice of 

nonenforcement. 

B 

In 2016, respondents Tennessee Fine Wines and Spirits,

LLC dba Total Wine Spirits Beer & More (Total Wine) and 

Affluere Investments, Inc. dba Kimbrough Fine Wine & 

Spirits (Affluere) applied for licenses to own and operate

liquor stores in Tennessee. At the time, neither Total 

Wine nor Affluere satisfied the durational-residency requirements. Total Wine was formed as a Tennessee limited liability company but is owned by residents of Maryland, Brief for Respondent Total Wine 10; App. 51, ¶4–5, 

and Affluere was owned and controlled by two individuals

who, by the time their application was considered, had 

only recently moved to the State, see App. 11–12, 20, 22.

TABC staff recommended approval of the applications, 

but petitioner Tennessee Wine and Spirits Retailers Association (the Association)—a trade association of in-state 

liquor stores—threatened to sue the TABC if it granted 

them. Id., at 15, ¶17. The TABC’s executive director (a

respondent here) filed a declaratory judgment action in

state court to settle the question of the residency requirements’ constitutionality. Id., at 17. 

The case was removed to the United States District 

Court for the Middle District of Tennessee, and that court, 

relying on our decision in Granholm v. Heald, 544 U. S. 

460 (2005), concluded that the requirements are unconstitutional. Byrd v. Tennessee Wine and Spirits Retailers 

Assn., 259 F. Supp. 3d 785, 797 (2017). The State declined to appeal, and Total Wine and Affluere were issued

licenses. 
Cite as: 588 U. S. ____ (2019) 5 

Opinion of the Court 

The Association, however, took the case to the Court of 

Appeals for the Sixth Circuit, where a divided panel affirmed. See Byrd v. Tennessee Wine and Spirits Retailers 

Assn., 883 F. 3d 608 (2018). All three judges acknowledged that the Tennessee residency requirements facially 

discriminate against out-of-state economic interests. See 

id., at 624; id., at 634 (Sutton, J., concurring in part and 

dissenting in part). And all three also agreed that neither 

the 10-year residency requirement for license renewals nor 

the 100-percent-resident shareholder requirement is 

constitutional under this Court’s Twenty-first Amendment

and dormant Commerce Clause precedents. See id., at 

625–626; id., at 635 (opinion of Sutton, J.). 

The panel divided, however, over the constitutionality of

the 2-year residency requirement for individuals seeking 

initial retail licenses, as well as the provision applying 

those requirements to officers and directors of corporate

applicants. Applying standard dormant Commerce Clause 

scrutiny, the majority struck down the challenged restrictions, reasoning that they facially discriminate 

against interstate commerce and that the interests they

are claimed to further can be adequately served through 

reasonable, nondiscriminatory alternatives. Id., at 623– 

626. The dissent disagreed, reading §2 of the Twenty-first 

Amendment to grant States “‘virtually’ limitless” authority 

to regulate the in-state distribution of alcohol, the only 

exception being for laws that “serve no purpose besides

‘economic protectionism.’” Id., at 633 (quoting Bacchus 

Imports, Ltd. v. Dias, 468 U. S. 263, 276 (1984)). Applying

that highly deferential standard, the dissent would have 

upheld the 2-year residency requirement, as well as the 

provision applying that requirement to all officers and

directors of corporate applicants. The dissent argued that

these provisions help to promote the State’s interests in 

“responsible consumption” of alcohol and “orderly liquor 

markets.” 883 F. 3d, at 633. 
 

6 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

The Association filed a petition for a writ of certiorari

challenging the decision on the 2-year residency requirement for initial licenses. Tennessee declined to seek certiorari but filed a letter with the Court expressing agreement with the Association’s position.2 We granted 

certiorari, 585 U. S. ___ (2018), in light of the disagreement among the Courts of Appeals about how to reconcile 

our modern Twenty-first Amendment and dormant Commerce Clause precedents. See 883 F. 3d, at 616 (collecting 

cases). 

II 

A 

The Court of Appeals held that Tennessee’s 2-year

residency requirement violates the Commerce Clause, 

which provides that “[t]he Congress shall have Power . . . 

[t]o regulate Commerce with foreign Nations, and among

the several States, and with the Indian Tribes.” Art. I, §8,

cl. 3. “Although the Clause is framed as a positive grant of 

power to Congress,” Comptroller of Treasury of Md. v. 

Wynne, 575 U. S. ___, ___ (2015) (slip op., at 5), we have 

long held that this Clause also prohibits state laws that 

unduly restrict interstate commerce. See, e.g., ibid.; Philadelphia v. New Jersey, 437 U. S. 617, 623–624 (1978); 

Cooley v. Board of Wardens of Port of Philadelphia ex rel. 

Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319 

(1852); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245, 

252 (1829). “This ‘negative’ aspect of the Commerce

Clause” prevents the States from adopting protectionist

measures and thus preserves a national market for goods

and services. New Energy Co. of Ind. v. Limbach, 486 

U. S. 269, 273 (1988).

This interpretation, generally known as “the dormant 

—————— 

2See Letter from H. Slatery III, Tenn. Atty. Gen., to S. Harris, Clerk 

of Court (Nov. 13, 2018). 
Cite as: 588 U. S. ____ (2019) 7 

Opinion of the Court 

Commerce Clause,” has a long and complicated history. 

Its roots go back as far as Gibbons v. Ogden, 9 Wheat. 1 

(1824), where Chief Justice Marshall found that a version

of the dormant Commerce Clause argument had “great

force.” Id., at 209. His successor disagreed, see License 

Cases, 5 How. 504, 578–579 (1847) (Taney, C. J.), but by 

the latter half of the 19th century the dormant Commerce

Clause was firmly established, see, e.g., Case of the State 

Freight Tax, 15 Wall. 232, 279–280 (1873), and it played

an important role in the economic history of our Nation. 

See Cushman, Formalism and Realism in Commerce 

Clause Jurisprudence, 67 U. Chi. L. Rev. 1089, 1107 

(2000).

In recent years, some Members of the Court have authored vigorous and thoughtful critiques of this interpretation. See, e.g., Camps Newfound/Owatonna, Inc. v. 

Town of Harrison, 520 U. S. 564, 609–620 (1997)

(THOMAS, J., dissenting); Tyler Pipe Industries, Inc. v. 

Washington State Dept. of Revenue, 483 U. S. 232, 259– 

265 (1987) (Scalia, J., concurring in part and dissenting in

part); cf. post, at 2–3 (GORSUCH, J., dissenting) (deeming

doctrine “peculiar”). But the proposition that the Commerce Clause by its own force restricts state protectionism 

is deeply rooted in our case law. And without the dormant 

Commerce Clause, we would be left with a constitutional 

scheme that those who framed and ratified the Constitution would surely find surprising.

That is so because removing state trade barriers was a

principal reason for the adoption of the Constitution. 

Under the Articles of Confederation, States notoriously

obstructed the interstate shipment of goods. “Interference 

with the arteries of commerce was cutting off the very lifeblood of the nation.” M. Farrand, The Framing of the 

Constitution of the United States 7 (1913). The Annapolis 

Convention of 1786 was convened to address this critical 

problem, and it culminated in a call for the Philadelphia 
8 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

Convention that framed the Constitution in the summer of 

1787.3 At that Convention, discussion of the power to 

regulate interstate commerce was almost uniformly linked 

to the removal of state trade barriers, see Abel, The Commerce Clause in the Constitutional Convention and in 

Contemporary Comment, 25 Minn. L. Rev. 432, 470–471

(1941), and when the Constitution was sent to the state 

conventions, fostering free trade among the States was

prominently cited as a reason for ratification. In The 

Federalist No. 7, Hamilton argued that state protectionism could lead to conflict among the States, see The Federalist No. 7, pp. 62–63 (C. Rossiter ed. 1961), and in No. 

11, he touted the benefits of a free national market, id., at 

88–89. In The Federalist No. 42, Madison sounded a 

similar theme. Id., at 267–268. 

In light of this background, it would be strange if the

Constitution contained no provision curbing state protectionism, and at this point in the Court’s history, no provision other than the Commerce Clause could easily do the 

job. The only other provisions that the Framers might 

have thought would fill that role, at least in part, are the 

Import-Export Clause, Art. I, §10, cl. 2, which generally

prohibits a State from “lay[ing] any Imposts or Duties on 

Imports or Exports,” and the Privileges and Immunities

Clause, Art. IV, §2, which provides that “[t]he Citizens of 

each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” But the ImportExport Clause was long ago held to refer only to international trade. See Woodruff v. Parham, 8 Wall. 123, 136– 

137 (1869). And the Privileges and Immunities Clause 

has been interpreted not to protect corporations, Western 

—————— 

3See, e.g., R. Beeman, Plain, Honest Men: The Making of the American Constitution 18–20 (2009); D. Stewart, The Summer of 1787: The 

Men Who Invented the Constitution 9–10 (2007); M. Farrand, The 

Framing of the Constitution of the United States 7–10 (1913). 
 

 

Cite as: 588 U. S. ____ (2019) 9 

Opinion of the Court 

& Southern Life Ins. Co. v. State Bd. of Equalization of 

Cal., 451 U. S. 648, 656 (1981) (citing Hemphill v. Orloff, 

277 U. S. 537, 548–550 (1928)), and may not guard against 

certain discrimination scrutinized under the dormant 

Commerce Clause, see Denning, Why the Privileges and 

Immunities Clause of Article IV Cannot Replace the

Dormant Commerce Clause Doctrine, 88 Minn. L. Rev. 

384, 393–397 (2003). So if we accept the Court’s established interpretation of those provisions, that leaves the

Commerce Clause as the primary safeguard against state

protectionism.4 

It is not surprising, then, that our cases have long emphasized the connection between the trade barriers that 

prompted the call for a new Constitution and our dormant

Commerce Clause jurisprudence. In Guy v. Baltimore, 100 

U. S. 434, 440 (1880), for example, the Court wrote that

state protectionist measures, “if maintained by this court,

would ultimately bring our commerce to that ‘oppressed

and degraded state,’ existing at the adoption of the present 

Constitution, when the helpless, inadequate Confederation 

—————— 

4Before Woodruff, there was authority suggesting that the ImportExport Clause applied to trade between States. See Brown v. Maryland, 12 Wheat. 419, 449 (1827) (Marshall, C. J.); Almy v. California, 

24 How. 169 (1861). And more recently Woodruff has been questioned.

See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U. S. 

564, 624–636 (1997) (THOMAS, J., dissenting). But one way or the other, 

it would grossly distort the Constitution to hold that it provides no 

protection against a broad swath of state protectionist measures. Even 

at the time of the adoption of the Constitution, it would have been 

asking a lot to require that Congress pass a law striking down every

protectionist measure that a State or unit of local government chose to 

enact. Cf. Friedman & Deacon, A Course Unbroken: The Constitutional Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 

1898–1903 (2011); 3 The Records of the Federal Convention of 1787,

p. 549 (M. Farrand ed. 1911) (the Virginia Plan’s proposal of a congressional negative was “justly abandoned, as, apart from other objections, 

it was not practicable among so many States, increasing in number, 

and enacting, each of them, so many laws”). 
 

10 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

was abandoned and the national government instituted.” 

More recently, we observed that our dormant Commerce

Clause cases reflect a “‘central concern of the Framers 

that was an immediate reason for calling the Constitutional Convention: the conviction that in order to succeed, 

the new Union would have to avoid the tendencies toward 

economic Balkanization that had plagued relations among 

the Colonies and later among the States under the Articles 

of Confederation.’” Granholm, 544 U. S., at 472 (quoting 

Hughes v. Oklahoma, 441 U. S. 322, 325–326 (1979)). 

In light of this history and our established case law, we 

reiterate that the Commerce Clause by its own force restricts state protectionism. 

B 

Under our dormant Commerce Clause cases, if a state 

law discriminates against out-of-state goods or nonresident economic actors, the law can be sustained only on a 

showing that it is narrowly tailored to “‘advanc[e] a legitimate local purpose.’” Department of Revenue of Ky. v. 

Davis, 553 U. S. 328, 338 (2008). See also, e.g., Oregon 

Waste Systems, Inc. v. Department of Environmental Quality of Ore., 511 U. S. 93, 100–101 (1994); Maine v. Taylor, 

477 U. S. 131, 138 (1986).

Tennessee’s 2-year durational-residency requirement

plainly favors Tennesseans over nonresidents, and neither

the Association nor the dissent below defends that requirement under the standard that would be triggered if 

the requirement applied to a person wishing to operate a 

retail store that sells a commodity other than alcohol. See 

883 F. 3d, at 626. Instead, their arguments are based on 

§2 of the Twenty-first Amendment, to which we will now 

turn. 
Cite as: 588 U. S. ____ (2019) 11 

Opinion of the Court 

III 

A 

Section 2 of the Twenty-first Amendment provides as 

follows: 

“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.” 

Although the interpretation of any provision of the Constitution must begin with a consideration of the literal meaning of that particular provision, reading §2 to prohibit the

transportation or importation of alcoholic beverages in

violation of any state law5 would lead to absurd results 

that the provision cannot have been meant to produce. 

Under the established rule that a later adopted provision

takes precedence over an earlier, conflicting provision of

equal stature, see, e.g., United States v. Tynen, 11 Wall. 

88, 92 (1871); Posadas v. National City Bank, 296 U. S. 

497, 503 (1936); A. Scalia & B. Garner, Reading Law 327–

328 (2012); 1A N. Singer & J. Singer, Sutherland on Statutory Construction §23:9 (7th ed. 2009), such a reading of 

§2 would mean that the provision would trump any irreconcilable provision of the original Constitution, the Bill of 

Rights, the Fourteenth Amendment, and every other

constitutional provision predating ratification of the 

Twenty-first Amendment in 1933. This would mean, 

among other things, that a state law prohibiting the im-

—————— 

5As we will explain, §2 followed the wording of the 1913 WebbKenyon Act, ch. 90, 37 Stat. 699, see Craig v. Boren, 429 U. S. 190, 

205–206 (1976), and, given this Court’s case law at the time, it went

without saying that the only state laws that Congress could protect

from constitutional challenge were those that represented the valid

exercise of the police power, which was not understood to authorize 

purely protectionist measures with no bona fide relation to public 

health or safety. See infra, at 14–15, 18–19. 
12 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

portation of alcohol for sale to persons of a particular race, 

religion, or sex would be immunized from challenge under 

the Equal Protection Clause. Similarly, if a state law

prohibited the importation of alcohol for sale by proprietors who had expressed an unpopular point of view on an

important public issue, the First Amendment would provide no protection. If a State imposed a duty on the importation of foreign wine or spirits, the Import-Export

Clause would have to give way. If a state law retroactively 

made it a crime to have bought or sold imported alcohol 

under specified conditions, the Ex Post Facto Clause would 

provide no barrier to conviction. The list goes on. 

Despite the ostensibly broad text of §2, no one now 

contends that the provision must be interpreted in this 

way. Instead, we have held that §2 must be viewed as one 

part of a unified constitutional scheme. See California 

Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445 

U. S. 97, 109 (1980); Hostetter v. Idlewild Bon Voyage 

Liquor Corp., 377 U. S. 324, 331–332 (1964); cf. Scalia & 

Garner, supra, at 167–169, 180–182. In attempting to

understand how §2 and other constitutional provisions

work together, we have looked to history for guidance, and 

history has taught us that the thrust of §2 is to “constitutionaliz[e]” the basic structure of federal-state alcohol 

regulatory authority that prevailed prior to the adoption of 

the Eighteenth Amendment. Craig v. Boren, 429 U. S. 

190, 206 (1976). We therefore examine that history. 

B 

Throughout the 19th century, social problems attributed

to alcohol use prompted waves of state regulation, and 

these measures were often challenged as violations of 

various provisions of the Federal Constitution. 

One wave of state regulation occurred during the first

half of the century. The country’s early years were a time

of notoriously hard drinking, see D. Okrent, Last Call: The 
 

Cite as: 588 U. S. ____ (2019) 13 

Opinion of the Court 

Rise and Fall of Prohibition 7 (2010),6 and the problems

that this engendered prompted States to enact a variety of

regulations, including licensing requirements, age restrictions, and Sunday-closing laws. See Byse, Alcoholic 

Beverage Control Before Repeal, 7 Law & Contemp. Prob. 

544, 546–551 (1940). 

Three States’ alcohol licensing laws came before this 

Court in 1847 in the License Cases, 5 How. 504. The 

principal claim in those cases was similar to the one now 

before us; licensing laws enacted in three States were 

challenged under the Commerce Clause. The Court unanimously rejected those claims, but six Justices authored 

opinions; no opinion commanded a majority; and the general status of dormant Commerce Clause claims was left 

uncertain. See 5 C. Swisher, The Taney Period, 1836–64,

History of the Supreme Court of the United States 373–

374 (1974).

Following the Civil War, the Court considered a steady

stream of alcohol-regulation cases. The postwar period 

saw a great proliferation of saloons,7 and myriad social 

—————— 

6Between 1780 and 1830, Americans consumed “more alcohol, on an 

individual basis, than at any other time in the history of the nation,”

with per capita consumption double that of the modern era. R. Mendelson, From Demon to Darling: A Legal History of Wine in America 11

(2009). 7By 1872, about 100,000 had sprung up across the country, and by 

the end of the century, that number had climbed to almost 300,000. 

Id., at 31. This increase has been linked to the introduction of the 

English “tied-house” system. Under the tied-house system, an alcohol 

producer, usually a brewer, would set up saloonkeepers, providing them

with premises and equipment, and the saloonkeepers, in exchange, 

agreed to sell only that producer’s products and to meet set sales 

requirements. Ibid.; T. Pegram, Battling Demon Rum: The Struggle for

a Dry America, 1800–1933, p. 95 (1998). To meet those requirements,

saloonkeepers often encouraged irresponsible drinking. Id., at 97. The 

three-tiered distribution model was adopted by States at least in large 

part to preclude this system. See Arnold’s Wines, Inc. v. Boyle, 571 

F. 3d 185, 187 (CA2 2009). 
14 TENNESSEE WINE AND SPIRITS 

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Opinion of the Court 

problems were attributed to this development. In response, many States passed laws restricting the sale of 

alcohol. By 1891, six States had banned alcohol production and sale completely. R. Hamm, Shaping the Eighteenth Amendment 25 (1995) (Hamm). 

During this period, state laws regulating the alcohol 

trade were unsuccessfully challenged in this Court on a

variety of constitutional grounds. See, e.g., Mugler v. 

Kansas, 123 U. S. 623 (1887) (Privileges or Immunities

and Due Process Clauses of Fourteenth Amendment); Beer 

Co. v. Massachusetts, 97 U. S. 25 (1878) (Contracts 

Clause); Bartemeyer v. Iowa, 18 Wall. 129 (1874) (Privileges 

or Immunities and Due Process Clauses of Fourteenth 

Amendment). In those decisions, the Court staunchly 

affirmed the “right of the States,” in exercising their “police power,” to “protect the health, morals, and safety of

their people,” but the Court also cautioned that this objective could be pursued only “by regulations that do not 

interfere with the execution of the powers of the general 

government, or violate rights secured by the Constitution 

of the United States.” Mugler, 123 U. S., at 659. For that 

reason, the Court continued, “mere pretences” could not 

sustain a law regulating alcohol; rather, if “a statute

purporting to have been enacted to protect the public

health, the public morals, or the public safety, has no real

or substantial relation to those objects, or is a palpable

invasion of rights secured by the fundamental law, it is 

the duty of the courts to so adjudge, and thereby give

effect to the Constitution.” Id., at 661. 

Dormant Commerce Clause challenges also reached the

Court. States that banned the production and sale of 

alcohol within their borders found that these laws did not 

stop residents from consuming alcohol shipped in from

other States. To curb that traffic, States passed laws

regulating or prohibiting the importation of alcohol, and 

these enactments were quickly challenged. 
 

 

Cite as: 588 U. S. ____ (2019) 15 

Opinion of the Court 

By the late 19th century, the Court was firmly of the

view that the Commerce Clause by its own force restricts 

state regulation of interstate commerce. See Bowman v. 

Chicago & Northwestern R. Co., 125 U. S. 465 (1888); 

Leisy v. Hardin, 135 U. S. 100 (1890). Dormant Commerce 

Clause cases from that era “advanced two distinct principles,” an understanding of which is critical to gauging the 

States’ pre-Prohibition power to regulate alcohol. 

Granholm, 544 U. S., at 476. 

First, the Court held that the Commerce Clause prevented States from discriminating “against the citizens 

and products of other States,” Walling v. Michigan, 116 

U. S. 446, 460 (1886). See also Scott v. Donald, 165 U. S. 

58 (1897); Tiernan v. Rinker, 102 U. S. 123 (1880). Applying that rule, the Walling Court struck down a discriminatory state fee that applied only to those in the business of 

selling imported alcohol. 116 U. S., at 454, 458. Similarly, 

in Scott, the Court invalidated a law that gave an “unjust 

preference [to] the products of the enacting State as

against similar products of the other States.” 165 U. S., at 

101. The Court did not question the States’ use of the

police power to regulate the alcohol trade but stressed that

such regulation must have a “bona fide” relation to protecting “‘the public health, the public morals or the public 

safety,’” id., at 91 (quoting Mugler, supra, at 661), and

could not encroach upon Congress’s “power to regulate

commerce among the several States,” Walling, supra, 

at 458. 

Second, the Court “held that the Commerce Clause 

prevented States from passing facially neutral laws that 

placed an impermissible burden on interstate commerce.” 

Granholm, 544 U. S., at 477. At the time of these decisions, the “original-package doctrine” defined the outer 

limits of Congress’s authority to regulate interstate commerce. Ibid. See Brown v. Maryland, 12 Wheat. 419 

(1827). Under that doctrine, “goods shipped in interstate 
 

16 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

commerce were immune from state regulation while in

their original package,” because at that point they had not 

yet been comingled with the mass of domestic property

subject to state jurisdiction. Granholm, 544 U. S., at 477; 

see id., at 477–478 (citing Vance v. W. A. Vandercook Co., 

170 U. S. 438, 444–445 (1898)). Applying this doctrine to

state alcohol laws, the Court struck down an Iowa statute 

that required importers to obtain special certificates, 

Bowman, supra, as well as another Iowa law that, with 

limited exceptions, banned the importation of liquor, 

Leisy, supra. 

These decisions left dry States “in a bind.” Granholm, 

supra, at 478. See Rogers, Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va. L. Rev.

174 (1916), 288 (1917) (noting “practical nullification of 

state laws” by original-package decisions). States could 

ban the production and sale of alcohol within their borders, but those bans “were ineffective because out-of-state 

liquor was immune from any state regulation as long as it 

remained in its original package.” Granholm, supra, at 

478. In effect, the Court’s interpretation of the dormant

Commerce Clause conferred favored status on out-of-state 

alcohol, and that hamstrung the dry States’ efforts to 

enforce local prohibition laws. Representatives of those

States and temperance advocates thus turned to Congress,

which passed two laws to solve the problem. 

The first of these was the Wilson Act, enacted in 1890. 

Ch. 728, 26 Stat. 313, 27 U. S. C. §121. Named for Senator James F. Wilson of Iowa, whose home State’s laws had 

fallen in Bowman and Leisy, the Wilson Act aimed to 

obviate the problem presented by the “original-package” 

rule. Dormant Commerce Clause restrictions apply only

when Congress has not exercised its Commerce Clause 

power to regulate the matter at issue, cf. Bowman, supra, 

at 485; Leisy, supra, at 123–124, and the strategy of those

who favored the Wilson Act was for Congress to eliminate 
Cite as: 588 U. S. ____ (2019) 17 

Opinion of the Court 

the problem that had surfaced in Bowman and Leisy by

regulating the interstate shipment of alcohol, see Hamm

77–80; Rogers, supra, at 194–195. During the late 19th 

century and early 20th century, Congress enacted laws

that entirely prohibited the transportation of certain goods

and persons across state lines, and some but not all of 

these measures were held to be valid exercises of the 

commerce power. See Lottery Case, 188 U. S. 321 (1903) 

(upholding law prohibiting interstate shipment of lottery

tickets); Hoke v. United States, 227 U. S. 308 (1913) (sustaining Mann Act prohibition on bringing women across 

state lines for prostitution); Hammer v. Dagenhart, 247 

U. S. 251 (1918) (striking down provision banning interstate shipment of goods produced by child labor). 

Unlike these laws, the Wilson Act did not attempt to

ban all interstate shipment of alcohol. Its goal was more

modest: to leave it up to each State to decide whether to 

admit alcohol. Its critical provision specified that all 

alcoholic beverages “transported into any State or Territory” were subject “upon arrival” to the same restrictions 

imposed by the State “in the exercise of its police powers” 

over alcohol produced in the State.8 Thus, the Wilson Act 

mandated equal treatment for alcohol produced within

and outside a State, not favorable treatment for local 

products. See Granholm, supra, at 479 (discussing Scott, 

165 U. S., at 100–101). And the only state laws that it 

attempted to shield were those enacted by a State “in the 

—————— 

8The provision read as follows: 

“That all fermented, distilled, or other intoxicating liquors or liquids

transported into any State or Territory or remaining therein for use,

consumption, sale or storage therein, shall upon arrival in such State or

Territory be subject to the operation and effect of the laws of such State

or Territory enacted in the exercise of its police powers, to the same 

extent and in the same manner as though such liquids or liquors had 

been produced in such State or Territory, and shall not be exempt

therefrom by reason of being introduced therein in original packages or

otherwise.” Ch. 728, 26 Stat. 313, 27 U. S. C. §121. 
 

 

 

18 TENNESSEE WINE AND SPIRITS 

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Opinion of the Court 

exercise of its police powers,” which, as we have seen, 

applied only to bona fide health and safety measures. See, 

e.g., id., at 91 (citing Mugler, 123 U. S., at 661). 

Despite Congress’s clear aim, the Wilson Act failed to

relieve the dry States’ predicament. In Rhodes v. Iowa, 

170 U. S. 412 (1898), and Vance v. W. A. Vandercook Co., 

supra, the Court read the Act’s reference to the “arrival” of 

alcohol in a State to mean delivery to the consignee, not 

arrival within the State’s borders. Granholm, 544 U. S., 

at 480. The upshot was that residents of dry States could 

continue to order and receive imported alcohol. Ibid. See 

also Hamm 178. In 1913, Congress tried to patch this hole

by passing the Webb-Kenyon Act, ch. 90, 37 Stat. 699, 27

U. S. C. §122.

The aim of the Webb-Kenyon Act was to give each State

a measure of regulatory authority over the importation of

alcohol, but this created a drafting problem. There were 

those who thought that a federal law giving the States this

authority would amount to an unconstitutional delegation

of Congress’s legislative power over interstate commerce.9 

So the Act was framed not as a measure conferring power 

on the States but as one prohibiting conduct that violated 

state law. The Act provided that the shipment of alcohol

into a State for use in any manner, “either in the original

package or otherwise,” “in violation of any law of such 

State,” was prohibited.10 This formulation is significant 

—————— 

9That was the position expressed in an opinion issued by Attorney 

General Wickersham, 30 Op. Atty. Gen. 88 (1913), and President Taft’s 

veto, which Congress overrode, was based on exactly this ground. 49 

Cong. Rec. 4291 (1913) (Veto Message of the President). 10The Act provided: 

“That the shipment or transportation . . . of any spirituous, vinous, 

malted, fermented, or other intoxicating liquor of any kind, from one 

State . . . into any other State . . . which said spirituous, vinous, malted, 

fermented, or other intoxicating liquor is intended, by any person

interested therein, to be received, possessed, sold, or in any manner

used, either in the original package or otherwise, in violation of any law 
Cite as: 588 U. S. ____ (2019) 19 

Opinion of the Court 

for present purposes because it would provide a model for 

§2 of the Twenty-first Amendment. 

The Webb-Kenyon Act attempted to fix the hole in the 

Wilson Act and thus to “eliminate the regulatory advantage . . . afforded imported liquor,” Granholm, supra, 

at 482; see also Clark Distilling Co. v. Western Maryland 

R. Co., 242 U. S. 311, 324 (1917), but its wording, unlike

the Wilson Act’s, did not explicitly mandate equal treatment for imported and domestically produced alcohol.

And it referred to “any law of such State,” 37 Stat. 700 

(emphasis added), whereas the Wilson Act referred to “the

laws of such State or Territory enacted in the exercise of its 

police powers.” 26 Stat. 313 (emphasis added). But despite these differences, Granholm held, over a strenuous 

dissent, 544 U. S., at 505–514 (opinion of THOMAS, J.),

that the Webb-Kenyon Act did not purport to authorize 

States to enact protectionist measures. 

There is good reason for this holding. As we have noted, 

the Court’s pre-Webb-Kenyon Act decisions upholding

state liquor laws against challenges based on constitutional

provisions other than the Commerce Clause had cautioned that protectionist laws disguised as exercises of the

police power would not escape scrutiny. See supra, at 14– 

15.11 The Webb-Kenyon Act, by regulating commerce,

could obviate dormant Commerce Clause problems, but it 

could not override the limitations imposed by these other 

constitutional provisions and the traditional understanding regarding the bounds of the States’ inherent police 

powers. Therefore the Wilson Act’s reference to laws 

“enacted in the exercise of [a State’s] police powers,” 26

Stat. 313, merely restated what this Court had already 

—————— 

of such State . . . is hereby prohibited.” 37 Stat. 699–700. 11This principle was also invoked in dormant Commerce Clause cases 

involving other products. See, e.g., Minnesota v. Barber, 136 U. S. 313, 

319, 323 (1890); Railroad Co. v. Husen, 95 U. S. 465, 472 (1878). 
20 TENNESSEE WINE AND SPIRITS 

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Opinion of the Court 

found to be a constitutional necessity, and consequently,

there was no need to include such language in the WebbKenyon Act. Even without limiting language like that in

the Wilson Act, the shelter given by the Webb-Kenyon Act 

applied only where “the States treated in-state and out-ofstate liquor on the same terms.” Granholm, supra, at 

481.12 

Following passage of the Webb-Kenyon Act, temperance

advocates began the final push for nationwide Prohibition, 

and with the ratification of the Eighteenth Amendment in

1919, their goal was achieved. The manufacture, sale, 

transportation, and importation of alcoholic beverages

anywhere in the country were prohibited. 

IV 

A 

By 1933, support for Prohibition had substantially 

diminished but not vanished completely. Thirty-eight

state conventions eventually ratified the Twenty-first

Amendment, but 10 States either rejected or took no 

action on the Amendment. Section 1 of the Twenty-first

Amendment repealed the Eighteenth Amendment and

thus ended nationwide Prohibition, but §2, the provision 

at issue here, gave each State the option of banning alcohol if its citizens so chose. 

—————— 

12Lower court decisions issued between the enactment of the WebbKenyon Act and the ratification of the Eighteenth Amendment interpreted the Act this way. See Evansville Brewing Assn. v. Excise 

Comm’n of Jefferson Cty., Ala., 225 F. 204 (ND Ala. 1915); Southern 

Express Co. v. Whittle, 194 Ala. 406, 69 So. 652 (1915); Brennen v. 

Southern Express Co., 106 S. C. 102, 90 S. E. 402 (1916); Charleston & 

W. C. R. Co. v. Gosnell, 106 S. C. 84, 90 S. E. 264 (1916) (Hydrick, J., 

concurring); Monumental Brewing Co. v. Whitlock, 111 S. C. 198, 97 

S. E. 56 (1918). See also Pacific Fruit & Produce Co. v. Martin, 16 F. 

Supp. 34, 39–40 (WD Wash. 1936); Friedman, Constitutional Law: 

State Regulation of Importation of Intoxicating Liquor Under Twentyfirst Amendment, 21 Cornell L. Q. 504, 509 (1936). 
 

 

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Opinion of the Court 

As we have previously noted, the text of §2 “closely

follow[ed]” the operative language of the Webb-Kenyon

Act, and this naturally suggests that §2 was meant to

have a similar meaning. Craig, 429 U. S., at 205–206. 

The decision to follow that unusual formulation is especially revealing since the drafters of §2, unlike those who 

framed the Webb-Kenyon Act, had no need to worry that a

more straightforward wording might trigger a constitutional challenge. Accordingly, we have inferred that §2

was meant to “constitutionaliz[e]” the basic understanding

of the extent of the States’ power to regulate alcohol that

prevailed before Prohibition. Id., at 206. See also 

Granholm, supra, at 484. And as recognized during that

period, the Commerce Clause did not permit the States to

impose protectionist measures clothed as police-power

regulations. See supra, at 14–15. See also, e.g., Railroad 

Co. v. Husen, 95 U. S. 465, 472 (1878) (a State “may

not, under the cover of exerting its police powers, substantially prohibit or burden either foreign or inter-state

commerce”). 

This understanding is supported by the debates on the 

Amendment in Congress13 and the state ratifying conventions. The records of the state conventions provide no

evidence that §2 was understood to give States the power

to enact protectionist laws,14 “a privilege [the States] had 

—————— 

13See, e.g., 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah) (§2 of 

Twenty-first Amendment would “incorporat[e] [Webb-Kenyon] permanently in the Constitution of the United States”); id., at 4168 (statement of Sen. Fess) (“[T]he second section of the joint resolution . . . is 

designed to permit the Federal authority to assist the States that want 

to be dry to remain dry”); id., at 4518 (statement of Rep. Robinson) 

(“Section 2 attempts to protect dry states”). 14See Nielson, No More “Cherry-Picking”: The Real History of the 

21st Amendment’s §2, 28 Harv. J. L. & Pub. Pol’y 281, 286, n. 21 

(2004). See generally E. Brown, Ratification of the Twenty-first 

Amendment to the Constitution of the United States; State Convention 

Records and Laws (1938). 
22 TENNESSEE WINE AND SPIRITS 

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Opinion of the Court 

not enjoyed at any earlier time.” Granholm, supra, at 485. 

B 

Although our later cases have recognized that §2 cannot

be given an interpretation that overrides all previously

adopted constitutional provisions, the Court’s earliest

cases interpreting §2 seemed to feint in that direction. In 

1936, the Court found that §2’s text was “clear” and saw 

no need to consider whether history supported a more

modest interpretation, State Bd. of Equalization of Cal. v. 

Young’s Market Co., 299 U. S. 59, 63–64 (1936)—an approach even the dissent rejects, see infra, at 24, n. 16; 

post, at 2.15 The Court read §2 as granting each State 

plenary “power to forbid all importations which do not

comply with the conditions which it prescribes,” Young’s 

Market, supra, at 62; see also Ziffrin, Inc. v. Reeves, 308 

U. S. 132, 138–139 (1939), including laws that discrimi-

—————— 

15The dissent characterizes the Court as a “committee of nine” that 

has “stray[ed] from the text” of the Twenty-first Amendment and

“impose[d] [its] own free-trade rules” on the States. Post, at 8, 15 

(opinion of J. GORSUCH). This is empty rhetoric. The dissent itself 

strays from a blinkered reading of the Amendment. The dissent 

interprets §2 of the Amendment to mean more than it literally says, 

arguing that §2 covers the residency requirements at issue even though 

they are not tied in any way to what the Amendment actually addresses,

namely, “the transportation or importation” of alcohol across state 

lines. See post, at 2, n. 1. And the dissent agrees that §2 cannot be 

read as broadly as one might think if its language were read in isolation and not as part of an integrated constitutional scheme. See post,

at 2. The dissent asserts that §2 does not abrogate all previously

adopted constitutional provisions, just the dormant Commerce Clause. 

But the dissent does not say whether it thinks §2 allows the States to 

adopt alcohol regulations that serve no conceivable purpose other than

protectionism. Even the dissent below did not go that far. See n. 18, 

infra. If §2 gives the States carte blanche to engage in protectionism, 

we suppose that Tennessee could restrict licenses to persons who can

show that their lineal ancestors have lived in the State since 1796 when 

the State entered the Union. Does the dissent really think that this is 

what §2 was meant to permit? 
 

Cite as: 588 U. S. ____ (2019) 23 

Opinion of the Court 

nated against out-of-state products. See, e.g., Young’s 

Market, supra, at 62; Mahoney v. Joseph Triner Corp., 304 

U. S. 401, 403 (1938); Indianapolis Brewing Co. v. Liquor 

Control Comm’n, 305 U. S. 391, 394 (1939). The Court 

went so far as to assume that the Fourteenth Amendment 

imposed no barrier to state legislation in the field of alcohol regulation. See Young’s Market, supra, at 64 (“A classification recognized by the Twenty-first Amendment 

cannot be deemed forbidden by the Fourteenth”).

With subsequent cases, however, the Court saw that §2

cannot be read that way, and it therefore scrutinized state

alcohol laws for compliance with many constitutional 

provisions. See, e.g., 44 Liquormart, Inc. v. Rhode Island, 

517 U. S. 484 (1996) (Free Speech Clause); Larkin v. 

Grendel’s Den, Inc., 459 U. S. 116 (1982) (Establishment 

Clause); Craig v. Boren, supra (Equal Protection Clause); 

Wisconsin v. Constantineau, 400 U. S. 433 (1971) (Due

Process Clause); Department of Revenue v. James B. Beam 

Distilling Co., 377 U. S. 341 (1964) (Import-Export

Clause).

The Court also held that §2 does not entirely supersede 

Congress’s power to regulate commerce. Instead, after 

evaluating competing federal and state interests, the 

Court has ruled against state alcohol laws that conflicted 

with federal regulation of the export of alcohol, Hostetter, 

377 U. S., at 333–334, federal antitrust law, Midcal Aluminum, 445 U. S., at 110–111, 113–114; 324 Liquor Corp. 

v. Duffy, 479 U. S. 335, 346–347, 350–351 (1987), and

federal regulation of the airwaves, Capital Cities Cable, 

Inc. v. Crisp, 467 U. S. 691, 713, 716 (1984). 

As for the dormant Commerce Clause, the developments 

leading to the adoption of the Twenty-first Amendment

have convinced us that the aim of §2 was not to give 

States a free hand to restrict the importation of alcohol for 

purely protectionist purposes. See Granholm, supra, at 

486–487; Bacchus, 468 U. S., at 276. 
 

24 TENNESSEE WINE AND SPIRITS 

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Opinion of the Court 

C 

Although some Justices have argued that §2 shields all 

state alcohol regulation—including discriminatory laws—

from any application of dormant Commerce Clause doctrine,16 the Court’s modern §2 precedents have repeatedly

rejected that view. We have examined whether state 

alcohol laws that burden interstate commerce serve a 

State’s legitimate §2 interests. And protectionism, we 

have stressed, is not such an interest. Ibid. 

Applying that principle, we have invalidated state alcohol laws aimed at giving a competitive advantage to instate businesses. The Court’s decision in Bacchus “provides a particularly telling example.” Granholm, supra, at 

487. There, the Court was confronted with a tax exemption that favored certain in-state alcohol producers. In 

defending the law, the State argued that even if the discriminatory exemption violated “ordinary Commerce 

Clause principles, it [was] saved by the Twenty-first

Amendment.” Bacchus, 468 U. S., at 274. We rejected

that argument and held instead that the relevant question

was “whether the principles underlying the Twenty-first

Amendment are sufficiently implicated by the [discrimina-

—————— 

16See, e.g., Granholm v. Heald, 544 U. S. 460, 497–498 (2005) 

(THOMAS, J., dissenting); Healy v. Beer Institute, 491 U. S. 324, 349 

(1989) (Rehnquist, C. J., dissenting); 324 Liquor Corp. v. Duffy, 479 

U. S. 335, 352–353 (1987) (O’Connor, J., dissenting); Bacchus Imports, 

Ltd. v. Dias, 468 U. S. 263, 281–282 (1984) (Stevens, J., dissenting). 

The dissent rehashes this debate, see post, at 5–8, 14, asserting that 

the Webb-Kenyon Act, and thus §2, were “understood” to repudiate not 

only the original-package cases, but also the antidiscrimination rule 

articulated in cases including Scott v. Donald, 165 U. S. 58 (1897). But 

this Court’s modern §2 decisions—not simply the lower court decisions 

at which the dissent takes aim, see post, at 6, n. 3—establish that those 

enactments, though no doubt aimed at granting States additional 

“discretion to calibrate alcohol regulations to local preferences,” post, at 

2, did not exempt States from “the nondiscrimination principle of the

Commerce Clause.” Granholm, supra, at 487. 
Cite as: 588 U. S. ____ (2019) 25 

Opinion of the Court 

tory] exemption . . . to outweigh the Commerce Clause

principles that would otherwise be offended.” Id., at 275. 

Ultimately, we held that §2 did not save the disputed tax 

because it clearly aimed “‘to promote a local industry’” 

rather than “to promote temperance or to carry out 

any other purpose of the Twenty-first Amendment.” Id., 

at 276. 

The same went for the state law in Healy v. Beer Institute, 491 U. S. 324 (1989), which required out-of-state 

shippers of beer to affirm that their wholesale price for 

products sold in Connecticut was no higher than the prices

they charged to wholesalers in bordering States. Connecticut argued that the “Twenty-first Amendment sanction[ed]” this law “regardless of its effect on interstate

commerce,” id., at 341, but we held that the law violated 

the Commerce Clause, noting that it “discriminate[d] 

against brewers and shippers of beer engaged in interstate

commerce” without justification “by a valid factor unrelated 

to economic protectionism,” id., at 340–341.17 

Most recently, in Granholm, we struck down a set of 

discriminatory direct-shipment laws that favored in-state

wineries over out-of-state competitors. After surveying

the history of §2, we affirmed that “the Twenty-first

Amendment does not immunize all laws from Commerce 

Clause challenge.” 544 U. S., at 488. We therefore examined whether the challenged laws were reasonably necessary to protect the States’ asserted interests in policing

underage drinking and facilitating tax collection. Id., at 

489–493. Concluding that the answer to that question

was no, we invalidated the laws as inconsistent with the 

—————— 

17 Justice Scalia, for his part, thought the “statute’s invalidity [was] 

fully established by its facial discrimination against interstate commerce”—discrimination that in his view “eliminate[d] the immunity

afforded by the Twenty-first Amendment.” Healy, supra, at 344 (opinion concurring in part and concurring in judgment) (citing Bacchus, 

supra, at 275–276). 
 

 

 

26 TENNESSEE WINE AND SPIRITS 

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Opinion of the Court 

dormant Commerce Clause’s nondiscrimination principle. 

Id., at 492–493. 

To summarize, the Court has acknowledged that §2 

grants States latitude with respect to the regulation of

alcohol, but the Court has repeatedly declined to read §2 

as allowing the States to violate the “nondiscrimination 

principle” that was a central feature of the regulatory

regime that the provision was meant to constitutionalize. 

Id., at 487. 

D 

The Association resists this reading. Although it concedes (as it must under Granholm) that §2 does not give

the States the power to discriminate against out-of-state 

alcohol products and producers, the Association presses

the argument, echoed by the dissent, that a different rule 

applies to state laws that regulate in-state alcohol distribution. There is no sound basis for this distinction.18 

1 

The Association’s argument encounters a problem at the 

outset. The argument concedes that §2 does not shield

state laws that discriminate against interstate commerce

with respect to the very activity that the provision explicitly 

addresses—the importation of alcohol. But at the same 

time, the Association claims that §2 protects something

that §2’s text, if read literally, does not cover—laws restricting the licensing of domestic retail alcohol stores. 

That reading is implausible. Surely if §2 granted States

the power to discriminate in the field of alcohol regulation, 

—————— 

18The Association’s argument is more extreme than that of the dissent below, which recognized that in-state distribution laws that “serve 

no purpose besides ‘economic protectionism’ ” remain subject to 

dormant Commerce Clause scrutiny. Byrd v. Tennessee Wine and 

Spirits Retailers Assn., 883 F. 3d 608, 633 (CA6 2018) (Sutton, J., 

concurring in part and dissenting in part) (quoting Bacchus, supra, 

at 276). 
Cite as: 588 U. S. ____ (2019) 27 

Opinion of the Court 

that power would be at its apex when it comes to regulating the activity to which the provision expressly refers. 

The Association and the dissent point out that 

Granholm repeatedly spoke of discrimination against outof-state products and producers, but there is an obvious 

explanation: The state laws at issue in Granholm discriminated against out-of-state producers. See 883 F. 3d, at 

621. And Granholm never said that its reading of history

or its Commerce Clause analysis was limited to discrimination against products or producers. On the contrary,

the Court stated that the Clause prohibits state discrimination against all “‘out-of-state economic interests,’” 

Granholm, 544 U. S., at 472 (emphasis added), and noted 

that the direct-shipment laws in question “contradict[ed]”

dormant Commerce Clause principles because they “deprive[d] citizens of their right to have access to the markets of other States on equal terms.” Id., at 473 (emphasis

added). Granholm also described its analysis as consistent with the rule set forth in Bacchus, Brown-Forman 

Distillers Corp. v. New York State Liquor Authority, 476 

U. S. 573 (1986), and Healy that “‘[w]hen a state statute 

directly regulates or discriminates against interstate 

commerce, or when its effect is to favor in-state economic 

interests over out-of-state interests, we have generally

struck down the statute without further inquiry.’” 

Granholm, supra, at 487 (quoting Brown-Forman, supra, 

at 579; emphasis added).

The Association counters that even if the Granholm 

Court did not explicitly limit its holding to products and 

producers, the Court implicitly did so when it rejected the

argument that its analysis would call into question the 

constitutionality of state laws setting up three-tiered 

alcohol distribution systems. See Granholm, supra, at 

488–489. This argument, which the dissent also advances, 

see post, at 12–13, reads far too much into Granholm’s 

discussion of the three-tiered model. Although Granholm 
 

 

28 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

spoke approvingly of that basic model, it did not suggest 

that §2 sanctions every discriminatory feature that a State 

may incorporate into its three-tiered scheme. At issue in 

the present case is not the basic three-tiered model of 

separating producers, wholesalers, and retailers, but the 

durational-residency requirement that Tennessee has 

chosen to impose on new applicants for liquor store licenses. 

Such a requirement is not an essential feature of a 

three-tiered scheme. Many such schemes do not impose

durational-residency requirements—or indeed any residency requirements—on individual or corporate liquor 

store owners. See, e.g., Brief for State of Illinois et al. as 

Amici Curiae 24–25, 27 (identifying States that have 

either “dispos[ed] with the durational aspect of the [residency] requirement” or “d[o] not regulate the residency of

the applicant corporation or partnership”). Other threetiered schemes differ in other ways. See, e.g., id., at 24–28 

(noting variations); FTC, Possible Anticompetitive Barriers to E-Commerce: Wine 7–9 (July 2003), https://

www.ftc.gov/sites/default/files/documents/reports/possible

-anticompetitive-barriers-e-commerce-wine/winereport2_0. 

pdf (as last visited June 24, 2019) (same). Because we 

agree with the dissent that, under §2, States “remai[n]

free to pursue” their legitimate interests in regulating the 

health and safety risks posed by the alcohol trade, post, 

at 12, each variation must be judged based on its own

features. 

2 

In support of the argument that the Tennessee scheme

is constitutional, the Association and its amici claim that 

discriminatory distribution laws, including in-state presence and residency requirements, long predate Prohibition 

and were adopted by many States following ratification of 
 

Cite as: 588 U. S. ____ (2019) 29 

Opinion of the Court 

the Twenty-first Amendment.19 Indeed, the Association 

notes that the 2-year durational-residency requirement 

now before us dates back to 1939 and is consistent with 

durational-residency regimes adopted by several other

States around the same time.20 According to the Association, that history confirms that §2 was intended to broadly 

exempt all in-state distribution laws from dormant Commerce Clause scrutiny. The dissent relies heavily on this 

same argument.

This argument fails for several reasons. Insofar as it 

relies on state laws enacted shortly after the ratification of

the Twenty-first Amendment and this Court’s early decisions interpreting it, the Association and the dissent’s

argument does not take into account the overly expansive

interpretation of §2 that took hold for a time in the immediate aftermath of its adoption. See supra, at 22–23. 

Thus, some state laws adopted soon after the ratification

of the Twenty-first Amendment may have been based on 

an understanding of §2 that can no longer be defended. It 

is telling that an argument similar to the one now made

by the Association would have dictated a contrary result in 

Granholm, since state laws disfavoring imported products

were passed during this same period. See, e.g., Young’s 

Market Co., 299 U. S., at 62 (discriminatory license fee on 

imported beer); Mahoney, 304 U. S., at 403 (prohibition on

import of certain liquors); Indianapolis Brewing Co., 305 

—————— 

19See Granholm, 544 U. S., at 518, and n. 6 (THOMAS, J., dissenting) 

(licensing schemes adopted by three-tier States following ratification of

Twenty-first Amendment discriminated “by requiring in-state residency

or physical presence as a condition of obtaining licenses”) (collecting 

statutes); Brief for Petitioner 33–34 (collecting residency-requirement 

statutes). See also Brief for State of Illinois et al. as Amici Curiae 7–8 

(referencing 19th-century state statutes that required “retailers to 

reside in-state or to maintain an in-state presence”). 20See 1939 Tenn. Pub. Acts, ch. 49, §§5–8; Brief for Petitioner 34 

(collecting durational-residency requirement statutes); Brief for State of

Illinois et al. as Amici Curiae 24 (same). 
 

 

30 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

U. S., at 394 (same). But our later cases have rejected this 

interpretation of §2. See Granholm, supra, at 487. 

Insofar as the Association’s argument is based on state 

laws adopted prior to Prohibition, it infers too much from 

the existence of laws that were never tested in this Court. 

Had they been tested here, there is no reason to conclude

that they would have been sustained. During that time, 

the Court repeatedly invalidated, on dormant Commerce

Clause grounds, a variety of state and local efforts to 

license those engaged in interstate business,21 and as 

noted, pre-Prohibition decisions of this Court and the 

lower courts held that state alcohol laws that discriminated against interstate commerce were unconstitutional, see 

supra, at 15. 

Contrary to the Association’s contention, not all of these 

—————— 

21 Real Silk Hosiery Mills v. Portland, 268 U. S. 325, 335–336 (1925) 

(license tax on solicitors of orders to be filled by an out-of-state manufacturer); Shafer v. Farmers Grain Co. of Embden, 268 U. S. 189, 197– 

201 (1925) (license requirement for the purchase of grain shipped 

immediately out of the State); Stewart v. Michigan, 232 U. S. 665, 669– 

670 (1914) (state law requiring a license for catalog sales); Crenshaw v. 

Arkansas, 227 U. S. 389, 399–401 (1913) (state law requiring a foreign

corporation actively soliciting sales in State to obtain a license); Dozier 

v. Alabama, 218 U. S. 124, 127–128 (1910) (licensing requirement on 

the solicitors of photography enlargement services and frames manufactured out of State); International Textbook Co. v. Pigg, 217 U. S. 91, 

107–111 (1910) (state law requiring an out-of-state educational publishing company to pay a license fee for exchanging materials with customers); Rearick v. Pennsylvania, 203 U. S. 507, 510–511 (1906) (ordinance 

requiring license to solicit orders for out-of-state goods); Norfolk & 

Western R. Co. v. Sims, 191 U. S. 441, 449–451 (1903) (state licensing

requirement on express company acting as agent for importer of a 

sewing machine); Brennan v. Titusville, 153 U. S. 289, 306–308 (1894) 

(licensing tax on persons engaged in trade on behalf of firms doing

business outside the State); Corson v. Maryland, 120 U. S. 502, 505– 

506 (1887) (state licensing requirement as applied to agent of out-ofstate firm soliciting sales); Welton v. Missouri, 91 U. S. 275, 278, 282– 

283 (1876) (state law requiring payment of license tax by sellers of outof-state goods). 
Cite as: 588 U. S. ____ (2019) 31 

Opinion of the Court 

decisions involved discrimination against alcohol produced 

out of State or alcohol importers. The tax in Walling, for 

example, applied to those engaged in the business of selling imported alcohol within the State. 116 U. S. 446. And 

in concluding that the law violated the Commerce Clause, 

the Court affirmed that, without the dormant Commerce 

Clause, there would “be no security against conflicting

regulations of different states, each discriminating in 

favor of its own products and citizens, and against the

products and citizens of other states.” Id., at 456–457 

(emphasis added). So too, the dispensary law in Scott was 

challenged on the ground that it discriminated “against

products of other States and against citizens of other 

States.” 165 U. S., at 62 (emphasis added); see also id., 

at 94. 

Nor have States historically enjoyed absolute authority

to police alcohol within their borders. As discussed earlier, 

far from granting the States plenary authority to adopt

domestic regulations, the Court’s police-power precedents 

required an examination of the actual purpose and effect

of a challenged law. See, e.g., Mugler, 123 U. S., at 661 

(“It does not at all follow that every statute enacted ostensibly for the promotion” of “the public health, the public 

morals, or the public safety” is “to be accepted as a legitimate exertion of the police powers of the State”); see also 

Husen, 95 U. S., at 472; Welton v. Missouri, 91 U. S. 275, 

278 (1876). Cf. H. Black, Intoxicating Liquors §30, p. 40

(1892) (stating that certain 19th-century licensing and 

residency requirements were valid because their “purpose 

and effect” was to prevent “the unlawful selling of liquors, 

and not to discriminate against citizens of other states” 

(emphasis added)).

For these reasons, we reject the Association’s overly

broad understanding of §2. That provision allows each

State leeway to enact the measures that its citizens believe are appropriate to address the public health and 
32 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

safety effects of alcohol use and to serve other legitimate 

interests, but it does not license the States to adopt protectionist measures with no demonstrable connection to those 

interests. 

V 

Having concluded that §2 does not confer limitless

authority to regulate the alcohol trade, we now apply the 

§2 analysis dictated by the provision’s history and our 

precedents.

If we viewed Tennessee’s durational-residency requirements as a package, it would be hard to avoid the conclusion that their overall purpose and effect is protectionist. 

Indeed, two of those requirements—the 10-year residency

requirement for license renewal and the provision that

shuts out all publicly traded corporations—are so plainly

based on unalloyed protectionism that neither the Association nor the State is willing to come to their defense. The 

provision that the Association and the State seek to preserve—the 2-year residency requirement for initial license

applicants—forms part of that scheme. But we assume 

that it can be severed from its companion provisions, see 

883 F. 3d, at 626–628, and we therefore analyze that

provision on its own.

Since the 2-year residency requirement discriminates on 

its face against nonresidents, it could not be sustained if it 

applied across the board to all those seeking to operate 

any retail business in the State. Cf. C & A Carbone, Inc. 

v. Clarkstown, 511 U. S. 383, 391–392 (1994); Lewis v. BT 

Investment Managers, Inc., 447 U. S. 27, 39 (1980). But 

because of §2, we engage in a different inquiry. Recognizing that §2 was adopted to give each State the authority to

address alcohol-related public health and safety issues in 

accordance with the preferences of its citizens, we ask

whether the challenged requirement can be justified as a 

public health or safety measure or on some other legiti-
 

Cite as: 588 U. S. ____ (2019) 33 

Opinion of the Court 

mate nonprotectionist ground. Section 2 gives the States

regulatory authority that they would not otherwise enjoy,

but as we pointed out in Granholm, “mere speculation” or

“unsupported assertions” are insufficient to sustain a law 

that would otherwise violate the Commerce Clause. 544 

U. S., at 490, 492. Where the predominant effect of a law 

is protectionism, not the protection of public health or

safety, it is not shielded by §2.

The provision at issue here expressly discriminates

against nonresidents and has at best a highly attenuated 

relationship to public health or safety. During the course 

of this litigation, the Association relied almost entirely on 

the argument that Tennessee’s residency requirements

are simply “not subject to Commerce Clause challenge,”

259 F. Supp. 3d, at 796, and the State itself mounted no 

independent defense. As a result, the record is devoid of 

any “concrete evidence” showing that the 2-year residency

requirement actually promotes public health or safety; nor 

is there evidence that nondiscriminatory alternatives

would be insufficient to further those interests. 

Granholm, supra, at 490; see 883 F. 3d, at 625–626. 

In this Court, the Association has attempted to defend

the 2-year residency requirement on public health and 

safety grounds, but this argument is implausible on its 

face. The Association claims that the requirement ensures

that retailers are “amenable to the direct process of state 

courts,” Brief for Petitioner 48 (internal quotation marks

omitted), but the Association does not explain why this

objective could not easily be achieved by ready alternatives, such as requiring a nonresident to designate an 

agent to receive process or to consent to suit in the Tennessee courts. See Cooper v. McBeath, 11 F. 3d 547, 554 

(CA5 1994).

Similarly unpersuasive is the Association’s claim that 

the 2-year requirement gives the State a better opportunity to determine an applicant’s fitness to sell alcohol and 
34 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

guards against “undesirable nonresidents” moving into the 

State for the purpose of operating a liquor store. Brief for 

Petitioner 10 (internal quotation marks omitted). The 

State can thoroughly investigate applicants without requiring them to reside in the State for two years before

obtaining a license. Tennessee law already calls for criminal background checks on all applicants, see Tenn. Code 

Ann. §57–3–208, and more searching checks could be 

demanded if necessary. As the Fifth Circuit observed in a 

similar case, “[i]f [the State] desires to scrutinize its applicants thoroughly, as is its right, it can devise nondiscriminatory means short of saddling applicants with the ‘burden’ of residing” in the State. Cooper, 11 F. 3d, at 554. 

The 2-year residency requirement, in any event, poorly 

serves the goal of enabling the State to ensure that only 

law-abiding and responsible applicants receive licenses. 

As the Tennessee attorney general explained, if a nonresident moves to the State with the intention of applying for 

a license once the 2-year period ends, the TABC will not 

necessarily have any inkling of the future applicant’s

intentions until that individual applies for a license, and 

consequently, the TABC will have no reason to begin an 

investigation until the 2-year period has ended. App. to

Brief in Opposition 17a. And all that the 2-year requirement demands is residency. A prospective applicant is not

obligated during that time “to be educated about liquor

sales, submit to inspections, or report to the State.” Ibid. 

The 2-year residency requirement is not needed to enable the State to maintain oversight over liquor store operators. In Granholm, it was argued that the prohibition on

the shipment of wine from out-of-state sources was justified because the State could not adequately monitor the

activities of nonresident entities. Citing “improvements in

technology,” we found that argument insufficient. 544 

U. S., at 492. See also Cooper, supra, at 554 (“In this age 

of split-second communications by means of computer 
Cite as: 588 U. S. ____ (2019) 35 

Opinion of the Court 

networks . . . there is no shortage of less burdensome, yet 

still suitable, options”). In this case, the argument is even 

less persuasive since the stores at issue are physically 

located within the State. For that reason, the State can 

monitor the stores’ operations through on-site inspections, 

audits, and the like. See §57–3–104. Should the State 

conclude that a retailer has “fail[ed] to comply with state 

law,” it may revoke its operating license. Granholm, 544 

U. S., at 490. This “provides strong incentives not to sell 

alcohol” in a way that threatens public health or safety. 

Ibid. 

In addition to citing the State’s interest in regulatory

control, the Association argues that the 2-year residency

requirement would promote responsible alcohol consumption. According to the Association, the requirement makes

it more likely that retailers will be familiar with the communities served by their stores, and this, it is suggested, 

will lead to responsible sales practices. Brief for Petitioner 

48–49. The idea, it seems, is that a responsible neighborhood proprietor will counsel or cut off sales to patrons who 

are known to be abusing alcohol, who manifest the effects

of alcohol abuse, or who perhaps appear to be purchasing too much alcohol. No evidence has been offered that 

durational-residency requirements actually foster such sales 

practices, and in any event, the requirement now before us 

is very poorly designed to do so.

For one thing, it applies to those who hold a license, not 

to those who actually make sales. For another, it requires

residence in the State, not in the community that a store 

serves. The Association cannot explain why a proprietor 

who lives in Bristol, Virginia, will be less knowledgeable 

about the needs of his neighbors right across the border in 

Bristol, Tennessee, than someone who lives 500 miles 

away in Memphis. And the rationale is further undermined by other features of Tennessee law, particularly the 

lack of durational-residency requirements for owners of 
36 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

Opinion of the Court 

bars and other establishments that sell alcohol for onpremises consumption. §57–4–201.

Not only is the 2-year residency requirement ill suited to

promote responsible sales and consumption practices (an 

interest that we recognize as legitimate, contrary to the 

dissent’s suggestion, post, at 9, 12, 14), but there are

obvious alternatives that better serve that goal without 

discriminating against nonresidents. State law empowers 

the relevant authorities to limit both the number of retail 

licenses and the amount of alcohol that may be sold to an

individual. Cf. §57–3–208(c) (permitting local governments to “limit . . . the number of licenses issued within 

their jurisdictions”); §57–3–204(d)(7)(C) (imposing volume

limits on certain sales of alcohol to patrons); Rules of

TABC, ch. 0100–01, §0100–01–.03(15) (2018) (same). The 

State could also mandate more extensive training for

managers and employees and could even demand that 

they demonstrate an adequate connection with and 

knowledge of the local community. Cf., e.g., Tenn. Code 

Ann. §57–3–221 (requiring managers of liquor stores to 

obtain permits, satisfy background checks, and undergo

“alcohol awareness” training). And the State of course 

remains free to monitor the practices of retailers and to 

take action against those who violate the law. 

Given all this, the Association has fallen far short of 

showing that the 2-year durational-residency requirement 

for license applicants is valid. Like the other discriminatory residency requirements that the Association is unwilling to defend, the predominant effect of the 2-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 Twenty-first Amendment.22 

—————— 

22 Our analysis and conclusion apply as well to the provision requiring all officers and directors of corporate applicants to satisfy the 2-year 
Cite as: 588 U. S. ____ (2019) 37 

Opinion of the Court 

* * * 

The judgment of the Court of Appeals for the Sixth 

Circuit is affirmed. 

It is so ordered. 

—————— 

residency requirement. See 883 F. 3d, at 623. 
 

_________________ 

_________________ 

Cite as: 588 U. S. ____ (2019) 1 

GORSUCH, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

No. 18–96 

TENNESSEE WINE AND SPIRITS RETAILERS 

ASSOCIATION, PETITIONER v. RUSSELL F. 

THOMAS, EXECUTIVE DIRECTOR OF THE 

TENNESSEE ALCOHOLIC BEVERAGE 

COMMISSION, ET AL. 

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE SIXTH CIRCUIT 

[June 26, 2019] 

JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,

dissenting. 

Alcohol occupies a complicated place in this country’s

history. Some of the founders were enthusiasts; Benjamin 

Franklin thought wine was “proof that God loves us.”

Letter from B. Franklin to A. Morellet (July 1779), in 7 

Writings of Benjamin Franklin 437 (A. Smyth ed. 1907).

Many in the Prohibition era were decidedly less enamored; 

they saw “liquor [a]s a lawlessness unto itself.” Duckworth v. Arkansas, 314 U. S. 390, 398 (1941) (Jackson, J.,

concurring in result). Over time, the people have adopted 

two separate constitutional Amendments to adjust and

then readjust alcohol’s role in our society. But through it

all, one thing has always held true: States may impose

residency requirements on those who seek to sell alcohol 

within their borders to ensure that retailers comply with 

local laws and norms. In fact, States have enacted residency requirements for at least 150 years, and the Tennessee law at issue before us has stood since 1939. Today 

and for the first time, the Court claims to have discovered 

a duty and power to strike down laws like these as unconstitutional. Respectfully, I do not see it. 
 

 

 

2 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

Start with the text of the Constitution. After the 

Nation’s failed experiment with Prohibition, the people

assembled in conventions in each State to adopt the Twentyfirst Amendment. In §1, they repealed the Eighteenth 

Amendment’s nationwide prohibition on the sale of alcohol. But in §2, they provided that “[t]he transportation or

importation into any State . . . for delivery or use therein 

of intoxicating liquors, in violation of the laws thereof, is

hereby prohibited.” The Amendment thus embodied a 

classically federal compromise: Nationwide prohibition

ended, but States gained broad discretion to calibrate 

alcohol regulations to local preferences. And under 

the terms of this compromise, Tennessee’s law imposing a 

two-year residency requirement on those who seek to 

sell liquor within its jurisdiction would seem perfectly 

permissible.1 

Of course, §2 does not immunize state laws from all 

constitutional claims. Everyone agrees that state laws 

must still comply with, say, the First Amendment or the

Equal Protection Clause. Ante, at 11–12. But the challenge before us isn’t based on any constitutional provision 

like that. Instead, we are asked to decide whether Tennessee’s residency requirement impermissibly discriminates against out-of-state residents and recent arrivals in 

violation of the “dormant Commerce Clause” doctrine. 

And that doctrine is a peculiar one. Unlike most constitutional rights, the dormant Commerce Clause doctrine 

—————— 

1The Court suggests that Tennessee’s residency requirement may fall

outside the terms of the Amendment because retailers may not be 

involved in the “transportation or importation” of liquor into the State. 

Ante, at 26. But the parties do not dispute that “transportation or

importation” into the State is involved here. And understandably so: 

Unless the liquor stores intend to sell only Tennessee-made liquor (and

no one so alleges), it is hard to see how transportation or importation 

would not be involved. 
 

Cite as: 588 U. S. ____ (2019) 3 

GORSUCH, J., dissenting 

cannot be found in the text of any constitutional provision

but is (at best) an implication from one. Under its banner, 

this Court has sometimes asserted the power to strike

down state laws that discriminate against nonresidents on

the ground that they usurp the authority to regulate

interstate commerce that the Constitution assigns in 

Article I to Congress. But precisely because the Constitution assigns Congress the power to regulate interstate

commerce, that body is free to rebut any implication of 

unconstitutionality that might otherwise arise under the 

dormant Commerce Clause doctrine by authorizing States

to adopt laws favoring in-state residents. Prudential Ins. 

Co. v. Benjamin, 328 U. S. 408, 434–436 (1946). 

And that’s exactly what happened here. In the WebbKenyon Act of 1913, Congress gave the States wide latitude to restrict the sale of alcohol within their borders. 

See 37 Stat. 699 (codified at 27 U. S. C. §122). Not only is

that law still on the books today, §2 of the Twenty-first 

Amendment closely “followed the wording of the 1913 

Webb-Kenyon Act.” Ante, at 11, n. 5. Accordingly, the

people who adopted the Amendment naturally would have

understood it to constitutionalize an “exception to the 

normal operation of the [dormant] Commerce Clause.” 

Craig v. Boren, 429 U. S. 190, 206 (1976). After all, what 

Congress can do by statute “surely the people may do . . . 

through the process of amending our Constitution.” 

Granholm v. Heald, 544 U. S. 460, 494 (2005) (Stevens, J., 

dissenting). So in this area, at least, we should not be in 

the business of imposing our own judge-made “dormant 

Commerce Clause” limitations on state powers. 

What the relevant constitutional and statutory texts

suggest, history confirms. Licensing requirements for the

sale of liquor are older than the Nation itself. Byse, Alcoholic Beverage Control Before Repeal, 7 Law & Contemp.

Prob. 544, 544–547 (1940). Colonial authorities generally

allowed sales only by those who were deemed “‘fit and 
 

 

 

4 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

suitable’” and who agreed to post a bond conditioned upon 

compliance with local regulations. Id., at 545. States 

started adopting residency requirements as early as 1834,

when New Hampshire began requiring any person who

sold liquor “in any quantity less than one gallon” to obtain 

a license “from the selectmen of the town or place where 

such person resides.” State v. Adams, 6 N. H. 532, 533 

(1834). In 1845, Missouri adopted a law nearly identical 

to the Tennessee statute now before us, requiring those 

seeking to sell liquor to have resided in the State for two 

years. Mo. Rev. Stat. app., p. 1099. In the decades that 

followed, several other States and Territories followed suit 

and enacted laws like Tennessee’s.2 

At the time these residency requirements were adopted 

they were widely understood to be constitutional, and 

courts generally upheld them against legal challenges. H. 

Black, Laws Regulating the Manufacture and Sale of 

Intoxicating Liquors §30, pp. 39–40, and n. 33 (1892) 

(collecting cases). Indeed, in the mid-19th century this 

Court “recognized a broad authority in state governments 

to regulate the trade of alcoholic beverages within their 

borders free from implied restrictions under the Commerce Clause.” Craig, 429 U. S., at 205 (citing the License 

Cases, 5 How. 504, 579 (1847)). 

Things became more contentious only toward the end of 

the 19th century. By then, this Court had begun to take a

more muscular approach to the dormant Commerce 

Clause and started using that implied doctrine to strike 

down state laws that restricted the sale of imported liquor.

See Bowman v. Chicago & Northwestern R. Co., 125 U. S. 

—————— 

2See, e.g., 1859 Neb. Terr. Laws p. 256; Iowa Code §1575 (1860); 1875 

Pa. Laws p. 42; N. Y. Rev. Stat. ch. 29, §23 (1896); S. C. Code Ann. §562 

(1902); Minn. Stat. §1529 (1905); R. I. Gen. Laws, ch. 123, §2 (1909); 

1911 Ala. Acts no. 259; Neb. Rev. Stat. §3844 (1913); Ind. Code §8323(e) 

(1914). 
 

 

 

Cite as: 588 U. S. ____ (2019) 5 

GORSUCH, J., dissenting 

465 (1888); Leisy v. Hardin, 135 U. S. 100 (1890). But this 

judicial activism did not go unnoticed, and in 1890 Congress responded by passing the Wilson Act. Ch. 728, 26 

Stat. 313 (codified at 27 U. S. C. §121). That law sought to

bolster the authority of States to regulate the distribution

of liquor within their borders by providing that liquor

shipped into a State would “upon arrival in such State . . . 

be subject to the operation and effect of the laws of such 

State . . . to the same extent and in the same manner as 

though such [liquor] had been produced in such State.” 

Still, the Court did not seem to get the message. A 

second wave of dormant Commerce Clause attacks on 

state laws soon followed, and in the process they highlighted some of the Wilson Act’s limitations. In Scott v. 

Donald, 165 U. S. 58 (1897), the Court addressed South

Carolina’s state monopoly system for the sale of liquor, 

which required state agents to favor domestic products

and prohibited consumers from receiving out-of-state

shipments for personal use. The Court held that this 

system unconstitutionally discriminated in favor of domestic products “as against similar products of the other 

States.” Id., at 101. Citing the text of the Wilson Act,

including the phrase “to the same extent and in the same 

manner,” the Court emphasized that the Act did not go so

far as to authorize States to “discriminate injuriously

against products of other States.” Id., at 100. Then, in 

Rhodes v. Iowa, 170 U. S. 412 (1898), the Court further 

curbed the States’ authority to restrict liquor distribution 

by construing the Wilson Act’s phrase “upon arrival in 

such State” to mean arrival at the purchaser’s address,

rather than arrival within the State’s borders. Id., at 421, 

426; see also Vance v. W. A. Vandercook Co., 170 U. S. 438 

(1898).

Once more, however, Congress stepped in to repudiate

this Court’s decisions, this time in unmistakably sweeping

language. In the Webb-Kenyon Act of 1913, Congress 
 

 

6 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

went so far as to “[take] the protection of interstate commerce away” from the distribution of liquor within a

State’s borders. Clark Distilling Co. v. Western Maryland 

R. Co., 242 U. S. 311, 325 (1917) (emphasis added). The 

language Congress used could not have been plainer: The

Act “prohibited” any “shipment or transportation” of alcoholic beverages “into any State” when they are “intended, 

by any person interested therein, to be received, possessed, sold, or in any manner used . . . in violation of any 

law of such State.” 27 U. S. C. §122. Within a few years,

the Court conceded the Webb-Kenyon Act’s constitutionality, acknowledging along the way that the law was designed to—and did—“prevent the immunity characteristic

of interstate commerce from being used to permit the

receipt of liquor through such commerce in States contrary

to their laws.” Clark Distilling, 242 U. S., at 324.3 

This history bears special relevance because everyone

agrees that, whatever other powers §2 grants the States, 

—————— 

3The Court cites a few pre-Prohibition cases—from one federal district court and two state courts—that, it says, construed Webb-Kenyon 

to preserve a rule against discrimination. Ante, at 20, n. 12. But these 

cases offer negligible support. True, two cases construed the Act’s 

authorization of “any laws” as limited to “valid laws,” a category from 

which these courts excluded laws discriminating against the products of 

other States. See Evansville Brewing Assn. v. Excise Comm’n of Jefferson Cty., Ala., 225 F. 204, 208 (ND Ala. 1915); Brennen v. Southern 

Express Co., 106 S. C. 102, 108–111, 90 S. E. 402, 404 (1916). But there 

is little reason to think courts would have considered residency requirements for liquor retailers “invalid,” as those laws had generally 

been upheld prior to Webb-Kenyon. And at least one of the cited cases 

appears to support the opposite view: “[A]ll commands or prohibitions 

ancillary and reasonably related to the state’s purpose to promote 

temperance . . . cannot be thwarted or annulled on any idea that 

constitutional rights are thereby violated.” Southern Express Co. v. 

Whittle, 194 Ala. 406, 436, 69 So. 652, 661 (1915). At any rate, a few 

scattered, thinly reasoned state and district court cases hardly settle 

anything. 
 

 

Cite as: 588 U. S. ____ (2019) 7 

GORSUCH, J., dissenting 

at a minimum it “‘constitutionaliz[ed]’” the similarly

worded Webb-Kenyon Act. Ante, at 11, n. 5, 21. Nor can 

there be much doubt how most everyone understood the

terms of the Act and the Amendment that embodied it. 

Because “centralized regulation did not work,” the Twentyfirst Amendment both ended nationwide prohibition in §1 

and authorized local control in §2. Yablon, The Prohibition Hangover: Why We Are Still Feeling the Effects of 

Prohibition, 13 Va. J. Soc. Pol’y & L. 552, 584 (2006). As a 

leading study noted at the time, “it was a mistake to regard the United States as a single community in which a

uniform policy of liquor control could be enforced.” R. 

Fosdick & A. Scott, Toward Liquor Control 10 (1933) 

(Fosdick & Scott). Ours is a vast and diverse Nation, and 

those who adopted the Amendment believed that what

works for one State may not work for another. Consistent 

with this widespread public understanding of the Amendment’s terms, at least 18 States adopted residency requirements for retailers within the first 15 years after its 

ratification.4 

This Court’s initial cases also reflected the same understanding of the Amendment’s effect. Just a few years after 

ratification, a unanimous Court upheld discriminatory

state liquor laws against a dormant Commerce Clause

attack, explaining that “to construe the Amendment as 

saying, in effect: [the State] must let imported liquors 

compete with the domestic on equal terms . . . would involve not a construction of the Amendment, but a rewrit- 

—————— 

4 Granholm v. Heald, 544 U. S. 460, 518, and n. 6 (2005) (THOMAS, J., 

dissenting) (collecting state statutes); Brief for Petitioner 33–34 (same).

See also Note, Economic Localism in State Alcoholic Beverage Laws— 

Experience Under the Twenty-first Amendment, 72 Harv. L. Rev. 1145, 

1148–1149, and n. 25 (1959). At least 10 States, including Tennessee,

required a fixed period of residency of one year or more. Brief for 

Petitioner 34 (collecting statutes). 
 

 

 

8 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

ing of it.” State Bd. of Equalization of Cal. v. Young’s 

Market Co., 299 U. S. 59, 62 (1936). Other early cases

reached similar conclusions. See, e.g., Mahoney v. Joseph 

Triner Corp., 304 U. S. 401, 403 (1938) (“[D]iscrimination 

against imported liquor is permissible”); Indianapolis 

Brewing Co. v. Liquor Control Comm’n, 305 U. S. 391, 394 

(1939) (“Whether the Michigan law should not more

properly be described as a protective measure, we have no

occasion to consider,” for “whatever its character, the law 

is valid”). In short, this Court “recognized from the start”

that the Twenty-first Amendment allowed the States to 

regulate alcohol “‘unfettered by the Commerce Clause.’” 

Granholm, 544 U. S., at 517 (THOMAS, J., dissenting).5 

Straying from the text, state practice, and early precedent, and leaning instead on the Amendment’s famously 

sparse legislative history, the Court says it can find no

evidence that §2 was intended to authorize “protectionist” 

state laws. Ante, at 21, 22 n. 15. But even there plenty of

evidence can be found that those who ratified the Amendment wanted the States to be able to regulate the sale of

liquor free of judicial meddling under the dormant Commerce Clause—and there is no evidence they wanted

judges to have the power to decide that state laws restricted 

—————— 

5The Court discounts the compelling evidence of postratification

practice because, it suggests, States may have been relying on the 

Court’s expansive interpretation of §2 in State Bd. of Education of Cal. 

v. Young’s Market, 299 U. S. 59 (1936), rather than their own independent understanding of the Amendment. Ante, at 29. But most of 

the residency requirements were enacted before that November 1936 

decision. Although many of the statutes were codified after Young’s 

Market, a large majority were enacted earlier. Compare, e.g., Wyo. 

Stat. Ann. §53–204 (1945); Idaho Code Ann. §18–130 (1940); R. I. Gen. 

Laws ch. 163 §4 (1938); N. J. Rev. Stat. §33:1–25 (1937); with 1935 Wy.

Sess. Laws ch. 87; 1935 Idaho Sess. Laws ch. 103; 1934 R. I. Laws p. 52;

1933 N. J. Laws p. 1193. 
Cite as: 588 U. S. ____ (2019) 9 

GORSUCH, J., dissenting 

competition “too much.”6 After all, both before Prohibition and after repeal, robust competition in the liquor 

industry was far from universally considered an unalloyed 

good; lower prices enabled higher consumption and invited 

social problems along the way. T. Pegram, Battling Demon Rum 94–96 (1998); Fosdick & Scott 43–44, 81. The 

point of §2 was to allow each State the opportunity to 

assess for itself the costs and benefits of free trade in 

alcohol. Reduced competition and increased prices were

foreseeable consequences of allowing such unfettered state 

regulation, but they were consequences the people willingly 

accepted with the compromise of the Twenty-first 

Amendment.7 

—————— 

6See, e.g., 76 Cong. Rec. 4143 (1933) (statement of Sen. Blaine) (“The 

purpose of section 2 is to restore to the States by constitutional 

amendment absolute control in effect over interstate commerce affecting intoxicating liquors”); id., at 4225 (statement of Sen. Swanson) (“[I]t 

is left entirely to the States to determine in what manner intoxicating 

liquors shall be sold or used and to what places such liquors may be 

transported”); Ratification of the Twenty-first Amendment to the 

Constitution of the United States: State Convention Records and Laws 

50 (E. Brown ed. 1938) (statement of President Robinson of the Connecticut convention) (“[F]undamentally our fight has been . . . for the 

return to the peoples of the several states of their constitutional right to 

govern themselves in their internal affairs”); id., at 174 (statement of 

Del. Simmons to the Kentucky convention) (“The regulation of the sale 

of liquor is a state concern”); id., at 247 (statement of Mme. Chairman 

Gaylord of the Missouri convention) (“We have never been in favor of a 

National Regulation to take the place of the 18th Amendment . . . . We 

believe that each state should work out sane and sensible liquor control 

measures, responsive to the sentiment of the people of each state”); id., 

at 322 (statement of Gov. White of Ohio) (“[T]he control of intoxicating 

liquors presents a problem of first magnitude,” and “[t]he solution of 

the problem will be returned to the several states”). 7The majority worries that giving full effect to §2 might allow a State 

to pass a statute restricting licenses to persons whose ancestors have 

resided in the State for 200 years. Ante, at 22, n. 15. But under parts

of the Constitution that §2 left intact, such as the Equal Protection and 
 

 

 

10 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

That leaves only our modern precedent to consider—and 

even here the initial returns support Tennessee. In 

Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U. S. 

324 (1964), for example, this Court addressed a New York 

law that interfered with the federally regulated sale of

alcohol to passengers departing from an airport, which the

passengers would not receive until they arrived at their

“foreign destination.” Id., at 325. Emphasizing that

“ultimate delivery and use” was “in a foreign country,” this

Court held that the Twenty-first Amendment did not 

permit New York to “prevent transactions carried on 

under the aegis of a law passed by Congress in the exercise of its explicit power under the Constitution to regulate

commerce with foreign nations.” Id., at 333–334. But at 

the same time, the Court took pains to reassure everyone

that the States’ core authority to “restrict, regulate, or 

prevent the traffic and distribution of intoxicants within

[their] borders” remained “unquestioned” and “unconfined” 

by the dormant Commerce Clause. Id., at 330; see also 

Capital Cities Cable, Inc. v. Crisp, 467 U. S. 691, 713 

(1984) (describing “the core §2 power” as a State’s authority 

“directly to regulate the sale or use of liquor within its

borders”).

Consistent with that understanding, this Court in Heublein, Inc. v. South Carolina Tax Comm’n, 409 U. S. 275 

(1972), unanimously upheld a South Carolina law permitting producers to transfer liquor to in-state wholesalers 

only through “resident representative[s].” Id., at 277. 

Because the requirement was an “appropriate element in 

—————— 

Due Process clauses, any state law must bear a rational relationship to 

a legitimate state interest. Besides and understandably, the evidence 

before us suggests that the people who ratified §2 weren’t as concerned 

with States adopting fanciful laws like the majority’s as they were with 

eliminating a very real threat—that judges would continue to use the 

dormant Commerce Clause to meddle with state regulatory authority. 
 

 

 

Cite as: 588 U. S. ____ (2019) 11 

GORSUCH, J., dissenting 

the State’s system” of regulating the sale of alcohol “‘within 

its borders,’” this Court held that the State could enforce 

it “‘unconfined by traditional Commerce Clause limitations.’” Id., at 283 (quoting Hotstetter, 377 U. S., at 330).

To be sure, in even later cases the Court declined to uphold state laws that, in substantial effect, regulated the

sale of alcohol in other states. E.g., Brown-Forman Distillers Corp. v. New York State Liquor Authority, 476 U. S. 

573 (1986); Healy v. Beer Institute, 491 U. S. 324 (1989). 

But those decisions merely tracked the text of the Twentyfirst Amendment, which grants States the power to regulate liquor only “for delivery or use therein.” 

The truth is, things have begun to shift only in very 

recent years. Bending to the same impulses that moved it 

at the beginning of the 20th century, this Court has lately 

begun flexing its dormant Commerce Clause muscles once 

more to strike down state laws even in core areas of state 

authority under §2. So, for example, in Bacchus Imports, 

Ltd. v. Dias, 468 U. S. 263 (1984), the Court considered 

Hawaii’s tax exemption for certain liquor products manufactured in-state. As the Court described it, Hawaii’s sole 

“purpose” in adopting its tax exemption was “‘to promote a 

local industry,’” not “to promote temperance.” Id., at 276. 

And a narrow majority considered this fact fatal because 

the law, in its judgment, did not implicate “any clear 

concern” of the Amendment—even though the Amendment 

was adopted to insulate state regulation from judicial

charges of unduly interfering with interstate commerce. 

Ibid. 

Yet, even under as bold a decision as Bacchus, Tennessee’s residency requirement should survive—and easily. A 

residency requirement may not be the only way to ensure

retailers will be amenable to state regulatory oversight,

but it is surely one reasonable way of accomplishing that 
 

 

12 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

admittedly legitimate goal.8 Residency also increases the

odds that retailers will have a stake in the communities 

they serve.9 As Judge Sutton observed in the proceedings 

below, this same commonsense rationale may explain why 

Congress requires federal court of appeals judges to live

within their circuits, 28 U. S. C. §44(c), and district court 

judges to live within their districts, §134(b). Byrd v. Tennessee Wine and Spirits Retailers Assn., 883 F. 3d 608, 633 

(2018). Surely, Tennessee cannot be faulted for sharing a 

similar view. Of course, Tennessee’s residency requirement reduces competition in the liquor market by excluding nonresidents or recent arrivals. But even that effect 

might serve a legitimate state purpose by increasing the

price of alcohol and thus moderating its use, an objective 

States have always remained free to pursue under the 

bargain of the Twenty-first Amendment.10 

To defend its judgment today, the Court is thus left to

try to wring support from our 2005 decision in Granholm. 

Granholm extended Bacchus and its reasoning to strike

down on dormant Commerce Clause grounds a state law

for disfavoring out-of-state wine producers, holding that 

—————— 

8See Southern Wine & Spirits of Am., Inc. v. Division of Alcohol and 

Tobacco Control, 731 F. 3d 799, 811 (CA8 2013) (Colloton, J.); 

Hinebaugh v. James, 119 W. Va. 162, 164, 192 S. E. 177, 179 (1937); 

Welsh v. State, 126 Ind. 71, ___, 25 N. E. 883, 885 (1890); Note, 72 

Harv. L. Rev., at 1148. 9See Byrd v. Tennessee Wine and Spirits Retailers Assn., 883 F. 3d 

608, 633 (2018) (CA6 2018) (Sutton, J., concurring in part and dissenting in part); Southern Wine & Spirits, 731 F. 3d, at 811. 10See Brief for U. S. Alcohol Policy Alliance et al. as Amici Curiae 5– 

24; Lawson, The Future of The Three-Tiered System as a Control of

Marketing Alcoholic Beverages, in Social and Economic Control of 

Alcohol 32–34 (C. Jurkiewicz & M. Painter eds., 2008); 883 F. 3d, at 634 

(opinion of Sutton, J.); cf. 44 Liquormart, Inc. v. Rhode Island, 517 U. S. 

484, 504 (1996) (acknowledging a State’s legitimate interest in “reducing alcohol consumption”). 
 

Cite as: 588 U. S. ____ (2019) 13 

GORSUCH, J., dissenting 

“Section 2 does not allow States to regulate the direct 

shipment of wine on terms that discriminate in favor of instate producers.” 544 U. S., at 476 (emphasis added). But 

even this holding doesn’t spell doom for Tennessee’s retailer residency requirements. As even the Court today 

acknowledges, “Granholm repeatedly spoke of discrimination against out-of-state products and producers” and did 

not refer more generally to discrimination against nonresidents. Ante, at 27.11 

To claim Granholm’s support, the majority is thus forced 

to characterize Granholm’s framing of the issue before it

as purely incidental—the state laws at issue there happened to discriminate against out-of-state products, so the 

Court just happened to talk a lot about products. As the 

Court seems to read Granholm, then, it really meant to

disapprove any discrimination against out-of-staters. But 

this badly misreads Granholm. The distinction between 

producers and other levels of the distribution system was 

integral to its reasoning and result—in fact, it was precisely 

how Granholm sought to reconcile its result with the

longstanding tradition of state residency requirements. So 

yes, Granholm held that the Twenty-first Amendment 

does not protect laws that discriminate against out-ofstate products, but it also expressly reaffirmed the “‘unquestionabl[e] legitima[cy]’ ” of state laws that require “‘all 

liquor sold for use in the State [to] be purchased from a 

licensed in-state wholesaler.’” 544 U. S., at 489 (quoting 

North Dakota v. United States, 495 U. S. 423, 432 (1990); 

id., at 447 (Scalia, J., concurring in judgment)). And I 

would have thought that restatement of the law more than 

—————— 

11See also Granholm, 544 U. S., at 486 (“States may not give a discriminatory preference to their own producers”); id., at 484–485 (“The 

Amendment did not give States the authority to pass nonuniform laws 

in order to discriminate against out-of-state goods, a privilege they had

not enjoyed at any earlier time”). 
 

14 TENNESSEE WINE AND SPIRITS 

 RETAILERS ASSN. v. THOMAS 

GORSUCH, J., dissenting 

enough to resolve today’s case.

Having now effectively abandoned Granholm’s distinction between products and their distribution and promising to subject both to dormant Commerce Clause scrutiny,

it’s hard not to wonder what’s left of Webb-Kenyon and §2. 

For its part, the Court assures us that it will still allow 

each State “leeway to enact the measures that its citizens 

believe are appropriate” to address public health and 

safety. Ante, at 31 (emphasis added). Yet the Court then 

proceeds to turn around and dismantle the longstanding

judgment of the citizens of Tennessee on just these questions, dismissing them as “protectionist measures with no 

demonstrable connection” to public health and safety. 

Ibid. And it promises it will not sustain any state law 

whose protectionist “effect[s] . . . predomina[te].” Ante, at 

32–33. 

What are lower courts supposed to make of this? How 

much public health and safety benefit must there be to

overcome this Court’s worries about protectionism “predominat[ing]”? Does reducing competition in the liquor 

market, raising prices, and thus reducing demand still 

count as a public health benefit, as many States have long

supposed? And if residency requirements are problematic,

what about simple physical presence laws? After all, can’t 

States “thoroughly investigate applicants” for liquor licenses without requiring them to have a brick-and-mortar 

store in the State? Ante, at 34. The Court offers lower 

courts no more guidance than to proclaim delphically that 

“each variation must be judged based on its own features.” 

Ante, at 28. 

As judges, we may be sorely tempted to “rationalize” the

law and impose our own free-trade rules for all goods and 

services in interstate commerce. Certainly, that temptation seems to have proven nearly irresistible for this Court 

when it comes to alcohol. And as Justice Cardozo once 

observed, “an intellectual passion . . . for symmetry of form 
Cite as: 588 U. S. ____ (2019) 15 

GORSUCH, J., dissenting 

and substance” is “an ideal which can never fail to exert 

some measure of attraction upon the professional experts 

who make up the lawyer class.” B. Cardozo, The Nature of 

the Judicial Process 34 (1921). But real life is not always

so tidy and satisfactory, and neither are the democratic

compromises we are bound to respect as judges. Like it or 

not, those who adopted the Twenty-first Amendment took 

the view that reasonable people can disagree about the

costs and benefits of free trade in alcohol. They left us

with clear instructions that the free-trade rules this Court 

has devised for “cabbages and candlesticks” should not be

applied to alcohol. Carter v. Virginia, 321 U. S. 131, 139 

(1944) (Frankfurter, J., concurring). Under the terms of 

the compromise they hammered out, the regulation of

alcohol wasn’t left to the imagination of a committee of

nine sitting in Washington, D. C., but to the judgment of

the people themselves and their local elected representatives. State governments were supposed to serve as “laborator[ies]” of democracy, New State Ice Co. v. Liebmann, 

285 U. S. 262, 311 (1932) (Brandeis, J., dissenting), with 

“broad power to regulate liquor under §2,” Granholm, 544 

U. S., at 493. If the people wish to alter this arrangement,

that is their sovereign right. But until then, I would 

enforce the Twenty-first Amendment as they wrote and

originally understood it.