Evening star., 1943-11-20


States, handed
down by Justice aaaV ~
Rrandeis on No David Lawrence.
vcmber 9, 1886, the right of the
States to exclusive regulation of the
manufacture and sale and trans
portation of liquor was virtually af-
firmed.
In the case in question, known
as state Board of Equalization of
California versus Youngs Market
Company" the State of California
actually levied what amounted to
a tariff barrier against the impor-
tation of beer and insisted also on
fee for the privilege of manufac-
turing beer. 1t was argued in op-
position that this was a violation
of the commerce clause of the Con-
stitution, which gives Congress the
right to regulate commerce between
the States.
Justice Brandeis' Ruling.
Justice Brandeis ruled that under
the 21st amendment to the Con-
stitution what would have been
illegal before under the commerce
clause now was lawful. He did not
point out how much of the police
power of the other provisions of the
Constitution was wiped out by the
2lst amendment because, he de-
clared, it was not necessary in this
case to make any such generaliza-
ton.
1t will be recalled that the 18th
amendment prohibited the manu-
facture and sale and transportation
of intoxicating liquors and that
Congress was given concurrent
power with the several States to
enforce this particular provision. 1t
will be recalled also that the 21st
amendment merely stated that the
18th amendment had been repealed
and added a section which reads:
The transportation or importa-
ton into any State, Territory or
possession Of the United States for
delivery or use therein of intoXicat-
ing liquors, in violation of the laws
thereof, is hereby prohibited"
Thus the States may legalize any
of the practices now being INDUCED
in by liquor-selling companies, even
if those practices happen to be in
violation of Federal antitrust laws
relating to distribution or price-f1X-
ing or any other monopolistic ac-
tivities.
The liquor traffic, in other words,
Is solely the responsibility of the
States and it is doubtful how much |.
any Senate committee can do to-
ward the drafting of legislation as
result of the forthcoming inquiry
because no such legislation can
come into conflict with State laws.
At the time of the Brandeis de-
cislon, many persons felt that the
ruling was mistake because it
seemed to throw into doubt the
numerous decisions of the courts on
antitrust and monopoly which had
grown up under the commerce
clause. The liquor industry at the
time was in large part disappointed
by the result and, in fact, fought
the case to the highest courts in the
hope of getting a ruling that the
commerce clause was still in effect
Notwithstanding the twenty first
amendment.
Language Not Clear.
The language of the Brandeis de-
cision is not clear as to how much
scope is covered. While some people
have argued that the entire COM
merce clause has been eliminated
from effect on the liquor industry's
operations, there are others who
insist that the commerce clause is
still operative wherever the States
have not legislated specifically in
regulating the liquor traffic.
The point is an interesting one
FOR another reason. Ordinarily the
fourteenth amendment Is invoked to
insure equal protection of the citizen
as against discrimination by the
States. Justice Brandeis said
The claim that the statutory pro-
visions and regulations are void un-
der the equal protection clause may
be briefly disposed Of. A classical
ton recognized by the twenty first
amendment cannot be deemed for
bldden by the fourteenth"
This means that the States are
supreme and that even the four
teenth amendment, like the COM
merce clause, cannot interfere with
the rights of the States to deal as
they please with liquor sale or man
ufacture or transportation.
When Federal prohibition was re-
pealed, was all Federal control re-
pealed. too? That's sharp ques-
tion on which the activities Of the
Senate Investigating Committee and
the Department of Justice may some
day bring an interesting answer.
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