Editor’s Note: Today’s post comes from Richard F. Hamm, Professor of History at the University at Albany, SUNY. He is with Michael Lewis co-editor of the forthcoming Prohibition’s Greatest Myths (LSU Press, forthcoming April 2020), which has an essay by Thomas Pegram, who is also cited in Alito’s opinion in the Tennessee case.
So, in late June of this year, I was reading a United States Supreme Court case. Not something unusual for me, as I am legal historian as well as a historian of alcohol policy. Actually what I was reading was the “slip opinion” which used to be the unbound just-off –the-press opinions of the justices, available before the volume of the United States Reports in which the case would be included was compiled and printed. Today they are available on the internet.
The case is one that would interest readers of this blog: it is Tennessee Wine v. Thomas and it concerns how far the second clause of the 21st amendment will reach. The readers of this blog will know that amendment’s first section repealed the 18th amendment, formally ending national alcohol prohibition in the United States. What only a few of you know is that its second section gives states broad powers to regulate alcohol. Based on an important pre-prohibition federal law, the 1913 Webb-Kenyon Act, it reads: “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.” And there as I was reading the dense prose of Justice Samuel Alito for the majority of seven justices, I came across my name and a citation to my first book, Shaping the Eighteenth Amendment (UNC Press, 1995). It’s right there on page 14 and again on page 17, as part of the long discussion of the relationship between the federal government’s commerce power and state alcohol policy.