AUTHOR: Dave McIntyre TITLE: A Not-So-Supreme Victory DATE: 6/04/2005 11:05:00 AM ----- BODY:

The phrase “Supreme Court ruling” carries a sense of finality about it, the idea that the wisest jurors in the land have decided important issues and instructed us lesser mortals how to behave. Last month’s high court ruling on interstate wine shipping, however, carried no such authority. The court’s gavel clobbered both sides with equal force, sort of a high-stakes game of “Whac-A-Mole.” Wine lovers who muttered “Commerce Clause” like a mantra and hoped the Court would grant us immediate rights to pick up the phone and have our favorite Cabernet delivered to our doors from the winery were naïve, despite the initial rush of media reports that hailed a victory for wine drinkers and small wineries. So were the wholesalers and political Philistines who put their faith in the 21st Amendment as trumping the Commerce Clause. The Commerce Clause means equality. The 21st Amendment means states’ rights. On the direct shipping issue, these two constitutional clauses contradict each other. But the Supreme Court could hardly declare the Constitution unconstitutional. Instead, the Court threw the debate back to the States, upholding the 21st Amendment. But they also decreed that state laws must be equal, thereby upholding the Commerce Clause. This threatens the viability of small wineries in states with farm winery laws, such as New York, Virginia or Michigan, where the wineries have benefited from favorable treatment on in-state markets. New York’s Governor George Pataki has introduced legislation to liberalize out-of-state shipments, while authorities in Michigan and Indiana are threatening to end all shipping altogether. Small wineries in California have little to lose and everything to gain as the direct shipping fight heats up again in state capitals. Small wineries elsewhere have much to lose, for even if they are allowed to maintain in-state privileges, they will now have to compete on a level playing field with their more famous rivals to the West. Be careful what you wish for ...

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