The New Wine Wholesalers’ Legal Doctrine

Wolfmarshall You've got to appreciate a man and an organization that is willing to stand up and publicly dispute America's great founding jurist John Marshall. Furthermore, you've got to appreciate the balls it takes to oppose the very foundation of American jurisprudence by opposing the doctrine of Judicial Review.

"Judicial Review" is the legal doctrine that Federal Courts possess the right and the jurisdiction to have the final word on whether or not a federal or state law is constitutional. This most well-established legal theory was first enunciated in the United States by Chief Justice John Marshal in the 1803 Supreme Court case of Marbury v. Madison. In fact, the doctrine of Judicial Review goes all the way back to 1610 in England.

So as I said, to stand up and actually come out publicly against Judicial Review takes a particularly courageous, if not imbecilic, person and organization.

So let's hand it to the Wine & Spirit Wholesalers Association and their CEO Craig Wolf who took just such a stand in their statement concerning yesterday's ruling in the 1st Circuit Court of Appeals on Massachusetts unconstitutional direct shipping law. To quote Mr. Wolf:

“This is yet another example of judges believing it is their
prerogative to substitute their individual judgments for the will of
the people of the state as expressed through their elected

What I find most interesting about Mr. Wolf's statement, besides his disregard for established legal theory, is the legal theory he seems to be suggesting in place of Judicial Review. Mr. Wolf implies fairly forcefully that the role of a federal judge is not to judge laws in light of the Constitution, but rather to defer to "the will of the people" in determining if a law is appropriate or, presumably, constitutional.

Just to give you a taste of what this legal theory amounts to, were Mr. Wolf's "Will of the People" legal doctrine to have been adopted at the founding of our nation, rather than the quaint notion of "Judicial Review", it's quite likely that we'd still have "Negro Colleges" and "Whites-Only" college since Brown v. Board of Education would never have been decided. That was the Supreme Court decision that so arrogantly overturned the will of he people of Kansas who put in place a law that provided "separate but equal" collegiate facilities for whites and blacks.

Again, what a courageous stand Mr. Wolf and the Wine and Spirit Wholesalers have taken. You just don't see many folks willing to stand up and say, "well, if the people want it then that's what should be legal."

I suspect however that, sadly, I may be giving Mr. Wolf and the WSWA too much credit. You see, I rather doubt they are merely defending an alternative to Judicial Review. No, I suspect their descent into the territory of dangerously absurd is really nothing more than a public temper tantrum over having been on the losing side of an important wine shipping case.

In fact, I'm almost positive my "temper tantrum" theory of Craig Wolf and the WSWA is the correct one. After all, how else can you account for this statement that is so utterly and completely absurd:

“It is the opinion of WSWA—and indeed other courts—that the 21st
Amendment empowers states to make decisions on how alcohol is regulated
within the states’ borders. The First Circuit decision undermines
states’ authority under the 21st Amendment."

If 21st Amendment that dissolved national Prohibition really did, as Mr. Wolf suggests, "empower states to make decisions on how alcohol is regulated within the states' borders" then it would be perfectly legal for a state to pass laws that prohibited non-whites from being wholesalers or laws that prohibited women wearing Channel # 5 from purchasing Pinot Noir on Wednesdays or laws that only allowed wineries that produced less than 30,000 gallons of wine from selling wine both direct to the consumer and through a wholesaler.

Clearly there are limits to the power granted to the states by the 21st Amendment. And we saw one type of limit clearly explained yesterday in Family Winemakers v. Jenkins court ruling. I just wonder if there is limit to the courage exemplified by Craig Wolf and the Wine & Spirit Wholesalers Association.


11 Responses

  1. Steve Paulo - January 15, 2010

    Unfortunately, the “these activist judges need to respect the will of the people!” argument is brought up by just about every WATB who loses any kind of constitutional argument in any level of the federal courts system, no matter how ludicrous.
    Ballsy? Yes. Original? Not a lick.

  2. Thomas Pellechia - January 15, 2010

    Ah yes, the first casualty of war is…

  3. Bob R. - January 15, 2010

    I went to the WSWA web site and read their press release, then tried to find a way to email them to express my opinion as to their lack of understanding of the American legal system, but that turned out to be impossible.

  4. Brett V - January 15, 2010

    Thank you for this highly entertaining (and pathetic) account of WSWA’s attempt to defy logic and legal precedent in a desperate attempt to further its own agenda. As a Massachusetts resident, I’m ashamed by Mr. Wolf’s remarks. Personally, I believe Mr. Wolf should spend less time working on his man tan and more on his understanding of the concept of “checks and balances”.

  5. EVO - January 16, 2010

    What else would you expect from the group whose other absurd argument is that they are saving the children from buying alcohol?

  6. Charlie Olken - January 16, 2010

    Mr. Wolf is, of course, correct when he says that the decision undermines the States’ authority under the 21st Amendment. We have all kinds of decisions in which one set of rights undermines another.
    The notion that the 21st Amendment was ever intended to allow States to undermine interstate commerce to the benefit of its own producers is nonsense.
    But, of course, we are not surprised at the comments. Now, on to Sarah Palin, another objective voice in the battle for free trade–unless its hurts her election chances.

  7. Mike Castleman - January 16, 2010

    I’m going to ditto on everything said here about WSWA…however…DAWG guys!!…what’s with the dogpile on Palin?
    As far as this topic is concerned i’m not sure she has weighed in or not…let’s dissect her speech and policy statements and how it impacts our affection and/or involvement in the wine world…not her Media charicature…JMTC
    Every interest group has it’s agenda…i am in complete agreement on TW’s charactarization of the canard that is WSWA on this issue of trade and commerce.
    Here is what get’s me excited…the incredible speed of change that has occurred since i started drinking wine to now that i’m making wine and where we will be 5 to 10 years from now…I’m jazzed…it will happen…the dominos are falling.
    Being involved and supporting those that can influence law and policy is the path to progress…at the end of the day, as bothersome as it may feel…we gotta go to town and make the case and try to influence…let’s hope we don’t evolve to be a next gen WSWA…money and power…toxic mixture.

  8. Thomas Pellechia - January 18, 2010

    Sarah Palin is speaking in April at the WSWA convention and her topic is rumored to be: free enterprise.
    Get it? Three Tier System/Free Enterprise/Sarah Palin/get government off our backs???
    But she proves the enterprise portion of the phrase, as she will get a cool $100K to make no sense for twenty minutes.

  9. Mark - January 19, 2010

    It isn’t even really an interesting discussion any more, the will of the people argument is a bunch of bull. Have we been allowed to vote? Has alcohol distribution been a point in any political campaign. What do the polls say? Oh yeah they say unequivocally that people want more choice in their wine shipments, not less.

  10. Alex A - January 19, 2010

    Has anyone ever seen the movie “Thank You for Smoking?” Here you have the art of spin, influenced by $$$ dictating that states have the power to overrule the constitution of the US. Its plain and simple, the writing is on the wall and states can no longer afford this business.
    And Sarah Palin again once proves that she has no idea about what she’s doing…
    Thank you Tom Wark for putting your efforts to making “Free the Grapes” really free for all of us. Not just a family of winemakers.

  11. Mike Castleman - January 22, 2010

    I guess the key phrase there is “rumored”…
    I’m not saying i’m a Palin groupie (full disclosure: I’m clearly in the same social mindset but I think the jury is still out on many of her policy positions that specifically relate to what we are discussing here), i’m just sayin’ that I’ll give anyone the opportunity to make there case…maybe she will say something that is imbecilic…maybe her comments will challenge the status quo.
    I’m inclined to go with what she says and does rather than what people think she might say on this topic…if she has already weighed in on this then i’m all ears and happy to heavily disagree if her position is counter to my views.
    My point was that folks seemed to be conducting a dog pile on her speach at the WSWA event four months before the speech…feels a little premature that’s all…
    I still think that the dominos are going to fall sooner rather than later…

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