The New Wine Wholesalers’ Legal Doctrine

Posted by Tom Wark on Jan 15, 2010

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
legislators.”

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.