Experts Say DTC Wine Shipping Causes Cirrhosis of the Liver

In the course of the states and wholesalers attempting to defend against lawsuits challenging discriminatory and protectionist laws that bar consumers from receiving wine shipments from out-of-state retailers, various legal briefs are filed that argue the law. But also, the state uses “expert testimony” to buttress its claim that bans on wine shipping protect the health and safety of the citizens that are banned from receiving shipments.

A lot turns on this “expert testimony” as it informs the various courts hearing cases challenging wine shipping bans. The Supreme Court has been clear that solid evidence must be presented by the state to prove that their discriminatory laws are necessary for health and safety reasons. Writing in the 2019 Tennessee Wine v Thomas Supreme Court case, Justice Samuel Alito explained that the burden of proof to show a discriminatory law benefit the health and safety of the public fell upon the state and that “mere speculation’ or ‘unsupported assertions’ are insufficient to sustain a law that would otherwise violate the Commerce Clause.”

I thought it might be interesting to look at the kind of information that is provided to various courts by the experts used by the states in their attempt to offer more than just speculation and assertions that the bans are shipping are important to protecting the health and safety of a state’s residents. The following statements come from expert testimony provided by the State of North Carolina, which is defending itself against charges that their ban on wine shipments from out-of-state retailers violates the Constitution’s Dormant Commerce Clause (B21 Wines v Guy). Keep in mind, North Carolina allows its own wine retailers to ship wine to North Carolinians and also allows both in-state and out-of-state wineries to ship wine directly to North Carolinians.

“North Carolina tax rates are higher than those of some other states, creating the potential for tax avoidance through cross-border shipping. Tax avoidance would reduce state revenues, which do not currently cover the costs to the government or to society of alcohol-related harms.”

Translation: Some people might ship into North Carolina and not pay taxes. This is an assertion without evidence proving the point.

 

“Even if out-of-state retailers did pay North Carolina’s alcohol excise and sales taxes, increased competition from large retailers in other states where volume discounts are allowed, unlike North Carolina, and opportunities for other products to be shipped and sold with alcoholic beverages along with the use of shipping programs such as Amazon Prime would likely result in reduced prices for alcohol products as well as unfair competition with North Carolina retailers.”

Translation: Volume discounts in some states mean wine sold by some out-of-state retailers might be less expensive so long as shipping is free. This is an assertion and mere speculation.

 

“Reduced prices of direct-shipped, and potentially other, alcoholic beverages in North Carolina would lead to increased alcohol use and binge drinking for both youth and adults and would also increase a number of alcohol-related problems, including traffic crashes, crime and mortality from accidents, cirrhosis and other alcohol-related causes.”

Translation: If consumers are allowed to buy and receive shipments of wine from out-of-state retailers at a price that is lower and doesn’t include shipping charges, some number of those people buying wine direct from out-of-state retailers will crash their cars and die from cirrhosis of the liver. This is speculation.

 

“Harms to consumers from prohibiting out-of-state retailers to directly sell and ship wine to North Carolina consumers are likely small and applicable to few consumers. Wholesalers can obtain many products as special orders and smaller wineries can already direct ship. While there are a large number of rare products that can be difficult to obtain there are relatively few consumers who are interested in these. Further, any “harm” to consumers through having to own or drink a wine product that is available at a similar price in North Carolina instead of one that is not would seem to be minor in most cases. The potential harms from opening the market generally to out of state retailers would be expected to be more substantial and to negatively impact many more individuals in North Carolina.”

Translation: Can’t find what you want in North Carolina? Too bad. You represent a minority of wine drinkers. This isn’t speculation or an assertion. It is an argument that harms that come to a small number of people are really no harm at all. Think deeply about the implications of that philosophy. It’s not pretty.

 

“Harms to consumers from prohibiting out-of-state retailers to directly sell and ship wine to North Carolina consumers are likely small and applicable to few consumers. Wholesalers can obtain many products as special orders and smaller wineries can already direct ship. While there are a large number of rare products that can be difficult to obtain there are relatively few consumers who are interested in these. Further, any “harm” to consumers through having to own or drink a wine product that is available at a similar price in North Carolina instead of one that is not would seem to be minor in most cases. The potential harms from opening the market generally to out of state retailers would be expected to be more substantial and to negatively impact many more individuals in North Carolina.”

Translation: Shipments from out-of-state retailers is a slippery slope. Pretty soon, North Carolinians will be orderilng real liquor and more car crashes and cirrhosis of the liver will be visited upon North Carolinians. This is speculation. Pure speculation

 

“Allowing direct shipping by out of state retailers would significantly undermine North Carolina’s mandated three-tier system.”

Translation: The three-tier system is the only thing standing between order and chaos. 

As you read some of the statements made by the expert recruited by the State of North Carolina to demonstrate the harm that will come to the health and safety of the state’s residents if out-of-state wine retailers are allowed to ship into the state, you are probably wondering, “how the hell have the retailers not won every single case they bring if this is the quality of the quality of the “proof” being offered up?” It’s a legitimate question.

To date, those bringing cases to challenge discriminatory, anti-shipping laws have lost their lawsuits in two important cases, one against the State of Michigan in the 6th Circuit Court of Appeals and one against the State of Missouri in the 8th Circuit Court of Appeals. What is notable about both those cases is the judges in both cases failed to even examine the evidence, let alone the quality of the evidence offered by the state in defense of its anti-shipping laws. Instead, they ruled that the states merely had to assert their anti-shipping law protecting the health and safety of residents and was therefore legitimate. They also claimed that these anti-shipping laws were not discriminatory at all because both in-state and out-of-state retailers are treated equally since all retailers had to have storefronts in the state in order to ship wine to residents of those states. You are invited to think deeply about the implications of that last assertion by some courts.

Finally, it is notable that in North Carolina and other states where the legal defense of anti-shipping laws have included expert testimony, that testimony has not included recognition that these states already successfully regulate out-of-state wineries that, presumably, would create identical problems speculated about above where retailers are concerned—and yet the problems they speculate do not occur. Nor does any of the expert testimony imagine a world in which out-of-state retailers are regulated under a similar permit system that currently regulates how winery shipping is allowed.

What all this should tell you is that the outcome of the wine shipping lawsuits turns on the legal arguments, not the expert testimony. If it were just about the testimony, these cases would be over and done with.

There are currently six lawsuits in various states challenging bans on wine shipments from out-of-state retailers. I should note that I’ve served as an expert witness in a few wine shipping cases. To my credit, In no instance have I ever claimed that DTC wine shipping causes cirrhosis of the liver.

 

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48 Responses

  1. Jim Ruxin - May 3, 2021

    Amazing how much BS clogs our courts with poor logic, unsubstantiated claims and false information.

  2. acv - May 4, 2021

    Was calling it a product of White Supremacy unavailable? Asking for a friend.

  3. Jim Ruxin - May 4, 2021

    Dear ACV (since you have not the courage to print your name)–

    Your jab was aimed at political correctness for some reason. The discussion is only about large financial interests like local distributors who hire lobbyists and make financial contributions to your White Supremacist (just kidding your white ass!) politicians to keep themselves in power, their pockets full, and consumers with fewer choices of more wines at lower prices.

    It is also about honesty in court presentations. Sure that is considered a virtue in the Federalist Papers somewhere.

    And finally, it is just about wine, supporting growers and producers to be as free as other commercial interests to ship across state lines and PAY state sales taxes.

    Pinheads fail to see that the state and local governments will not be losers. Just lobbyists and politicians. Distributors will actually have to work to earn a living at less than the customary 35% markup.

    Change is tough to swallow. Get used to more fairness in our economic and vinous lives.

  4. Donn Rutkoff - May 4, 2021

    If I read this right, an out-of-state retaiier can open a tiny 500 sq ft store in the lowest rent (properly zoned) bldg, and then can sell and ship to all consumers in the state. So, all the extra drunk driving, liver, etc. that will happen from the lower prices of the out-of-state retailer, are acceptable in the state as long as the retailer has one front door, one toilet, and 2 parking spaces in the state. If so, now it is perfectly clear. The State Must Protect The Consumer. Tax revenue is the tool to protect the consumer. Onward and Upward???

  5. Wesley D Hagen - May 4, 2021

    First in Flight, might as well be PN or Mississippi for wine.

  6. acv - May 5, 2021

    Jim, I lived in LA from 1999 to late 2014. I am sure we’ve meet…. because I have been brilliant for an exceedingly long time in the wine world. I do not recall a conversation with you but who knows. I traveled in all the cool circles.

    I keep forgetting that humor is a casualty too of the woke culture. Mea Culpa.

    I would say I am curious how you assumed I may be white (white ass) …but honestly, I’m not curious. A Democrat – and you are – making an overtly racist statement and being allowed to get away with it is where we are in 2021.

    Now, to the article… I would say that the argument from the state’s perspective is that States are given the latitude to regulate behavior. So, one state can say you can be married at 14 without parental consent….one state can say you can drive with a learner’s permit at 15….one state can say you can drink at 18, etc.

    So, their (the states’ case) aim is the public safety doctrine that is as dormant of a doctrine as the commerce clause is in the constitution. That is why the federal government can not mandate one policy for the China Virus. Each state gets to decide how best to protect its citizens.

    What is a country but a place where the people get to decide from themselves about the laws that will operate in the country they live in?…..and in our federal system that means the states have a say – especially the way that stupid 21st amendment was written.

    Now, before I go further. I have advocated a plan…somewhere on the Fermentation blog on how to open up more broadly the 3-tier system. So, before you assume I am with the states… I’m not. Big government is an idea of the left like Fascism, Communism.

    But unlike the low information voter on the Left…..I appreciate understanding the other side’s argument before I try and attack it. That’s why Samuel Alito (awesome SCOTUS) points out so eloquently that If you are going to talk trash about threats to public safety…it better be able to stick. We need more of that from SCOTUS today.

    I suppose if I were thinking about objections to applying the commerce clause verse the public safety doctrine it would look remarkably like the current debate on what “is” proper public safety protocols when it comes to the Wuhan Virus…or how do you spot Pornography. Public safety you ask? “I know public safety when I see it.”

    Change is tough to swallow. That’s why the left can’t let go of all the progress of the last 50 years….let alone 400 since the Magna Carta. But I believe in you, Jim. You’ll get there. xoxoxo

  7. Jim Ruxin - May 5, 2021

    ACV–

    I see you still have no name. Must be you fear backlash.

    Your legal views, counselor, are a bit anemic for the argument. They reflect a defense of states of states rights, only when they are convenient.

    As in much of serious Conservative thinking you are ignoring the federal right to control interstate commerce. We are a much different nation and the world a much different place than in the late 1700s.

    We face issues the founding fathers could not have imagined, and to cite Alito (and I am sure you are a fan of Scalia as well) is to remain stuck in a literal world of horses and buggies, when it took three days to get from Monticello to Washington DC. Of course the locals had a better idea of what was good for them on local issues.

    But the speed of communication and information today has made big changes in our expectation of fairness and equality. The scoundrels can no longer hang out in Michigan or the low population red states to restrict voter’s rights, to oppose reasonable gun safety laws, to deny climate change, to uphold gerrymandering, census fixing, and many social inequities that favor white Christian men, especially those with tattoos, AR-15s, full body armor and camo outfits rampaging through the Capitol.

    I admire your commitment to learning more about other points of views. But you do sound like you are too stuck in the past to see the present.

    I do not rely on the medical authorities in Idaho to dictate my clinical guidance, when that world requires so much research, intellectual firepower, and MONEY to support proper research. Only the feds have the resources to protect us all equally with information we need to stay informed and make our own choices on life threatening matters.

    It is exactly why Trump’s INACTION in February and March of 2020, allowed the virus to take hold in the US. The virus won, thanks to his politically motivated posturing not to support masking and social distancing, politicizing good public health policy to feed his base red meat.

    Your argument supporting the three tier system is based on too many biases and no longer valid constitutional concerns, that it does not hold water, let alone wine.

  8. acv - May 5, 2021

    Jim, to start….just read Section 2 of the 21st amendment. You are a learned man…..live up to that title.

    21st Amendment
    Primary tabs
    Amendment XXI
    Section 1.
    The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

    Section 2.
    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.

    Section 3.
    This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.

  9. acv - May 5, 2021

    What’s wrong with Tattoos? And, trying to peg me as a defender on the 3-Tier system is laughable. But you are engaging in some sort of dialog in hopes of easing the anxiety and the loneliness of lockdowns. So, there’s that……

  10. Jim Ruxin - May 5, 2021

    Nameless ACV–

    Let’s not besmirch Tom’s usually civil website with your antics and insults. State your name if you want any credibility. Otherwise people may think you are a learned person.

  11. Donn Rutkoff - May 5, 2021

    What are you 2 folks talking about? Why here? Go to FB. Get banned. Get a life. Unequal treatment of the consumer, depending on who the consumer wants to do business with, is the issue here. Or am I illiterate or just confused what blog this is?
    Tom, can you port those 2 folks over to an invisible web site to play kiddiegarten in? Please note, I do not assume they are male or female, or even real or Elon Musk inspired simulations. Gesundtheit.

  12. acv - May 5, 2021

    Men are never so likely to settle a question rightly as when they discuss it freely. — Lord Macaulay

    Hi Dan, apparently you missed the debate on whether we have a living constitution (Jim’s point) or an originalist perspective on the constitution and its amendments. Or how one might balance public safety and the commerce clause given the parameters of how the 21st amendment was written and ratified.

    I understand the salaciousness of the back and forth was too much to resists focusing on. Ignore the arguments and police the language. Forget that speech tends to be the pressure release value that we have as a Society. I don’t have FB….and seeing the headline today from FB…..I’m all the wiser for that choice. Mea Culpa for the hurt you felt. xoxoxo

  13. Jim Ruxin - May 5, 2021

    Thanks, Donn. You are so right. I can’t help but engage with these Neanderthal thinkers. I’m done.

  14. Jim Ruxin - May 5, 2021

    Donn–

    At last acv and IU can agree on something.

  15. VVP - May 6, 2021

    ACV,

    Since year of 2000 there is also Section 4 in Amendment XXI which allows us to understand Section 2 better.

    a) The transportation or importation into any State is not prohibited in general, but only in certain cases.

    b) Not in violation of the law in general, but in violation of law that is a valid exercise of power vested in the States.

    and

    c) A State must prove by a preponderance of the evidence that a violation of State law has taken place or is taking place.

  16. VVP - May 6, 2021

    Amendment XXI is nothing, but amendment to U.S. Constitution. Without its Enforcement Act added in 2000 it wasn’t even enforceable. The Act, however, did not give to the State any additional power. It clearly reflects in the Act’s text. The TTB is vested with the authority to regulate interstate traffic of alcohol. The Webb-Kenyon Act 27 U.S.C. 122 and 18 U.S. Code §§ 1262-1265 will be enforced by federal agency in connection with a valid State law. In the same year of 2000, the TTB’s predecessor Bureau of Alcohol, Tobacco and Firearms (ATF) has received a number of requests from various States for the assistance in the enforcement of State alcoholic beverage laws. The ATF ruled that while it is vested with authority to regulate interstate commerce in alcoholic beverages pursuant to the FAA Act, the extent of this authority does not extend to situations where an out-of-State retailer is making the shipment into the State of the consumer. After ATF was transformed TTB the ruling remains unchanged. There is no violation when an out-of-State retailer is making the shipment into the State of the consumer. Selling to consumers is the only business of retailers and there is no shipping license exists for retailer. However, if it is not the only business, and retailer holds a license in any other tier, then it is in question if such “retailer” can ship interstate.

  17. acv - May 6, 2021

    I resisted the first post “under the harmless doctrine” sometimes being harmless is a good thing. But this 2nd post is just as ridiculous as the first. There is no section 4 to the 21st amendment. Once an amendment is passed that is the text. You do not get to add on sections when no one is looking. I would expand on this point further…. but I cannot find the will. The fact that you think section 4 was created 60+ years later after the states ratified the 21st Amendment is in the realm of craziness.

    Let us address this instead. >> “Without its Enforcement Act added in 2000 it wasn’t even enforceable. The Act, however, did not give [to] the State any additional power. It clearly reflects in the Act’s text. The TTB is vested with the authority to regulate interstate traffic of alcohol.” <>Clearly reflects in the act’s text…the TTB. <<… Even in your imaginary 4th Section to the 21st amendment that you post above the TTB is not “clearly” mentioned anywhere.

    I appreciate the “free discussion of ideas” you are engaging in. But changing language to suit your cause or argument is to engage in fraud. To use the text in some court ruling that interpreted the 21st amendment in a particular way…. does not change the nature of the 21st amendment for all Judicial appointees below SCOTUS. (And even this is not an absolute)

    I am more than willing to challenge the conventional orthodoxy of how the 21st Amendment is applied. But we must start by recognizing that we are in a bit of a hole precisely by how the text is written. Fortunately, as Tom pointed out…. states do their fair share of shooting themselves in the foot.

    For me, the true heretical thought is to pass a new amendment that supersedes the 21st Amdenmentt’s language that was designed to supersede the language of the 18th amendment.

  18. acv - May 6, 2021

    I resisted the first post “under the harmless doctrine” sometimes being harmless is a good thing. But this 2nd post is just as ridiculous as the first. There is no section 4 to the 21st amendment. Once an amendment is passed that is the text. You do not get to add on sections when no one is looking. I would expand on this point further…. but I cannot find the will. The fact that you think section 4 was created 60+ years later after the states ratified the 21st Amendment is in the realm of craziness.

    Let us address this instead. >> “Without its Enforcement Act added in 2000 it wasn’t even enforceable. The Act, however, did not give [to] the State any additional power. It clearly reflects in the Act’s text. The TTB is vested with the authority to regulate interstate traffic of alcohol.” <>Clearly reflects in the act’s text…the TTB. <<… Even in your imaginary 4th Section to the 21st amendment that you post above the TTB is not “clearly” mentioned anywhere.

    I appreciate the “free discussion of ideas” you are engaging in. But changing language to suit your cause or argument is to engage in fraud. To use the text in some court ruling that interpreted the 21st amendment in a particular way…. does not change the nature of the 21st amendment for all Judicial appointees below SCOTUS. (And even this is not an absolute)

    I am more than willing to challenge the conventional orthodoxy of how the 21st Amendment is applied. But we must start by recognizing that we are in a bit of a hole precisely by how the text is written. Fortunately, as Tom pointed out…. states do their fair share of shooting themselves in the foot.

    For me, the true heretical thought is to pass a new amendment that supersedes the 21st Amdenmentt’s language that was designed to supersede the language of

  19. acv - May 6, 2021

    Is the 19th amendment enforceable? It was ratified giving women the right to vote…. but you know maybe we can tell females in NY or IL….we do not recognize this right they supposedly have to vote given to them by the 19th amendment.?? How about the 13th amendment freeing slaves? Care to tell any black person they are still slaves, and that the 13th amendment isn’t enforceable?

  20. Jim Ruxin - May 6, 2021

    If you don’t like the BS from ACV, the nameless Constitutional expert, then stop baiting him blather on about his ignorance.

  21. Veux Veux Pas (VVP) - May 7, 2021

    We aren’t arguing. Arguing with idiots is not possible and impermissible. We are just stating facts.
    The TTB’s Statutory Authority:
    * The Internal Revenue Code of 1986, 26 U.S.C. (IRC):
    * Chapter 51 (Distilled Spirits, Wine, and Beer);
    * Chapter 52 (Tobacco Products and Cigarette Papers and Tubes); and
    * Sections 4181 and 4182 (Firearms and Ammunition Excise Taxes);
    * Federal Alcohol Administration Act, 27 U.S.C. chapter 8 (FAA Act), including:
    * Alcohol Beverage Labeling Act of 1988 (ABLA); and
    ** The Webb-Kenyon Act, 27 U.S.C. section 122.

    On October 28, 2000, Congress passed the 21st Amendment Enforcement Act allowing state attorneys general to bring civil action in federal court against out-of-state entities to enforce violations of their state laws relating to the importation or transportation of alcohol.
    The text is added at the end of 27 U.S.C. section 122.

    SEC. 2004 (4). TWENTY-FIRST AMENDMENT ENFORCEMENT.

    Nowhere you can find that authority to regulate interstate commerce or interstate alcohol trafficking is passed to the States.

    SCOTUS? We know a lady who traveled from New York to Chicago by steamboat in 1928 just being 10 old. These days she still believes that there is steamboat navigation between those cities.

  22. Tom Wark - May 7, 2021

    VVP,

    I presume, then, that your position is that the Supreme Court got it wrong in Granholm and Tennessee Wine when they note states have the right to regulate interstate commerce in alcohol in a non discriminatory way.

  23. Veux Veux Pas (VVP) - May 7, 2021

    We went through Granholma and Tennessee Wine again, Tom, but we don’t see anywhere in both texts that the States have the right to regulate interstate commerce in alcohol. Instead, we found more than dozen statements that States are prohibited any discrimination against interstate commerce, and one that says that States “usurp the authority to regulate interstate commerce”, and the Court have the full force to strike down those States laws.

  24. Donn Rutkoff - May 7, 2021

    A Reply to Jim. I’m pasting this quote from Jim. Scares the hell out of me.

    “Only the feds have the resources to protect us all equally with information we need to stay informed and make our own choices on life threatening matters.”

    I seem to recall stories in the news, a few years ago, about military veterans of our armed forces, dying of ailments, while waiting for the Federal Government doctors in the VA system to administer those choices. I seem to recall various officials in our Federal Govt., such as Jim Comey, advising us that the newly elected President was a threat to me because he was actually installed by Russian advertisements in Facebook. Private enterprises such as Fedex and UPS run circles around the Federal Govt. Virus research was conducted by private enterprise, the Federal Govt. made funds available to ALL COMERS.. To think that the Federal Govt. is always the best source of info and knowledge, on any matter, is ludicrous, nor do I think is in our body of laws. The 10th Amendment seems to put a lid on the concept of Federal Supreme Knowledge. I am not a lawyer. Neither was G. Washington. And A. Hamilton, here is an easy to find item: “Hamilton was admitted to the bar in 1782 — after just six months of self-study, an exercise that he described in a letter to Marquis de Lafayette as “studying the art of fleecing my neighbors.” “. And finally, the value of lawyers with college educations, was satired in the May 14, 1722, New England Courant, by Silence Dogood.

    Meanwhile, if out-of-state wineries DTC does NOT generate added liver disease, and there exist in-state retailers, it is still a mystery how many added livers will be destroyed by allowing out-of-state retailers the same rights as wineries and in-state retailers. I think that is the issue here: Habemus Corpus. Lessee some evidence.

  25. Veux Veux Pas (VVP) - May 7, 2021

    This is where you are mistaken, Donn Rutkoff. The Direct Shipping permit gave to wineries the same right retailers already have – to sell to consumers. Not every winery can afford 50 permits though.

  26. Jim Ruxin - May 7, 2021

    Donn–

    In matters of administration of services, the feds have been clumsy and ineffective in many ways, regardless of who is in power. But no need to fight with the disgraceful history of the VA’s treatment of veterans. Also in justice, taxation, income inequality, voting rights, gerrymandering etc.

    But in matters of science, the feds have and have used their greater resources to improve our understanding in so many ways of threats to our health, the environment and our defense.

    I am sorry but one state’s ridiculous claims about cirrhosis can only be scene as idiotic reasoning buy an agenda and lobbyist driven position on DTC.

    So please don’t extrapolate my specific hyperbole to your whole list of crimes committed by the government in any era. We should be striving continually for better government and better information on which to base policy.

    Our nation and the world are so complex now, and the problems we all face so onerous, that do you really want amateurs, conspiracy theorists, political black arts operatives, and lunatics like QAnon having any effect on serious policy and law?

    So forgive me for my over dramatization of the obnoxious claims of the DTC opponents. They are the real culprits, both intellectual and political, in this dispute to give consumers more freedom of choice and lower costs, as well as small producer a better chance to compete in the market place.

    The free market is supposed to create efficiencies, not line the pockets of politicians, lobbyists, and other other craven individuals not to be trusted,

  27. Donn Rutkoff - May 7, 2021

    Hi VVP. Aren’t we discussing the state law,, not Federal ? I am unclear what your comment means. If your argu is Fed trumps State, is that relevant? The state here is arguing added livers go bad if retailers have same rights as wineries?

  28. acv - May 7, 2021

    Let us define a few things, shall we?

    • An Act of Congress AFAIK can do such things as establishing an agency or funding for an existing body, etc. it may contain some “laws”, but “law” is not the only way that Congress can act.

    • A law usually proscribes or prescribes conduct by, or status of, an individual, a business or corporation, or a department or agency of the U.S.

    • An amendment changes existing law. The most officially recognized example is, of course, the Bill of Rights, the first Ten Amendments. But other laws may also be amended. If amended, their effect or rationale would then be changed.

    The enforcement of the law or act is the domain of the executive branch. Laws are written by the legislature, and it is the job of the Executive branch to interpret existing laws and the constitution on how to enforce this law.

    Whether Congress and the Executive branch get it right falls at the feet of SCOTUS.

  29. Jim Ruxin - May 7, 2021

    Why do people keep feeding ACV (Alternative Constitutional Values) red meat? Now you let him gloat on the Supreme Court and its unvarnished biases.

    ACV always overlooks the most major asset of a democracy besides laws, executive actions and his own right to make a fool of himself, and that is the WILL OF THE PEOPLE to determine their lawmakers, and indirectly appointed officials.

    This takes a little longer to muster the public outrage to overcome the obstacles thrown before us a nation. Especially true now when blowhards like ACV distract the public discourse and this forum from clear thinking.

    Best to let people like this go back to their caves and chew on their beards in peace in front of their campfires about how much grandpappy hated the feds because he taxed their income, and other such vital issues. They should be as free as anyone to vote against their own best interests if it suits them.

  30. acv - May 7, 2021

    An act is a bill that has been passed by Congress. It is said that a bill, once passed, is enacted.

    A law is an act that the President has signed. The exception to this is when the President vetoes it and Congress subsequently overrides the President’s veto.

    An amendment is a change. Therefore, an amendment to a bill changes the bill. Keeping the same idea, an amendment to the law changes the law.

    When they talk about the “Administrative State” aka the “deep state”…aka “the swamp”….these folks are just a bunch of technocrats who feel their title and maybe their degree makes them an authority on a sphere of knowledge. It doesn’t. They’re no more rational than this back and forth bickering on our thread

    First, the media ruined their reputation….and now with the China Virus and the science (or lack thereof) …of lockdowns/masks/ vaccines…. now the scientists have screwed their reputation. The beauty of science is that is precisely “falsifiable” That’s what makes it science. When you say there is no room for discussion that science is settled…. then it becomes simply a religion. As in “Religious dogma can’t be challenged you heretic” ….and so when science can’t be challenged (hell, we can’t even entertain other thoughts in re: the science of lockdowns, etc)….it feels cultish in its aim and suppressing debate.
    The 21st Amendment has 3 sections as ratified. Despite what the deep state

  31. Veux Veux Pas (VVP) - May 7, 2021

    Donn Rutkoff, we are discussing “experts” here. The State law applies only to the State it enacted. There is nothing to discuss. This is why we point to Statutory Authority if somebody doubts.

    We also unclear what your comment means. What rights retailers don’t have, but wineries do? To produce wine?

  32. Jim Ruxin - May 7, 2021

    Please chew on this on another website:

    https://irishliquorlawyer.com/liquor-industry-insights/will-the-bully-state-prevail-over-the-constitution/

    Many otherwise intelligent people will claim that states’ rights are obviously sovereign and unassailable only when it is convenient for them.

  33. Donn Rutkoff - May 7, 2021

    To VVP, and I guess to Tom W: I think the issue is the assertion without evidence, by this one state, that allowing out of state retailers to sell via DTC into the state, will cause harm, even tho out of state wineries are allowed to sell, via DTC, into the state. Is it permitted to discriminate between these specific 2 types of sellers? If the state is allowed to restrict trade this way, does it require evidence or not to back up the claim? If the Fed courts want to allow this restriction, without any evidence, then count me on the side who think the Fed court is wrong. If I am still confused as to what the issue is here, maybe I’ll skip the whole dang thing and pop open my 2005 Dugat Bourgogne that I pulled out of the cabinet last night.

  34. Tom Wark - May 7, 2021

    VVP,
    Concerning whether the Court ruled incorrectly in Granholm and Tennessee Wine you wrote this:

    “we don’t see anywhere in both texts that the States have the right to regulate interstate
    commerce in alcohol”

    You are unqualified to opine on this issue of the constitutionality of wine shipping in the United States. If you cannot find where both cases allow that a state may ban interstate shipments from both out-of-state retailers and wineries if done in non discriminatory way, then you are simply unqualified to opine on this.

    Put another way….NEVER MIND.

  35. Veux Veux Pas (VVP) - May 7, 2021

    Tom Wark, we trust other sources than you, and they seem to be more reputable. The 21st. Amendment now leaves a state with the power to become dry if it chooses and to control to some extent the distribution and sales system of alcohol within its borders. This is not our opinion.

  36. Veux Veux Pas (VVP) - May 7, 2021

    Donn Rutkoff, the issue is that Direct to Consumer (DtC) is a term that means when brands sell directly to their end customers without selling through a retailer, distributor, wholesaler or other outlet. In the tiered distribution system only the retailer is outlet for consumers. At first you must understand that a retailer will DtC only if retailer produces its own brands which is impermissible in most States. And this not our opinion.

  37. Veux Veux Pas (VVP) - May 7, 2021

    You have to mind this, Tom Wark. In Granholm and in Tennessee Wine we read omitting “or” and “or”: “when a state statute directly regulates… interstate commerce…, we have generally struck down the statute without further inquiry.” Or your “experts” read differently?

  38. acv - May 7, 2021

    The true sadness of it all is that we all agree with the spirit of Tom’s column. We all agree that states do a horrible job defending their protectionist policies. (Whether this right exists or not). We all agree on opening up markets for DTC sales. Where we disagree is in the underlying facts of the case at play.

    One side, let’s call them the “Narcist of the Left”….you know, despite the nearly 90 years of the 21st Amendment on the books they read the law much differently – kind of that living constitutional approach.

    This is why I was so upset with Donn Rutkoff, who completely missed the discussion.

    “Living Constitutionalism. Living constitutionalists believe that the meaning of the constitutional text changes over time, as social attitudes change, even without the adoption of a formal constitutional amendment pursuant to Article V of the Constitution. Living constitutionalists believe that racial segregation was constitutional from 1877 to 1954, because public opinion favored it, and that it became unconstitutional only as a result of the Supreme Court decision in Brown v. Board of Education (1954) – a case in which they think the Supreme Court changed and improved the Constitution. In contrast, originalists think that the Fourteenth Amendment always forbade racial segregation—from its adoption in 1868, to the Supreme Court’s erroneous decision upholding segregation in Plessy v. Ferguson (1896), to the decision in Brown in 1954, down to the present day. Living constitutionalists think racial apartheid could become constitutional again if social attitudes toward race evolve. Originalists disagree and think race discrimination will always be unconstitutional unless the Fourteenth Amendment is repealed.”

    Democrats are fascist at their core. If they can’t find enough public opinion they burn the Reichstage building or riot and loot in our major cities in the pursuit of equity and racial harmony…..and new Nike’s, Louis Vuitton, etc, etc.

    Jim Ruxin claims that the “Will of the people” is his and his cohort’s aim all along. Not for a second are we buying that. See “Russian Collusion” 2016 – 2020.

  39. Jim Ruxin - May 7, 2021

    acv–

    You do not know how to read. “”The will of the people” is not a socialist concept…it is also called fair and free elections, which Republicans are trying to control. My comment expresses why we vote every year so all our voices can be heard. You took my comments out of context because it is more convenient to express your knee jerk reaction.

    You are one of those hysterical right wingnuts who see a socialist under every rock, and froth at the mouth with every dog whistle you can invent at the hint of shared responsibility for the common good.

    Really, a class in 8th grade civics should have rewired your brain decades ago. But alas, the selfish gene was increased in you more than a capitalist democracy should have allowed. Your baseless reasoning is bad for business and bad for the wine business.

  40. acv - May 7, 2021

    Jim your words – “Only the feds have the resources to protect us all equally with information we need to stay informed and make our own choices on life-threatening matters.”

    Those “feds” are technocrats. Not directly elected representatives. I am sure this is a struggle for you. The isolation from your one friend.

    The fact remains that in your world the question of political legitimacy is not democratic rather you are more than happy to transfer your political sovereignty to the rule “by experts.” This technocratic authority is a central goal of the “living constitutionalist” like yourself….and yes, that is socialist in principle.

    The problem is when science is pressed into duty as an authority, and you want to get people to behave a certain way you must assert certainty with your words and with the cudgel “believe the science”.

    Science must be transferred into something much more like a religion. Science as ideology. Science is a sort of quasi-religious form of authority. That is a contradiction. The pride of science is to be falsifiable. This is what distinguishes it from religion. You can prove it wrong. It exposes itself to being falsified.

    Science evoked as the authority has caused the rise of cynicism. Science stripped of its humility and its openness to being questioned has caused public opinion to become untethered from it.

    What is interesting is this Manichaean approach you adopted to the discussion. Your light and I am dark and therefore you asked everyone to stop listening to me and to stop engaging with me. The moral energy you injected into the discussion to marginalize me and label me a bad person is sad. I will pray for you.

    I have never said I had a monopoly on the subject matter of the 21st amendment/ commerce clause etc., etc. I am happy to have my mind changed.

  41. Jim Ruxin - May 7, 2021

    acv–

    I am n ot willing to give me life over to experts without critical consideration. The subjugation you speak stinks of the Red Scare that ruined peoples lives unfairly, denying them the political freedoms your beloved Constitution promised them, like due process.

    Sure there were offenses by many lefties. So what.

    Yours is antiquated belief system that is denial of all the good BETTER government can do.

    Science is one of the few rational sources of direction we can take. Now that we know you are anti-science, we can put you in the same box as the other blaggards who use bias and fear as a rationale to make decisions and marginalize people.

    Until you use your name, you are a coward and not a real person. Actually I questioned your humanity anyway, After all, adhering to scientific advice, even as it changed during the pandemic, would have saved a few hundred thousand of those who died.

    You don’t have to pray for me. You betray your own religious tradition by not caring for your neighbor or the stranger, the poor or the sick. Your viewpoints give you no right to claim piety.

    If you peel back the layers of your ideology and the cruelty and suffering it causes, your attitudes are hardly religious, but merely mean and selfish.

    I’m done. If anyone has followed your bloviating, I think this has gone about as far down the rabbit hole as anyone might want to follow you.

  42. acv - May 7, 2021

    GOT EM!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    To catch a hypocrite, you need to set a good trap.

    So, experts? Like the expert that says DTC sales “would lead to increased alcohol use and binge drinking for both youth and adults and would also increase the number of alcohol-related problems, including traffic crashes, crime, and mortality from accidents, cirrhosis and other alcohol-related causes.”

    Jim, you’re not anti-science, are you? These arguments are right down your alley.

    All the decision-makers in the state capital of NC are doing is deferring to science. Someone’s science at least.

    The fact is you cannot follow “the science”. Because Science does not lead you anywhere. It can illuminate various courses of action. For example, by quantifying the risks and specify the tradeoffs. But it cannot make the choices for us.

    Devaluing the consequences a politician should face in advocating one political policy over another by use of the phrase “settled science” is true cowardness.

    Jim, you clearly advocate for rule by experts. Thank you for so kindly showing us all that you are a fan of passing power upward to technocratic and/ or expert bodies.

    Jim wants to delegitimize people’s extinct or natural intuition on how one might behave with regards to the Wuhan Virus…but when the science comes knocking on DTC alcohol laws.

    …. well, hell partner…..COMMON SENSE tells me that’s not SCIENCE.

    BUSTED!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!!

    #SOBUSTED

  43. Jim Ruxin - May 7, 2021

    Dear Nameless avc–

    Yes, you have set a trap…for yourself. All intelligent readers know I have never abdicated the role of human responsibility and common sense in any consideration: the right to question anyone with with a position of authority.

    Your ALL CAPS conclusion shows everyone that you have been pushed to the absurdity of your extreme , beyond the limits of your limits of civility, intelligence, Your desperation is showing.

    What you fail to realize is that some of us are not so arrogant as to mistrust everyone else. Nor are we are so arrogant that we do not acknowledge our ignorance whenever we realize it or whenever it is pointed out to us. You do no such service to the public sphere,

    As a conscientious and concerned citizen, I will always question the experts to make sure they have thought through the consequences of their conclusions and policies.

    But you know what, acv, real experts, real scientists, are people who admit what they don’t know, who respect disciplined and continued exploration and testing of experimental results. Unlike you.

    These are humble people who put their ego aside to look at facts as objectively as humanly possible. These are the real human beings who care deeply about real results that will benefit the most people.

    All we are getting from your hysteria is…more hysteria, I am so so sorry this conversation could not be more productive for all us. “Reductio ad absurdum” is a horrible way to say goodbye. But it must be done.

    You have trashed this conversation long enough. Tom and his readers are too good natured and too open minded sometimes, but they do not deserve your trashy behavior. You have abused them all for long enough.

  44. acv - May 8, 2021

    Ah, the high moral posturing of the left aka the Greta Thunberg approach to debate. When the facts are not on your side feign moral outrage. “How dare you besmirch Tom’s blog. Look everyone I’m the harmless one upholding the truth – love me…. not him.” …and, Afterall he’s a racist.

    So, questioning the science behind China Virus restrictions…. well, that’s just CockyPop thinking …. anti-science rhetoric. No politized science to be found here.

    But you are allowed to question the science seeking to restrict DTC interstate wine sales because you can use your common sense to tell this science is gobbledygook. Do you realize how narcissistic your thinking is?

    The failure of lockdown science was self-evident. The response was not to reexamine the science rather it was to desperate appeal to marginalize anyone that objected as having bad moral character. “How dare you, question the science, you angry-white-heterosexual-male.”

    The final tool to crush dissent in today’s public sphere is to play the moral outrage card. It’s good people vs bad people.

    The 21st Amendment has 3 sections as ratified. Feel free to click your heels together and think differently #WizardofOz

  45. Jim Ruxin - May 8, 2021

    I promise this is my last response and it is directed at the rational participants in this group.

    Methinks he doth protest too much.

  46. Donn Rutkoff - May 8, 2021

    Wow. What a mess. By the way, Did any of you bother to pull up Dogood 4 written in 1722 by 16 year old Ben Franklin, who took a dim view of esteemed Harvard? Just an amusing sidebar from all this gobble gobble. And to clear my name, politically, I am not what somebody thinks I am.. I plan on voting for Elon Musk in 2024.

  47. acv - May 8, 2021

    I don’t know how we did it but this whole argument on the debate within closed states and their laws for DTC sales is a mirror of today’s debates.

    DTC briefs are riddled with the science of either actuary or the science of the humanities that is then used to justify a public policy. “Follow the science”.

    Quickly, followed by righteousness people feel on one side of the debate aka the Greta Thunberg approach to discussion.

    It’s that old Christian principle of the “Elect and the damned.” Some of us can be saved and some of us cannot – put another way, we paint those on one side of the debate as good and those on the other side as bad.

    Simply, those destined for salvation – will call them the Elon Musk 2024 voters are never to be confused with those destined to be eternal damned – let us call them the 2024 Trump voters.

    Strange this need to declare which side you are on. The need to virtue signal for others is quite amusing.

  48. Steven Smith - May 10, 2021

    Vacationed there as a youth for many summers. There was a chain of phenomenal drive through beer stores where you never needed to get out of your vehicle to purchase. What a convenience if you forgot to wear shoes. Wouldn’t that be a bigger contributor to over drinking?

    I kind of thought having to wait for your wine to ship would be a better protective measure to curb over drinking as you couldn’t just drive drunk down to your extra convenient convenience store and get more.


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