Granholm v Heald

In yesterday the Supreme Court, in Granholm v Heald , faced both a constitutional and policy conundrum. 
      On the constitutional question the Court split 5-4:  Does the “negative implication” of the Commerce Clause in Article II prevail over the language of the 21st Amendment, repealing prohibition.  The Commerce Clause gives power over interstate commerce to Congress.  It does not, by its express terms, prohibit the states from affecting interstate commerce and it does not define what interstate commerce is.  The 21st amendment empowered states to legalize and regulation the sale of alcohol.  The majority found the 21st amendment subservient to the Commerce Clause, even though the model view of the “negative implication” of the Commerce Clause had yet to be announced when the 21st amendment became effective.  The minority said that the 21st amendment, being later in time, amended the Commerce Clause (whose meaning, remember, had yet to be announced).  Both sides, by assuming a model view of the Commerce Clause attaches to lawmakers actions in the 20s, engage in historic fiction
      On the policy side, the Court took a clear position against local protectionism in favor of national commerce.  There is always a smokescreen of reasons to protect local merchants from national competitors.  The national economy suffers and the local protected economy, after a temporary gain perhaps, suffers as well.  Local protectionism will become more pronounced as international competitive pressures intensify and some states find themselves out of step.  Rather than innovate they will attempt to protect what they have.
      Bad constitutional history, but good policy perhaps – it is a tough case for free traders who also value legal process.