American Common Market Redux

Abstract

The Tennessee Wine case, decided in June of 2019, had a major effect on the path of the law for an issue not argued in it. The Supreme Court affirmed invalidity of a protectionist state liquor regulation that discriminated against interstate commerce in violation of the dormant commerce clause doctrine. Its holding rejected a vigorous defense based on the special terms of the Twenty-first Amendment that ended Prohibition—an issue of interest only to those involved in markets for alcoholic drinks. However, the Court’s opinion removed serious doubts about validity of the Doctrine itself, even though the petitioner and supporting amici curiae did not ask it to review the issue. The Doctrine was established by 19th Century Supreme Court decisions that set the legal framework for the American common market—until justices advocating the Doctrine’s abolition seemed close to a majority early in the present Century. The Tennessee Wine opinion eliminated that threat for the foreseeable future.