Many states prohibit out-of-state sellers of wine from shipping their product directly to consumers, but permit in-state wine producers to engage in such direct shipment. Recent lower federal court decisions have cast serious constitutional doubt upon the authority of a state to discriminate in this manner against wine producers and sellers from other states in favor of its own domestic wine industry. This issue appears headed for the Supreme Court of the United States in the near future. The outcome cannot be foreseen with certainty, but it is likely the Court will find this discrimination unconstitutional.

‘Twas not always so. Ratification of the Twenty-first Amendment to the U.S. Constitution in 1933 ended the era of nationwide Prohibition of the production, sale and transportation of alcoholic beverages in this country. It also prohibited the import of alcohol into any state in violation of that state’s laws. For several decades after ratification, the U.S. Supreme Court afforded this provision a literal interpretation based upon its text and not subject to limitations imposed upon state authority by other constitutional provisions. Specifically, the Amendment was held to be “not limited by the commerce clause.” Under this view, although the Commerce Clause of the Constitution had long been construed as forbidding state discrimination against interstate commerce absent a compelling justification, this Amendment carved out a unique niche for alcohol: states had plenary authority to regulate imports of such products, regardless of the impact such regulation had on interstate commerce.