Tennessee Wine and Spirits Retailers Assn. v. Thomas ( 2019 )

(Slip Opinion) OCTOBER TERM, 2018 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
TENNESSEE WINE AND SPIRITS RETAILERS ASSN.
v. RUSSELL F. THOMAS, EXECUTIVE DIRECTOR OF
THE TENNESSEE ALCOHOLIC BEVERAGE
COMMISSION, ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE SIXTH CIRCUIT
No. 18–96. Argued January 16, 2019—Decided June 26, 2019
Tennessee law imposes durational-residency requirements on persons
and companies wishing to operate retail liquor stores, requiring ap-
plicants for an initial license to have resided in the State for the prior
two years; requiring an applicant for renewal of a license to reside in
the State for 10 consecutive years; and providing that a corporation
cannot obtain a license unless all of its stockholders are residents.
Following the state attorney general’s opinion that the residency re-
quirements discriminated against out-of-state economic interests in
violation of the Commerce Clause, the Tennessee Alcoholic Beverage
Commission (TABC) declined to enforce the requirements.
Two businesses that did not meet the residency requirements (both
respondents here) applied for licenses to own and operate liquor
stores in Tennessee. Petitioner Tennessee Wine and Spirits Retailers
Association (Association)—a trade association of in-state liquor
stores—threatened to sue the TABC if it granted the licenses, so the
TABC’s executive director (also a respondent) filed a declaratory
judgment action in state court to settle the question of the residency
requirements’ constitutionality. The case was removed to Federal
District Court, which found the requirements unconstitutional. The
State declined to appeal, but the Association took the case to the
Sixth Circuit. It affirmed, concluding that the provisions violated the
Commerce Clause. The Association petitioned for certiorari only with
respect to the Sixth Circuit’s decision to invalidate the 2-year resi-
dency requirement applicable to initial liquor store license appli-
2 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Syllabus
cants.
Held: Tennessee’s 2-year durational-residency requirement applicable
to retail liquor store license applicants violates the Commerce Clause
and is not saved by the Twenty-first Amendment. Pp. 6–37.
(a) The Commerce Clause by its own force restricts state protec-
tionism. Removing state trade barriers was a principal reason for the
adoption of the Constitution, and at this point no provision other
than the Commerce Clause could easily do that job. The Court has
long emphasized the connection between the trade barriers that
prompted the call for a new Constitution and its dormant Commerce
Clause jurisprudence. See Guy v. Baltimore, 100 U.S. 434, 440;
Granholm v. Heald, 544 U.S. 460, 472. Pp. 6–10.
(b) Under the dormant Commerce Clause cases, a state law that
discriminates against out-of-state goods or nonresident economic ac-
tors can be sustained only on a showing that it is narrowly tailored to
“advanc[e] a legitimate local purpose.” Department of Revenue of Ky.
v. Davis, 553 U.S. 328, 338. Tennessee’s 2-year residency require-
ment plainly favors Tennesseans over nonresidents. P. 10.
(c) Because the 2-year residency requirement applies to the sale of
alcohol, however, it must be evaluated in light of §2 of the Twenty-
first Amendment. Pp. 10–20.
(1) Section 2’s broad text—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”—could be read to prohibit the transportation or
importation of alcoholic beverages in violation of any state law. But
the Court has declined to adopt that reading, instead interpreting §2
as one part of a unified constitutional scheme and in light of the pro-
vision’s history. History teaches that §2’s thrust is to “constitutional-
iz[e]” the basic structure of federal-state alcohol regulatory authority
that prevailed prior to the Eighteenth Amendment’s adoption. Craig
v. Boren, 429 U.S. 190, 206. Pp. 10–12.
(2) This Court invalidated many state liquor regulations before
the Eighteenth Amendment’s ratification, and by the late 19th centu-
ry it had concluded that the Commerce Clause both prevented States
from discriminating “against citizens and products of other States,”
Walling v. Michigan, 116 U.S. 446, 460, and “prevented States from
passing facially neutral laws that placed an impermissible burden on
interstate commerce,” Granholm, 544 U.S., at 477. State bans on
the production and sale of alcohol within state borders were rendered
ineffective by the “original-package doctrine,” which made “goods
shipped in interstate commerce . . . immune from state regulation
while in their original package.” Ibid. Congress responded by pass-
ing the Wilson Act, which provided that all alcoholic beverages
Cite as: 588 U. S. ____ (2019) 3
Syllabus
“transported into any State or Territory” were subject “upon arrival”
to the same restrictions imposed by the State “in the exercise of its
police powers” over alcohol produced in the State, i.e., bona fide
health and safety measures. This Court, however, narrowly con-
strued the term “arrival” in the Wilson Act as arrival to the consignee
rather than arrival within the State’s borders, which allowed con-
sumers to continue to receive direct shipments of alcohol from out of
State. Congress passed the Webb-Kenyon Act to close that loophole.
But, as this Court’s decision in Granholm determined, the Webb-
Kenyon Act was not intended to override the rule barring States from
discriminating against out-of-state citizens and products, nor the
traditional limits on state police power. Thereafter, the Eighteenth
Amendment was ratified, prohibiting the manufacture, sale, trans-
portation, and importation of alcoholic beverages across the country.
Pp. 12–20.
(d) Section 2 of the Twenty-first Amendment grants the States lat-
itude with respect to the regulation of alcohol, but it does not allow
the States to violate the “nondiscrimination principle” that was a
central feature of the regulatory regime that the provision was meant
to constitutionalize. Granholm, supra, at 487. Pp. 20–32.
(1) The Twenty-first Amendment ended nationwide Prohibi-
tion, but §2 gave each State the option of banning alcohol if its citi-
zens so chose. Its text “closely follow[ed]” the Webb-Kenyon Act’s op-
erative language, suggesting that it was meant to have a similar
meaning. Craig v. Boren, 429 U.S., at 205–206. The provision was
meant to “constitutionaliz[e]” the basic understanding of the extent of
the States’ power to regulate alcohol that prevailed before Prohibi-
tion. Id., at 206. And during that period, the Commerce Clause did
not permit the States to impose protectionist measures clothed as po-
lice-power regulations. Pp. 20–22.
(2) At first, the Court did not take account of this history. But
it has since recognized that §2 cannot be interpreted to override all
previously adopted constitutional provisions, scrutinizing state alco-
hol laws for compliance with, e.g., the Free Speech Clause, 44 Liq-
uormart, Inc. v. Rhode Island, 517 U.S. 484; the Establishment
Clause, Larkin v. Grendel’s Den, Inc., 459 U.S. 116; the Equal Pro-
tection Clause, Craig v. Boren, supra; the Due Process Clause, Wis-
consin v. Constantineau, 400 U.S. 433; and the Import-Export
Clause, Department of Revenue v. James B. Beam Distilling Co., 377
U.S. 341. Section 2 also does not entirely supersede Congress’s pow-
er to regulate commerce, see, e.g., Hostetter v. Idlewild Bon Voyage
Liquor Corp., 377 U.S. 324, 333–334, nor is its aim to permit States
to restrict the importation of alcohol for purely protectionist purpos-
es, see, e.g., Granholm, supra, at 486–487. Pp. 22–23.
4 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Syllabus
(3) Protectionism is not a legitimate §2 interest shielding state
alcohol laws that burden interstate commerce. Bacchus Imports, Ltd.
v. Dias, 468 U.S. 263, 276. The Court has applied that principle to
invalidate state alcohol laws aimed at giving a competitive advantage
to in-state businesses. See, e.g., id., at 274. Pp. 24–26.
(4) The Association and the dissent’s overly broad understand-
ing of §2 is unpersuasive. They claim that, while §2 does not give the
States the power to discriminate against out-of-state alcohol products
and producers, a different rule applies to state laws regulating in-
state alcohol distribution. There is no sound basis for this distinc-
tion. The Association and the dissent also claim that discriminatory
distribution laws, including in-state residency requirements, long
predate Prohibition and were adopted by many States following the
Twenty-first Amendment’s ratification. State laws adopted soon af-
ter ratification, however, may have been based on an overly expan-
sive interpretation of §2 that can no longer be defended, and many
state laws adopted before Prohibition were never tested in this Court.
Nor have States historically enjoyed absolute authority to police al-
cohol within their borders. Section 2 allows each State leeway to enact
measures to address the public health and safety effects of alcohol
use and other legitimate interests, but it does not license the States
to adopt protectionist measures with no demonstrable connection to
those interests. Pp. 26–32.
(d) Applying the appropriate §2 analysis here, Tennessee’s 2-year
residency requirement cannot be sustained. The provision expressly
discriminates against nonresidents and has at best a highly attenu-
ated relationship to public health or safety. The Association claims
that the requirement ensures that retailers are subject to process in
state courts, but does not explain why that objective could not easily
be achieved by, e.g., requiring a nonresident to designate an agent to
receive process. Similarly unpersuasive is its claim that the re-
quirement allows the State to ensure that only law-abiding and re-
sponsible applicants receive licenses. The State can thoroughly in-
vestigate applicants without requiring them to reside in the State for
two years, and in any event the requirement poorly serves that goal
since the TABC would have no reason to investigate a nonresident
who moves to the State with the intention of applying for a license
once the 2-year period ends. Nor is the residency requirement need-
ed to enable the State to maintain oversight over liquor store opera-
tors; they can be monitored through any number of nondiscriminato-
ry means, including on-site inspections, audits, and the like. There is
also no evidence to support the claim that the requirement would
promote responsible alcohol consumption because retailers who know
the communities they serve will be more likely to engage in responsi-
Cite as: 588 U. S. ____ (2019) 5
Syllabus
ble sales practices. The residency requirement is poorly designed for
such a purpose, and the State could better serve the goal without dis-
criminating against nonresidents by, e.g., limiting both the number of
retail licenses and the amount of alcohol that may be sold to an indi-
vidual, mandating more extensive training for managers and em-
ployees, or monitoring retailer practices and taking action against
those who violate the law. Pp. 32–36.
883 F.3d 608, affirmed.
ALITO, J., delivered the opinion of the Court, in which ROBERTS, C. J.,
and GINSBURG, BREYER, SOTOMAYOR, KAGAN, and KAVANAUGH, JJ.,
joined. GORSUCH, J., filed a dissenting opinion, in which THOMAS, J.,
joined.
Cite as: 588 U. S. ____ (2019) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–96
_________________
TENNESSEE WINE AND SPIRITS RETAILERS
ASSOCIATION, PETITIONER v. RUSSELL F.
THOMAS, EXECUTIVE DIRECTOR OF THE
TENNESSEE ALCOHOLIC BEVERAGE
COMMISSION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2019]
JUSTICE ALITO delivered the opinion of the Court.
The State of Tennessee imposes demanding durational-
residency requirements on all individuals and businesses
seeking to obtain or renew a license to operate a liquor
store. One provision precludes the renewal of a license
unless the applicant has resided in the State for 10 con-
secutive years. Another provides that a corporation can-
not obtain a license unless all of its stockholders are resi-
dents. The Court of Appeals for the Sixth Circuit struck
down these provisions as blatant violations of the Com-
merce Clause, and neither petitioner—an association of
Tennessee liquor retailers—nor the State itself defends
them in this Court.
The Sixth Circuit also invalidated a provision requiring
applicants for an initial license to have resided in the
State for the prior two years, and petitioner does challenge
that decision. But while this requirement is less extreme
than the others that the Sixth Circuit found to be uncon-
2 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
stitutional, we now hold that it also violates the Com-
merce Clause and is not shielded by §2 of the Twenty-first
Amendment. Section 2 was adopted as part of the scheme
that ended prohibition on the national level. It gives each
State leeway in choosing the alcohol-related public health
and safety measures that its citizens find desirable. But
§2 is not a license to impose all manner of protectionist
restrictions on commerce in alcoholic beverages. Because
Tennessee’s 2-year residency requirement for retail license
applicants blatantly favors the State’s residents and
has little relationship to public health and safety, it is
unconstitutional.
I
A
Tennessee, like many other States, requires alcoholic
beverages distributed in the State to pass through a speci-
fied three-tiered system.1 Acting through the Tennessee
Alcoholic Beverage Commission (TABC), the State issues
different types of licenses to producers, wholesalers, and
retailers of alcoholic beverages. See Tenn. Code Ann. §57–
3–201 (2018). Producers may sell only to licensed whole-
salers; wholesalers may sell only to licensed retailers or
other wholesalers; and only licensed retailers may sell to
consumers. §57–3–404. No person may lawfully partici-
pate in the sale of alcohol without the appropriate license.
See, e.g., §57–3–406.
Included in the Tennessee scheme are onerous durational-
——————
1 For
purposes of the provisions at issue here, Tennessee law defines
“alcoholic beverage[s]” to include “spirits, liquor, wine, high alcohol
content beer,” and “any liquid product containing distilled alcohol
capable of being consumed by a human being, manufactured or made
with distilled alcohol, regardless of alcohol content,” Tenn. Code Ann.
§57–3–101(a)(1)(A) (2018). This definition excludes “beer,” which is
defined and regulated by separate statutory provisions, see §57–5–
101(b).
Cite as: 588 U. S. ____ (2019) 3
Opinion of the Court
residency requirements for all persons and compa-
nies wishing to operate “retail package stores” that sell
alcoholic beverages for off-premises consumption (herein-
after liquor stores). See §57–3–204(a). To obtain an ini-
tial retail license, an individual must demonstrate that he
or she has “been a bona fide resident” of the State for the
previous two years. §57–3–204(b)(2)(A). And to renew
such a license—which Tennessee law requires after only
one year of operation—an individual must show continu-
ous residency in the State for a period of 10 consecutive
years. Ibid.
The rule for corporations is also extraordinarily restric-
tive. A corporation cannot get a retail license unless all of
its officers, directors, and owners of capital stock satisfy
the durational-residency requirements applicable to indi-
viduals. §57–3–204(b)(3). In practice, this means that no
corporation whose stock is publicly traded may operate a
liquor store in the State.
In 2012, the Tennessee attorney general was asked
whether the State’s durational-residency requirements
violate the Commerce Clause, and his answer was that the
requirements constituted “trade restraints and barriers
that impermissibly discriminate against interstate com-
merce.” App. to Brief in Opposition 11a; see also id., at
12a (citing Jelovsek v. Bredesen, 545 F.3d 431, 435 (CA6
2008)). In light of that opinion, the TABC stopped enforc-
ing the requirements against new applicants. See App.
51, ¶9; id., at 76, ¶10.
The Tennessee General Assembly responded by amend-
ing the relevant laws to include a statement of legislative
intent. Citing the alcohol content of the beverages sold in
liquor stores, the Assembly found that protection of “the
health, safety and welfare” of Tennesseans called for “a
higher degree of oversight, control and accountability for
individuals involved in the ownership, management and
control” of such outlets. §57–3–204(b)(4).
4 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
After the amendments became law, the attorney gen-
eral was again asked about the constitutionality of the
durational-residency requirements, but his answer was
the same as before. See App. to Brief in Opposition 13a.
Consequently, the TABC continued its practice of
nonenforcement.
B
In 2016, respondents Tennessee Fine Wines and Spirits,
LLC dba Total Wine Spirits Beer & More (Total Wine) and
Affluere Investments, Inc. dba Kimbrough Fine Wine &
Spirits (Affluere) applied for licenses to own and operate
liquor stores in Tennessee. At the time, neither Total
Wine nor Affluere satisfied the durational-residency re-
quirements. Total Wine was formed as a Tennessee lim-
ited liability company but is owned by residents of Mary-
land, Brief for Respondent Total Wine 10; App. 51, ¶4–5,
and Affluere was owned and controlled by two individuals
who, by the time their application was considered, had
only recently moved to the State, see App. 11–12, 20, 22.
TABC staff recommended approval of the applications,
but petitioner Tennessee Wine and Spirits Retailers Asso-
ciation (the Association)—a trade association of in-state
liquor stores—threatened to sue the TABC if it granted
them. Id., at 15, ¶17. The TABC’s executive director (a
respondent here) filed a declaratory judgment action in
state court to settle the question of the residency require-
ments’ constitutionality. Id., at 17.
The case was removed to the United States District
Court for the Middle District of Tennessee, and that court,
relying on our decision in Granholm v. Heald, 544 U.S.
460 (2005), concluded that the requirements are unconsti-
tutional. Byrd v. Tennessee Wine and Spirits Retailers
Assn., 259 F. Supp. 3d 785, 797 (2017). The State de-
clined to appeal, and Total Wine and Affluere were issued
licenses.
Cite as: 588 U. S. ____ (2019) 5
Opinion of the Court
The Association, however, took the case to the Court of
Appeals for the Sixth Circuit, where a divided panel af-
firmed. See Byrd v. Tennessee Wine and Spirits Retailers
Assn., 883 F.3d 608 (2018). All three judges acknowl-
edged that the Tennessee residency requirements facially
discriminate against out-of-state economic interests. See
id., at 624; id., at 634 (Sutton, J., concurring in part and
dissenting in part). And all three also agreed that neither
the 10-year residency requirement for license renewals nor
the 100-percent-resident shareholder requirement is
constitutional under this Court’s Twenty-first Amendment
and dormant Commerce Clause precedents. See id., at
625–626; id., at 635 (opinion of Sutton, J.).
The panel divided, however, over the constitutionality of
the 2-year residency requirement for individuals seeking
initial retail licenses, as well as the provision applying
those requirements to officers and directors of corporate
applicants. Applying standard dormant Commerce Clause
scrutiny, the majority struck down the challenged re-
strictions, reasoning that they facially discriminate
against interstate commerce and that the interests they
are claimed to further can be adequately served through
reasonable, nondiscriminatory alternatives. Id., at 623–
626. The dissent disagreed, reading §2 of the Twenty-first
Amendment to grant States “ ‘virtually’ limitless” authority
to regulate the in-state distribution of alcohol, the only
exception being for laws that “serve no purpose besides
‘economic protectionism.’ ” Id., at 633 (quoting Bacchus
Imports, Ltd. v. Dias, 468 U.S. 263, 276 (1984)). Applying
that highly deferential standard, the dissent would have
upheld the 2-year residency requirement, as well as the
provision applying that requirement to all officers and
directors of corporate applicants. The dissent argued that
these provisions help to promote the State’s interests in
“responsible consumption” of alcohol and “orderly liquor
markets.” 883 F.3d, at 633.
6 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
The Association filed a petition for a writ of certiorari
challenging the decision on the 2-year residency require-
ment for initial licenses. Tennessee declined to seek certi-
orari but filed a letter with the Court expressing agree-
ment with the Association’s position.2 We granted
certiorari, 585 U. S. ___ (2018), in light of the disagree-
ment among the Courts of Appeals about how to reconcile
our modern Twenty-first Amendment and dormant Com-
merce Clause precedents. See 883 F.3d, at 616 (collecting
cases).
II
A
The Court of Appeals held that Tennessee’s 2-year
residency requirement violates the Commerce Clause,
which provides that “[t]he Congress shall have Power . . .
[t]o regulate Commerce with foreign Nations, and among
the several States, and with the Indian Tribes.” Art. I, §8,
cl. 3. “Although the Clause is framed as a positive grant of
power to Congress,” Comptroller of Treasury of Md. v.
Wynne, 575 U. S. ___, ___ (2015) (slip op., at 5), we have
long held that this Clause also prohibits state laws that
unduly restrict interstate commerce. See, e.g., ibid.; Phil-
adelphia v. New Jersey, 437 U.S. 617, 623–624 (1978);
Cooley v. Board of Wardens of Port of Philadelphia ex rel.
Soc. for Relief of Distressed Pilots, 12 How. 299, 318–319
(1852); Willson v. Black Bird Creek Marsh Co., 2 Pet. 245,
252 (1829). “This ‘negative’ aspect of the Commerce
Clause” prevents the States from adopting protectionist
measures and thus preserves a national market for goods
and services. New Energy Co. of Ind. v. Limbach, 486
U.S. 269, 273 (1988).
This interpretation, generally known as “the dormant
——————
2 See Letter from H. Slatery III, Tenn. Atty. Gen., to S. Harris, Clerk
of Court (Nov. 13, 2018).
Cite as: 588 U. S. ____ (2019) 7
Opinion of the Court
Commerce Clause,” has a long and complicated history.
Its roots go back as far as Gibbons v. Ogden, 9 Wheat. 1
(1824), where Chief Justice Marshall found that a version
of the dormant Commerce Clause argument had “great
force.” Id., at 209. His successor disagreed, see License
Cases, 5 How. 504, 578–579 (1847) (Taney, C. J.), but by
the latter half of the 19th century the dormant Commerce
Clause was firmly established, see, e.g., Case of the State
Freight Tax, 15 Wall. 232, 279–280 (1873), and it played
an important role in the economic history of our Nation.
See Cushman, Formalism and Realism in Commerce
Clause Jurisprudence, 67 U. Chi. L. Rev. 1089, 1107
(2000).
In recent years, some Members of the Court have au-
thored vigorous and thoughtful critiques of this interpre-
tation. See, e.g., Camps Newfound/Owatonna, Inc. v.
Town of Harrison, 520 U.S. 564, 609–620 (1997)
(THOMAS, J., dissenting); Tyler Pipe Industries, Inc. v.
Washington State Dept. of Revenue, 483 U.S. 232, 259–
265 (1987) (Scalia, J., concurring in part and dissenting in
part); cf. post, at 2–3 (GORSUCH, J., dissenting) (deeming
doctrine “peculiar”). But the proposition that the Com-
merce Clause by its own force restricts state protectionism
is deeply rooted in our case law. And without the dormant
Commerce Clause, we would be left with a constitutional
scheme that those who framed and ratified the Constitu-
tion would surely find surprising.
That is so because removing state trade barriers was a
principal reason for the adoption of the Constitution.
Under the Articles of Confederation, States notoriously
obstructed the interstate shipment of goods. “Interference
with the arteries of commerce was cutting off the very life-
blood of the nation.” M. Farrand, The Framing of the
Constitution of the United States 7 (1913). The Annapolis
Convention of 1786 was convened to address this critical
problem, and it culminated in a call for the Philadelphia
8 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
Convention that framed the Constitution in the summer of
1787.3 At that Convention, discussion of the power to
regulate interstate commerce was almost uniformly linked
to the removal of state trade barriers, see Abel, The Com-
merce Clause in the Constitutional Convention and in
Contemporary Comment, 25 Minn. L. Rev. 432, 470–471
(1941), and when the Constitution was sent to the state
conventions, fostering free trade among the States was
prominently cited as a reason for ratification. In The
Federalist No. 7, Hamilton argued that state protection-
ism could lead to conflict among the States, see The Fed-
eralist No. 7, pp. 62–63 (C. Rossiter ed. 1961), and in No.
11, he touted the benefits of a free national market, id., at
88–89. In The Federalist No. 42, Madison sounded a
similar theme. Id., at 267–268.
In light of this background, it would be strange if the
Constitution contained no provision curbing state protec-
tionism, and at this point in the Court’s history, no provi-
sion other than the Commerce Clause could easily do the
job. The only other provisions that the Framers might
have thought would fill that role, at least in part, are the
Import-Export Clause, Art. I, §10, cl. 2, which generally
prohibits a State from “lay[ing] any Imposts or Duties on
Imports or Exports,” and the Privileges and Immunities
Clause, Art. IV, §2, which provides that “[t]he Citizens of
each State shall be entitled to all Privileges and Immuni-
ties of Citizens in the several States.” But the Import-
Export Clause was long ago held to refer only to interna-
tional trade. See Woodruff v. Parham, 8 Wall. 123, 136–
137 (1869). And the Privileges and Immunities Clause
has been interpreted not to protect corporations, Western
——————
3 See,
e.g., R. Beeman, Plain, Honest Men: The Making of the Ameri-
can Constitution 18–20 (2009); D. Stewart, The Summer of 1787: The
Men Who Invented the Constitution 9–10 (2007); M. Farrand, The
Framing of the Constitution of the United States 7–10 (1913).
Cite as: 588 U. S. ____ (2019) 9
Opinion of the Court
& Southern Life Ins. Co. v. State Bd. of Equalization of
Cal., 451 U.S. 648, 656 (1981) (citing Hemphill v. Orloff,
277 U.S. 537, 548–550 (1928)), and may not guard against
certain discrimination scrutinized under the dormant
Commerce Clause, see Denning, Why the Privileges and
Immunities Clause of Article IV Cannot Replace the
Dormant Commerce Clause Doctrine, 88 Minn. L. Rev.
384, 393–397 (2003). So if we accept the Court’s estab-
lished interpretation of those provisions, that leaves the
Commerce Clause as the primary safeguard against state
protectionism.4
It is not surprising, then, that our cases have long em-
phasized the connection between the trade barriers that
prompted the call for a new Constitution and our dormant
Commerce Clause jurisprudence. In Guy v. Baltimore, 100
U.S. 434, 440 (1880), for example, the Court wrote that
state protectionist measures, “if maintained by this court,
would ultimately bring our commerce to that ‘oppressed
and degraded state,’ existing at the adoption of the present
Constitution, when the helpless, inadequate Confederation
——————
4 Before Woodruff, there was authority suggesting that the Import-
Export Clause applied to trade between States. See Brown v. Mary-
land, 12 Wheat. 419, 449 (1827) (Marshall, C. J.); Almy v. California,
24 How. 169 (1861). And more recently Woodruff has been questioned.
See Camps Newfound/Owatonna, Inc. v. Town of Harrison, 520 U.S.
564, 624–636 (1997) (THOMAS, J., dissenting). But one way or the other,
it would grossly distort the Constitution to hold that it provides no
protection against a broad swath of state protectionist measures. Even
at the time of the adoption of the Constitution, it would have been
asking a lot to require that Congress pass a law striking down every
protectionist measure that a State or unit of local government chose to
enact. Cf. Friedman & Deacon, A Course Unbroken: The Constitution-
al Legitimacy of the Dormant Commerce Clause, 97 Va. L. Rev. 1877,
1898–1903 (2011); 3 The Records of the Federal Convention of 1787,
p. 549 (M. Farrand ed. 1911) (the Virginia Plan’s proposal of a congres-
sional negative was “justly abandoned, as, apart from other objections,
it was not practicable among so many States, increasing in number,
and enacting, each of them, so many laws”).
10 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
was abandoned and the national government instituted.”
More recently, we observed that our dormant Commerce
Clause cases reflect a “ ‘central concern of the Framers
that was an immediate reason for calling the Constitu-
tional Convention: the conviction that in order to succeed,
the new Union would have to avoid the tendencies toward
economic Balkanization that had plagued relations among
the Colonies and later among the States under the Articles
of Confederation.’ ” Granholm, 544 U.S., at 472 (quoting
Hughes v. Oklahoma, 441 U.S. 322, 325–326 (1979)).
In light of this history and our established case law, we
reiterate that the Commerce Clause by its own force re-
stricts state protectionism.
B
Under our dormant Commerce Clause cases, if a state
law discriminates against out-of-state goods or nonresi-
dent economic actors, the law can be sustained only on a
showing that it is narrowly tailored to “ ‘advanc[e] a legit-
imate local purpose.’ ” Department of Revenue of Ky. v.
Davis, 553 U.S. 328, 338 (2008). See also, e.g., Oregon
Waste Systems, Inc. v. Department of Environmental Qual-
ity of Ore., 511 U.S. 93, 100–101 (1994); Maine v. Taylor,
477 U.S. 131, 138 (1986).
Tennessee’s 2-year durational-residency requirement
plainly favors Tennesseans over nonresidents, and neither
the Association nor the dissent below defends that re-
quirement under the standard that would be triggered if
the requirement applied to a person wishing to operate a
retail store that sells a commodity other than alcohol. See
883 F.3d, at 626. Instead, their arguments are based on
§2 of the Twenty-first Amendment, to which we will now
turn.
Cite as: 588 U. S. ____ (2019) 11
Opinion of the Court
III
A
Section 2 of the Twenty-first Amendment provides as
follows:
“The transportation or importation into any State,
Territory, or possession of the United States for deliv-
ery or use therein of intoxicating liquors, in violation
of the laws thereof, is hereby prohibited.”
Although the interpretation of any provision of the Consti-
tution must begin with a consideration of the literal mean-
ing of that particular provision, reading §2 to prohibit the
transportation or importation of alcoholic beverages in
violation of any state law5 would lead to absurd results
that the provision cannot have been meant to produce.
Under the established rule that a later adopted provision
takes precedence over an earlier, conflicting provision of
equal stature, see, e.g., United States v. Tynen, 11 Wall.
88, 92 (1871); Posadas v. National City Bank, 296 U.S.
497, 503 (1936); A. Scalia & B. Garner, Reading Law 327–
328 (2012); 1A N. Singer & J. Singer, Sutherland on Stat-
utory Construction §23:9 (7th ed. 2009), such a reading of
§2 would mean that the provision would trump any irrec-
oncilable provision of the original Constitution, the Bill of
Rights, the Fourteenth Amendment, and every other
constitutional provision predating ratification of the
Twenty-first Amendment in 1933. This would mean,
among other things, that a state law prohibiting the im-
——————
5 As we will explain, §2 followed the wording of the 1913 Webb-
Kenyon Act, ch. 90, 37 Stat. 699, see Craig v. Boren, 429 U.S. 190,
205–206 (1976), and, given this Court’s case law at the time, it went
without saying that the only state laws that Congress could protect
from constitutional challenge were those that represented the valid
exercise of the police power, which was not understood to authorize
purely protectionist measures with no bona fide relation to public
health or safety. See infra, at 14–15, 18–19.
12 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
portation of alcohol for sale to persons of a particular race,
religion, or sex would be immunized from challenge under
the Equal Protection Clause. Similarly, if a state law
prohibited the importation of alcohol for sale by proprie-
tors who had expressed an unpopular point of view on an
important public issue, the First Amendment would pro-
vide no protection. If a State imposed a duty on the im-
portation of foreign wine or spirits, the Import-Export
Clause would have to give way. If a state law retroactively
made it a crime to have bought or sold imported alcohol
under specified conditions, the Ex Post Facto Clause would
provide no barrier to conviction. The list goes on.
Despite the ostensibly broad text of §2, no one now
contends that the provision must be interpreted in this
way. Instead, we have held that §2 must be viewed as one
part of a unified constitutional scheme. See California
Retail Liquor Dealers Assn. v. Midcal Aluminum, Inc., 445
U.S. 97, 109 (1980); Hostetter v. Idlewild Bon Voyage
Liquor Corp., 377 U.S. 324, 331–332 (1964); cf. Scalia &
Garner, supra, at 167–169, 180–182. In attempting to
understand how §2 and other constitutional provisions
work together, we have looked to history for guidance, and
history has taught us that the thrust of §2 is to “constitu-
tionaliz[e]” the basic structure of federal-state alcohol
regulatory authority that prevailed prior to the adoption of
the Eighteenth Amendment. Craig v. Boren, 429 U.S.
190, 206 (1976). We therefore examine that history.
B
Throughout the 19th century, social problems attributed
to alcohol use prompted waves of state regulation, and
these measures were often challenged as violations of
various provisions of the Federal Constitution.
One wave of state regulation occurred during the first
half of the century. The country’s early years were a time
of notoriously hard drinking, see D. Okrent, Last Call: The
Cite as: 588 U. S. ____ (2019) 13
Opinion of the Court
Rise and Fall of Prohibition 7 (2010),6 and the problems
that this engendered prompted States to enact a variety of
regulations, including licensing requirements, age re-
strictions, and Sunday-closing laws. See Byse, Alcoholic
Beverage Control Before Repeal, 7 Law & Contemp. Prob.
544, 546–551 (1940).
Three States’ alcohol licensing laws came before this
Court in 1847 in the License Cases, 5 How. 504. The
principal claim in those cases was similar to the one now
before us; licensing laws enacted in three States were
challenged under the Commerce Clause. The Court unan-
imously rejected those claims, but six Justices authored
opinions; no opinion commanded a majority; and the gen-
eral status of dormant Commerce Clause claims was left
uncertain. See 5 C. Swisher, The Taney Period, 1836–64,
History of the Supreme Court of the United States 373–
374 (1974).
Following the Civil War, the Court considered a steady
stream of alcohol-regulation cases. The postwar period
saw a great proliferation of saloons,7 and myriad social
——————
6 Between 1780 and 1830, Americans consumed “more alcohol, on an
individual basis, than at any other time in the history of the nation,”
with per capita consumption double that of the modern era. R. Mendel-
son, From Demon to Darling: A Legal History of Wine in America 11
(2009).
7 By 1872, about 100,000 had sprung up across the country, and by
the end of the century, that number had climbed to almost 300,000.
Id., at 31. This increase has been linked to the introduction of the
English “tied-house” system. Under the tied-house system, an alcohol
producer, usually a brewer, would set up saloonkeepers, providing them
with premises and equipment, and the saloonkeepers, in exchange,
agreed to sell only that producer’s products and to meet set sales
requirements. Ibid.; T. Pegram, Battling Demon Rum: The Struggle for
a Dry America, 1800–1933, p. 95 (1998). To meet those requirements,
saloonkeepers often encouraged irresponsible drinking. Id., at 97. The
three-tiered distribution model was adopted by States at least in large
part to preclude this system. See Arnold’s Wines, Inc. v. Boyle, 571
F.3d 185, 187 (CA2 2009).
14 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
problems were attributed to this development. In re-
sponse, many States passed laws restricting the sale of
alcohol. By 1891, six States had banned alcohol produc-
tion and sale completely. R. Hamm, Shaping the Eight-
eenth Amendment 25 (1995) (Hamm).
During this period, state laws regulating the alcohol
trade were unsuccessfully challenged in this Court on a
variety of constitutional grounds. See, e.g., Mugler v.
Kansas, 123 U.S. 623 (1887) (Privileges or Immunities
and Due Process Clauses of Fourteenth Amendment); Beer
Co. v. Massachusetts, 97 U.S. 25 (1878) (Contracts
Clause); Bartemeyer v. Iowa, 18 Wall. 129 (1874) (Privileges
or Immunities and Due Process Clauses of Fourteenth
Amendment). In those decisions, the Court staunchly
affirmed the “right of the States,” in exercising their “po-
lice power,” to “protect the health, morals, and safety of
their people,” but the Court also cautioned that this objec-
tive could be pursued only “by regulations that do not
interfere with the execution of the powers of the general
government, or violate rights secured by the Constitution
of the United States.” Mugler, 123 U.S., at 659. For that
reason, the Court continued, “mere pretences” could not
sustain a law regulating alcohol; rather, if “a statute
purporting to have been enacted to protect the public
health, the public morals, or the public safety, has no real
or substantial relation to those objects, or is a palpable
invasion of rights secured by the fundamental law, it is
the duty of the courts to so adjudge, and thereby give
effect to the Constitution.” Id., at 661.
Dormant Commerce Clause challenges also reached the
Court. States that banned the production and sale of
alcohol within their borders found that these laws did not
stop residents from consuming alcohol shipped in from
other States. To curb that traffic, States passed laws
regulating or prohibiting the importation of alcohol, and
these enactments were quickly challenged.
Cite as: 588 U. S. ____ (2019) 15
Opinion of the Court
By the late 19th century, the Court was firmly of the
view that the Commerce Clause by its own force restricts
state regulation of interstate commerce. See Bowman v.
Chicago & Northwestern R. Co., 125 U.S. 465 (1888);
Leisy v. Hardin, 135 U.S. 100 (1890). Dormant Commerce
Clause cases from that era “advanced two distinct princi-
ples,” an understanding of which is critical to gauging the
States’ pre-Prohibition power to regulate alcohol.
Granholm, 544 U.S., at 476.
First, the Court held that the Commerce Clause pre-
vented States from discriminating “against the citizens
and products of other States,” Walling v. Michigan, 116
U.S. 446, 460 (1886). See also Scott v. Donald, 165 U.S.
58 (1897); Tiernan v. Rinker, 102 U.S. 123 (1880). Apply-
ing that rule, the Walling Court struck down a discrimina-
tory state fee that applied only to those in the business of
selling imported alcohol. 116 U.S., at 454, 458. Similarly,
in Scott, the Court invalidated a law that gave an “unjust
preference [to] the products of the enacting State as
against similar products of the other States.” 165 U.S., at
101. The Court did not question the States’ use of the
police power to regulate the alcohol trade but stressed that
such regulation must have a “bona fide” relation to pro-
tecting “ ‘the public health, the public morals or the public
safety,’ ” id., at 91 (quoting Mugler, supra, at 661), and
could not encroach upon Congress’s “power to regulate
commerce among the several States,” Walling, supra,
at 458.
Second, the Court “held that the Commerce Clause
prevented States from passing facially neutral laws that
placed an impermissible burden on interstate commerce.”
Granholm, 544 U.S., at 477. At the time of these deci-
sions, the “original-package doctrine” defined the outer
limits of Congress’s authority to regulate interstate com-
merce. Ibid. See Brown v. Maryland, 12 Wheat. 419
(1827). Under that doctrine, “goods shipped in interstate
16 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
commerce were immune from state regulation while in
their original package,” because at that point they had not
yet been comingled with the mass of domestic property
subject to state jurisdiction. Granholm, 544 U.S., at 477;
see id., at 477–478 (citing Vance v. W. A. Vandercook Co.,
170 U.S. 438, 444–445 (1898)). Applying this doctrine to
state alcohol laws, the Court struck down an Iowa statute
that required importers to obtain special certificates,
Bowman, supra, as well as another Iowa law that, with
limited exceptions, banned the importation of liquor,
Leisy, supra.
These decisions left dry States “in a bind.” Granholm,
supra, at 478. See Rogers, Interstate Commerce in Intoxi-
cating Liquors Before the Webb-Kenyon Act, 4 Va. L. Rev.
174 (1916), 288 (1917) (noting “practical nullification of
state laws” by original-package decisions). States could
ban the production and sale of alcohol within their bor-
ders, but those bans “were ineffective because out-of-state
liquor was immune from any state regulation as long as it
remained in its original package.” Granholm, supra, at
478. In effect, the Court’s interpretation of the dormant
Commerce Clause conferred favored status on out-of-state
alcohol, and that hamstrung the dry States’ efforts to
enforce local prohibition laws. Representatives of those
States and temperance advocates thus turned to Congress,
which passed two laws to solve the problem.
The first of these was the Wilson Act, enacted in 1890.
Ch. 728, 26 Stat. 313, 27 U.S. C. §121. Named for Sena-
tor James F. Wilson of Iowa, whose home State’s laws had
fallen in Bowman and Leisy, the Wilson Act aimed to
obviate the problem presented by the “original-package”
rule. Dormant Commerce Clause restrictions apply only
when Congress has not exercised its Commerce Clause
power to regulate the matter at issue, cf. Bowman, supra,
at 485; Leisy, supra, at 123–124, and the strategy of those
who favored the Wilson Act was for Congress to eliminate
Cite as: 588 U. S. ____ (2019) 17
Opinion of the Court
the problem that had surfaced in Bowman and Leisy by
regulating the interstate shipment of alcohol, see Hamm
77–80; Rogers, supra, at 194–195. During the late 19th
century and early 20th century, Congress enacted laws
that entirely prohibited the transportation of certain goods
and persons across state lines, and some but not all of
these measures were held to be valid exercises of the
commerce power. See Lottery Case, 188 U.S. 321 (1903)
(upholding law prohibiting interstate shipment of lottery
tickets); Hoke v. United States, 227 U.S. 308 (1913) (sus-
taining Mann Act prohibition on bringing women across
state lines for prostitution); Hammer v. Dagenhart, 247
U.S. 251 (1918) (striking down provision banning inter-
state shipment of goods produced by child labor).
Unlike these laws, the Wilson Act did not attempt to
ban all interstate shipment of alcohol. Its goal was more
modest: to leave it up to each State to decide whether to
admit alcohol. Its critical provision specified that all
alcoholic beverages “transported into any State or Terri-
tory” were subject “upon arrival” to the same restrictions
imposed by the State “in the exercise of its police powers”
over alcohol produced in the State.8 Thus, the Wilson Act
mandated equal treatment for alcohol produced within
and outside a State, not favorable treatment for local
products. See Granholm, supra, at 479 (discussing Scott,
165 U.S., at 100–101). And the only state laws that it
attempted to shield were those enacted by a State “in the
——————
8 The provision read as follows:
“That all fermented, distilled, or other intoxicating liquors or liquids
transported into any State or Territory or remaining therein for use,
consumption, sale or storage therein, shall upon arrival in such State or
Territory be subject to the operation and effect of the laws of such State
or Territory enacted in the exercise of its police powers, to the same
extent and in the same manner as though such liquids or liquors had
been produced in such State or Territory, and shall not be exempt
therefrom by reason of being introduced therein in original packages or
otherwise.” Ch. 728, 26 Stat. 313, 27 U.S. C. §121.
18 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
exercise of its police powers,” which, as we have seen,
applied only to bona fide health and safety measures. See,
e.g., id., at 91 (citing Mugler, 123 U.S., at 661).
Despite Congress’s clear aim, the Wilson Act failed to
relieve the dry States’ predicament. In Rhodes v. Iowa,
170 U.S. 412 (1898), and Vance v. W. A. Vandercook Co.,
supra, the Court read the Act’s reference to the “arrival” of
alcohol in a State to mean delivery to the consignee, not
arrival within the State’s borders. Granholm, 544 U.S.,
at 480. The upshot was that residents of dry States could
continue to order and receive imported alcohol. Ibid. See
also Hamm 178. In 1913, Congress tried to patch this hole
by passing the Webb-Kenyon Act, ch. 90, 37 Stat. 699, 27
U.S. C. §122.
The aim of the Webb-Kenyon Act was to give each State
a measure of regulatory authority over the importation of
alcohol, but this created a drafting problem. There were
those who thought that a federal law giving the States this
authority would amount to an unconstitutional delegation
of Congress’s legislative power over interstate commerce.9
So the Act was framed not as a measure conferring power
on the States but as one prohibiting conduct that violated
state law. The Act provided that the shipment of alcohol
into a State for use in any manner, “either in the original
package or otherwise,” “in violation of any law of such
State,” was prohibited.10 This formulation is significant
——————
9 That was the position expressed in an opinion issued by Attorney
General Wickersham, 30 Op. Atty. Gen. 88 (1913), and President Taft’s
veto, which Congress overrode, was based on exactly this ground. 49
Cong. Rec. 4291 (1913) (Veto Message of the President).
10 The Act provided:
“That the shipment or transportation . . . of any spirituous, vinous,
malted, fermented, or other intoxicating liquor of any kind, from one
State . . . into any other State . . . which said spirituous, vinous, malted,
fermented, or other intoxicating liquor is intended, by any person
interested therein, to be received, possessed, sold, or in any manner
used, either in the original package or otherwise, in violation of any law
Cite as: 588 U. S. ____ (2019) 19
Opinion of the Court
for present purposes because it would provide a model for
§2 of the Twenty-first Amendment.
The Webb-Kenyon Act attempted to fix the hole in the
Wilson Act and thus to “eliminate the regulatory ad-
vantage . . . afforded imported liquor,” Granholm, supra,
at 482; see also Clark Distilling Co. v. Western Maryland
R. Co., 242 U.S. 311, 324 (1917), but its wording, unlike
the Wilson Act’s, did not explicitly mandate equal treat-
ment for imported and domestically produced alcohol.
And it referred to “any law of such State,” 37 Stat. 700
(emphasis added), whereas the Wilson Act referred to “the
laws of such State or Territory enacted in the exercise of its
police powers.” 26 Stat. 313 (emphasis added). But de-
spite these differences, Granholm held, over a strenuous
dissent, 544 U.S., at 505–514 (opinion of THOMAS, J.),
that the Webb-Kenyon Act did not purport to authorize
States to enact protectionist measures.
There is good reason for this holding. As we have noted,
the Court’s pre-Webb-Kenyon Act decisions upholding
state liquor laws against challenges based on constitutional
provisions other than the Commerce Clause had cau-
tioned that protectionist laws disguised as exercises of the
police power would not escape scrutiny. See supra, at 14–
15.11 The Webb-Kenyon Act, by regulating commerce,
could obviate dormant Commerce Clause problems, but it
could not override the limitations imposed by these other
constitutional provisions and the traditional understand-
ing regarding the bounds of the States’ inherent police
powers. Therefore the Wilson Act’s reference to laws
“enacted in the exercise of [a State’s] police powers,” 26
Stat. 313, merely restated what this Court had already
——————
of such State . . . is hereby prohibited.” 37 Stat. 699–700.
11 This principle was also invoked in dormant Commerce Clause cases
involving other products. See, e.g., Minnesota v. Barber, 136 U.S. 313,
319, 323 (1890); Railroad Co. v. Husen, 95 U.S. 465, 472 (1878).
20 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
found to be a constitutional necessity, and consequently,
there was no need to include such language in the Webb-
Kenyon Act. Even without limiting language like that in
the Wilson Act, the shelter given by the Webb-Kenyon Act
applied only where “the States treated in-state and out-of-
state liquor on the same terms.” Granholm, supra, at
481.12
Following passage of the Webb-Kenyon Act, temperance
advocates began the final push for nationwide Prohibition,
and with the ratification of the Eighteenth Amendment in
1919, their goal was achieved. The manufacture, sale,
transportation, and importation of alcoholic beverages
anywhere in the country were prohibited.
IV
A
By 1933, support for Prohibition had substantially
diminished but not vanished completely. Thirty-eight
state conventions eventually ratified the Twenty-first
Amendment, but 10 States either rejected or took no
action on the Amendment. Section 1 of the Twenty-first
Amendment repealed the Eighteenth Amendment and
thus ended nationwide Prohibition, but §2, the provision
at issue here, gave each State the option of banning alco-
hol if its citizens so chose.
——————
12 Lower court decisions issued between the enactment of the Webb-
Kenyon Act and the ratification of the Eighteenth Amendment inter-
preted the Act this way. See Evansville Brewing Assn. v. Excise
Comm’n of Jefferson Cty., Ala., 225 F. 204 (ND Ala. 1915); Southern
Express Co. v. Whittle, 194 Ala. 406, 69 So. 652 (1915); Brennen v.
Southern Express Co., 106 S. C. 102, 90 S.E. 402 (1916); Charleston &
W. C. R. Co. v. Gosnell, 106 S. C. 84, 90 S.E. 264 (1916) (Hydrick, J.,
concurring); Monumental Brewing Co. v. Whitlock, 111 S. C. 198, 97
S.E. 56 (1918). See also Pacific Fruit & Produce Co. v. Martin, 16 F.
Supp. 34, 39–40 (WD Wash. 1936); Friedman, Constitutional Law:
State Regulation of Importation of Intoxicating Liquor Under Twenty-
first Amendment, 21 Cornell L. Q. 504, 509 (1936).
Cite as: 588 U. S. ____ (2019) 21
Opinion of the Court
As we have previously noted, the text of §2 “closely
follow[ed]” the operative language of the Webb-Kenyon
Act, and this naturally suggests that §2 was meant to
have a similar meaning. Craig, 429 U.S., at 205–206.
The decision to follow that unusual formulation is espe-
cially revealing since the drafters of §2, unlike those who
framed the Webb-Kenyon Act, had no need to worry that a
more straightforward wording might trigger a constitu-
tional challenge. Accordingly, we have inferred that §2
was meant to “constitutionaliz[e]” the basic understanding
of the extent of the States’ power to regulate alcohol that
prevailed before Prohibition. Id., at 206. See also
Granholm, supra, at 484. And as recognized during that
period, the Commerce Clause did not permit the States to
impose protectionist measures clothed as police-power
regulations. See supra, at 14–15. See also, e.g., Railroad
Co. v. Husen, 95 U.S. 465, 472 (1878) (a State “may
not, under the cover of exerting its police powers, substan-
tially prohibit or burden either foreign or inter-state
commerce”).
This understanding is supported by the debates on the
Amendment in Congress13 and the state ratifying conven-
tions. The records of the state conventions provide no
evidence that §2 was understood to give States the power
to enact protectionist laws,14 “a privilege [the States] had
——————
13 See, e.g., 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah) (§2 of
Twenty-first Amendment would “incorporat[e] [Webb-Kenyon] perma-
nently in the Constitution of the United States”); id., at 4168 (state-
ment of Sen. Fess) (“[T]he second section of the joint resolution . . . is
designed to permit the Federal authority to assist the States that want
to be dry to remain dry”); id., at 4518 (statement of Rep. Robinson)
(“Section 2 attempts to protect dry states”).
14 See Nielson, No More “Cherry-Picking”: The Real History of the
21st Amendment’s §2, 28 Harv. J. L. & Pub. Pol’y 281, 286, n. 21
(2004). See generally E. Brown, Ratification of the Twenty-first
Amendment to the Constitution of the United States; State Convention
Records and Laws (1938).
22 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
not enjoyed at any earlier time.” Granholm, supra, at 485.
B
Although our later cases have recognized that §2 cannot
be given an interpretation that overrides all previously
adopted constitutional provisions, the Court’s earliest
cases interpreting §2 seemed to feint in that direction. In
1936, the Court found that §2’s text was “clear” and saw
no need to consider whether history supported a more
modest interpretation, State Bd. of Equalization of Cal. v.
Young’s Market Co., 299 U.S. 59, 63–64 (1936)—an ap-
proach even the dissent rejects, see infra, at 24, n. 16;
post, at 2.15 The Court read §2 as granting each State
plenary “power to forbid all importations which do not
comply with the conditions which it prescribes,” Young’s
Market, supra, at 62; see also Ziffrin, Inc. v. Reeves, 308
U.S. 132, 138–139 (1939), including laws that discrimi-
——————
15 The dissent characterizes the Court as a “committee of nine” that
has “stray[ed] from the text” of the Twenty-first Amendment and
“impose[d] [its] own free-trade rules” on the States. Post, at 8, 15
(opinion of J. GORSUCH). This is empty rhetoric. The dissent itself
strays from a blinkered reading of the Amendment. The dissent
interprets §2 of the Amendment to mean more than it literally says,
arguing that §2 covers the residency requirements at issue even though
they are not tied in any way to what the Amendment actually addresses,
namely, “the transportation or importation” of alcohol across state
lines. See post, at 2, n. 1. And the dissent agrees that §2 cannot be
read as broadly as one might think if its language were read in isola-
tion and not as part of an integrated constitutional scheme. See post,
at 2. The dissent asserts that §2 does not abrogate all previously
adopted constitutional provisions, just the dormant Commerce Clause.
But the dissent does not say whether it thinks §2 allows the States to
adopt alcohol regulations that serve no conceivable purpose other than
protectionism. Even the dissent below did not go that far. See n. 18,
infra. If §2 gives the States carte blanche to engage in protectionism,
we suppose that Tennessee could restrict licenses to persons who can
show that their lineal ancestors have lived in the State since 1796 when
the State entered the Union. Does the dissent really think that this is
what §2 was meant to permit?
Cite as: 588 U. S. ____ (2019) 23
Opinion of the Court
nated against out-of-state products. See, e.g., Young’s
Market, supra, at 62; Mahoney v. Joseph Triner Corp., 304
U.S. 401, 403 (1938); Indianapolis Brewing Co. v. Liquor
Control Comm’n, 305 U.S. 391, 394 (1939). The Court
went so far as to assume that the Fourteenth Amendment
imposed no barrier to state legislation in the field of alco-
hol regulation. See Young’s Market, supra, at 64 (“A clas-
sification recognized by the Twenty-first Amendment
cannot be deemed forbidden by the Fourteenth”).
With subsequent cases, however, the Court saw that §2
cannot be read that way, and it therefore scrutinized state
alcohol laws for compliance with many constitutional
provisions. See, e.g., 44 Liquormart, Inc. v. Rhode Island,
517 U.S. 484 (1996) (Free Speech Clause); Larkin v.
Grendel’s Den, Inc., 459 U.S. 116 (1982) (Establishment
Clause); Craig v. Boren, supra (Equal Protection Clause);
Wisconsin v. Constantineau, 400 U.S. 433 (1971) (Due
Process Clause); Department of Revenue v. James B. Beam
Distilling Co., 377 U.S. 341 (1964) (Import-Export
Clause).
The Court also held that §2 does not entirely supersede
Congress’s power to regulate commerce. Instead, after
evaluating competing federal and state interests, the
Court has ruled against state alcohol laws that conflicted
with federal regulation of the export of alcohol, Hostetter,
377 U.S., at 333–334, federal antitrust law, Midcal Alu-
minum, 445 U.S., at 110–111, 113–114; 324 Liquor Corp.
v. Duffy, 479 U.S. 335, 346–347, 350–351 (1987), and
federal regulation of the airwaves, Capital Cities Cable,
Inc. v. Crisp, 467 U.S. 691, 713, 716 (1984).
As for the dormant Commerce Clause, the developments
leading to the adoption of the Twenty-first Amendment
have convinced us that the aim of §2 was not to give
States a free hand to restrict the importation of alcohol for
purely protectionist purposes. See Granholm, supra, at
486–487; Bacchus, 468 U.S., at 276.
24 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
C
Although some Justices have argued that §2 shields all
state alcohol regulation—including discriminatory laws—
from any application of dormant Commerce Clause doc-
trine,16 the Court’s modern §2 precedents have repeatedly
rejected that view. We have examined whether state
alcohol laws that burden interstate commerce serve a
State’s legitimate §2 interests. And protectionism, we
have stressed, is not such an interest. Ibid.
Applying that principle, we have invalidated state alco-
hol laws aimed at giving a competitive advantage to in-
state businesses. The Court’s decision in Bacchus “pro-
vides a particularly telling example.” Granholm, supra, at
487. There, the Court was confronted with a tax exemp-
tion that favored certain in-state alcohol producers. In
defending the law, the State argued that even if the dis-
criminatory exemption violated “ordinary Commerce
Clause principles, it [was] saved by the Twenty-first
Amendment.” Bacchus, 468 U.S., at 274. We rejected
that argument and held instead that the relevant question
was “whether the principles underlying the Twenty-first
Amendment are sufficiently implicated by the [discrimina-
——————
16 See, e.g., Granholm v. Heald, 544 U.S. 460, 497–498 (2005)
(THOMAS, J., dissenting); Healy v. Beer Institute, 491 U.S. 324, 349
(1989) (Rehnquist, C. J., dissenting); 324 Liquor Corp. v. Duffy, 479
U.S. 335, 352–353 (1987) (O’Connor, J., dissenting); Bacchus Imports,
Ltd. v. Dias, 468 U.S. 263, 281–282 (1984) (Stevens, J., dissenting).
The dissent rehashes this debate, see post, at 5–8, 14, asserting that
the Webb-Kenyon Act, and thus §2, were “understood” to repudiate not
only the original-package cases, but also the antidiscrimination rule
articulated in cases including Scott v. Donald, 165 U.S. 58 (1897). But
this Court’s modern §2 decisions—not simply the lower court decisions
at which the dissent takes aim, see post, at 6, n. 3—establish that those
enactments, though no doubt aimed at granting States additional
“discretion to calibrate alcohol regulations to local preferences,” post, at
2, did not exempt States from “the nondiscrimination principle of the
Commerce Clause.” Granholm, supra, at 487.
Cite as: 588 U. S. ____ (2019) 25
Opinion of the Court
tory] exemption . . . to outweigh the Commerce Clause
principles that would otherwise be offended.” Id., at 275.
Ultimately, we held that §2 did not save the disputed tax
because it clearly aimed “ ‘to promote a local industry’ ”
rather than “to promote temperance or to carry out
any other purpose of the Twenty-first Amendment.” Id.,
at 276.
The same went for the state law in Healy v. Beer Insti-
tute, 491 U.S. 324 (1989), which required out-of-state
shippers of beer to affirm that their wholesale price for
products sold in Connecticut was no higher than the prices
they charged to wholesalers in bordering States. Connect-
icut argued that the “Twenty-first Amendment sanc-
tion[ed]” this law “regardless of its effect on interstate
commerce,” id., at 341, but we held that the law violated
the Commerce Clause, noting that it “discriminate[d]
against brewers and shippers of beer engaged in interstate
commerce” without justification “by a valid factor unrelated
to economic protectionism,” id., at 340–341.17
Most recently, in Granholm, we struck down a set of
discriminatory direct-shipment laws that favored in-state
wineries over out-of-state competitors. After surveying
the history of §2, we affirmed that “the Twenty-first
Amendment does not immunize all laws from Commerce
Clause challenge.” 544 U.S., at 488. We therefore exam-
ined whether the challenged laws were reasonably neces-
sary to protect the States’ asserted interests in policing
underage drinking and facilitating tax collection. Id., at
489–493. Concluding that the answer to that question
was no, we invalidated the laws as inconsistent with the
——————
17 Justice Scalia, for his part, thought the “statute’s invalidity [was]
fully established by its facial discrimination against interstate com-
merce”—discrimination that in his view “eliminate[d] the immunity
afforded by the Twenty-first Amendment.” Healy, supra, at 344 (opin-
ion concurring in part and concurring in judgment) (citing Bacchus,
supra, at 275–276).
26 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
dormant Commerce Clause’s nondiscrimination principle.
Id., at 492–493.
To summarize, the Court has acknowledged that §2
grants States latitude with respect to the regulation of
alcohol, but the Court has repeatedly declined to read §2
as allowing the States to violate the “nondiscrimination
principle” that was a central feature of the regulatory
regime that the provision was meant to constitutionalize.
Id., at 487.
D
The Association resists this reading. Although it con-
cedes (as it must under Granholm) that §2 does not give
the States the power to discriminate against out-of-state
alcohol products and producers, the Association presses
the argument, echoed by the dissent, that a different rule
applies to state laws that regulate in-state alcohol distri-
bution. There is no sound basis for this distinction.18
1
The Association’s argument encounters a problem at the
outset. The argument concedes that §2 does not shield
state laws that discriminate against interstate commerce
with respect to the very activity that the provision explicitly
addresses—the importation of alcohol. But at the same
time, the Association claims that §2 protects something
that §2’s text, if read literally, does not cover—laws re-
stricting the licensing of domestic retail alcohol stores.
That reading is implausible. Surely if §2 granted States
the power to discriminate in the field of alcohol regulation,
——————
18 The Association’s argument is more extreme than that of the dis-
sent below, which recognized that in-state distribution laws that “serve
no purpose besides ‘economic protectionism’ ” remain subject to
dormant Commerce Clause scrutiny. Byrd v. Tennessee Wine and
Spirits Retailers Assn., 883 F.3d 608, 633 (CA6 2018) (Sutton, J.,
concurring in part and dissenting in part) (quoting Bacchus, supra,
at 276).
Cite as: 588 U. S. ____ (2019) 27
Opinion of the Court
that power would be at its apex when it comes to regulat-
ing the activity to which the provision expressly refers.
The Association and the dissent point out that
Granholm repeatedly spoke of discrimination against out-
of-state products and producers, but there is an obvious
explanation: The state laws at issue in Granholm discrim-
inated against out-of-state producers. See 883 F.3d, at
621. And Granholm never said that its reading of history
or its Commerce Clause analysis was limited to discrimi-
nation against products or producers. On the contrary,
the Court stated that the Clause prohibits state discrimi-
nation against all “ ‘out-of-state economic interests,’ ”
Granholm, 544 U.S., at 472 (emphasis added), and noted
that the direct-shipment laws in question “contradict[ed]”
dormant Commerce Clause principles because they “de-
prive[d] citizens of their right to have access to the mar-
kets of other States on equal terms.” Id., at 473 (emphasis
added). Granholm also described its analysis as con-
sistent with the rule set forth in Bacchus, Brown-Forman
Distillers Corp. v. New York State Liquor Authority, 476
U.S. 573 (1986), and Healy that “ ‘[w]hen a state statute
directly regulates or discriminates against interstate
commerce, or when its effect is to favor in-state economic
interests over out-of-state interests, we have generally
struck down the statute without further inquiry.’ ”
Granholm, supra, at 487 (quoting Brown-Forman, supra,
at 579; emphasis added).
The Association counters that even if the Granholm
Court did not explicitly limit its holding to products and
producers, the Court implicitly did so when it rejected the
argument that its analysis would call into question the
constitutionality of state laws setting up three-tiered
alcohol distribution systems. See Granholm, supra, at
488–489. This argument, which the dissent also advances,
see post, at 12–13, reads far too much into Granholm’s
discussion of the three-tiered model. Although Granholm
28 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
spoke approvingly of that basic model, it did not suggest
that §2 sanctions every discriminatory feature that a State
may incorporate into its three-tiered scheme. At issue in
the present case is not the basic three-tiered model of
separating producers, wholesalers, and retailers, but the
durational-residency requirement that Tennessee has
chosen to impose on new applicants for liquor store licenses.
Such a requirement is not an essential feature of a
three-tiered scheme. Many such schemes do not impose
durational-residency requirements—or indeed any resi-
dency requirements—on individual or corporate liquor
store owners. See, e.g., Brief for State of Illinois et al. as
Amici Curiae 24–25, 27 (identifying States that have
either “dispos[ed] with the durational aspect of the [resi-
dency] requirement” or “d[o] not regulate the residency of
the applicant corporation or partnership”). Other three-
tiered schemes differ in other ways. See, e.g., id., at 24–28
(noting variations); FTC, Possible Anticompetitive Barri-
ers to E-Commerce: Wine 7–9 (July 2003), https://
www .ftc . gov / sites/default/files/documents/reports/possible
-anticompetitive-barriers-e-commerce-wine/winereport2_0.
pdf (as last visited June 24, 2019) (same). Because we
agree with the dissent that, under §2, States “remai[n]
free to pursue” their legitimate interests in regulating the
health and safety risks posed by the alcohol trade, post,
at 12, each variation must be judged based on its own
features.
2
In support of the argument that the Tennessee scheme
is constitutional, the Association and its amici claim that
discriminatory distribution laws, including in-state pres-
ence and residency requirements, long predate Prohibition
and were adopted by many States following ratification of
Cite as: 588 U. S. ____ (2019) 29
Opinion of the Court
the Twenty-first Amendment.19 Indeed, the Association
notes that the 2-year durational-residency requirement
now before us dates back to 1939 and is consistent with
durational-residency regimes adopted by several other
States around the same time.20 According to the Associa-
tion, that history confirms that §2 was intended to broadly
exempt all in-state distribution laws from dormant Com-
merce Clause scrutiny. The dissent relies heavily on this
same argument.
This argument fails for several reasons. Insofar as it
relies on state laws enacted shortly after the ratification of
the Twenty-first Amendment and this Court’s early deci-
sions interpreting it, the Association and the dissent’s
argument does not take into account the overly expansive
interpretation of §2 that took hold for a time in the imme-
diate aftermath of its adoption. See supra, at 22–23.
Thus, some state laws adopted soon after the ratification
of the Twenty-first Amendment may have been based on
an understanding of §2 that can no longer be defended. It
is telling that an argument similar to the one now made
by the Association would have dictated a contrary result in
Granholm, since state laws disfavoring imported products
were passed during this same period. See, e.g., Young’s
Market Co., 299 U.S., at 62 (discriminatory license fee on
imported beer); Mahoney, 304 U.S., at 403 (prohibition on
import of certain liquors); Indianapolis Brewing Co., 305
——————
19 See Granholm, 544 U.S., at 518, and n. 6 (THOMAS, J., dissenting)
(licensing schemes adopted by three-tier States following ratification of
Twenty-first Amendment discriminated “by requiring in-state residency
or physical presence as a condition of obtaining licenses”) (collecting
statutes); Brief for Petitioner 33–34 (collecting residency-requirement
statutes). See also Brief for State of Illinois et al. as Amici Curiae 7–8
(referencing 19th-century state statutes that required “retailers to
reside in-state or to maintain an in-state presence”).
20 See 1939 Tenn. Pub. Acts, ch. 49, §§5–8; Brief for Petitioner 34
(collecting durational-residency requirement statutes); Brief for State of
Illinois et al. as Amici Curiae 24 (same).
30 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
U. S., at 394 (same). But our later cases have rejected this
interpretation of §2. See Granholm, supra, at 487.
Insofar as the Association’s argument is based on state
laws adopted prior to Prohibition, it infers too much from
the existence of laws that were never tested in this Court.
Had they been tested here, there is no reason to conclude
that they would have been sustained. During that time,
the Court repeatedly invalidated, on dormant Commerce
Clause grounds, a variety of state and local efforts to
license those engaged in interstate business,21 and as
noted, pre-Prohibition decisions of this Court and the
lower courts held that state alcohol laws that discriminat-
ed against interstate commerce were unconstitutional, see
supra, at 15.
Contrary to the Association’s contention, not all of these
——————
21 Real Silk Hosiery Mills v. Portland, 268 U.S. 325, 335–336 (1925)
(license tax on solicitors of orders to be filled by an out-of-state manu-
facturer); Shafer v. Farmers Grain Co. of Embden, 268 U.S. 189, 197–
201 (1925) (license requirement for the purchase of grain shipped
immediately out of the State); Stewart v. Michigan, 232 U.S. 665, 669–
670 (1914) (state law requiring a license for catalog sales); Crenshaw v.
Arkansas, 227 U.S. 389, 399–401 (1913) (state law requiring a foreign
corporation actively soliciting sales in State to obtain a license); Dozier
v. Alabama, 218 U.S. 124, 127–128 (1910) (licensing requirement on
the solicitors of photography enlargement services and frames manu-
factured out of State); International Textbook Co. v. Pigg, 217 U.S. 91,
107–111 (1910) (state law requiring an out-of-state educational publish-
ing company to pay a license fee for exchanging materials with custom-
ers); Rearick v. Pennsylvania, 203 U.S. 507, 510–511 (1906) (ordinance
requiring license to solicit orders for out-of-state goods); Norfolk &
Western R. Co. v. Sims, 191 U.S. 441, 449–451 (1903) (state licensing
requirement on express company acting as agent for importer of a
sewing machine); Brennan v. Titusville, 153 U.S. 289, 306–308 (1894)
(licensing tax on persons engaged in trade on behalf of firms doing
business outside the State); Corson v. Maryland, 120 U.S. 502, 505–
506 (1887) (state licensing requirement as applied to agent of out-of-
state firm soliciting sales); Welton v. Missouri, 91 U.S. 275, 278, 282–
283 (1876) (state law requiring payment of license tax by sellers of out-
of-state goods).
Cite as: 588 U. S. ____ (2019) 31
Opinion of the Court
decisions involved discrimination against alcohol produced
out of State or alcohol importers. The tax in Walling, for
example, applied to those engaged in the business of sell-
ing imported alcohol within the State. 116 U.S. 446. And
in concluding that the law violated the Commerce Clause,
the Court affirmed that, without the dormant Commerce
Clause, there would “be no security against conflicting
regulations of different states, each discriminating in
favor of its own products and citizens, and against the
products and citizens of other states.” Id., at 456–457
(emphasis added). So too, the dispensary law in Scott was
challenged on the ground that it discriminated “against
products of other States and against citizens of other
States.” 165 U.S., at 62 (emphasis added); see also id.,
at 94.
Nor have States historically enjoyed absolute authority
to police alcohol within their borders. As discussed earlier,
far from granting the States plenary authority to adopt
domestic regulations, the Court’s police-power precedents
required an examination of the actual purpose and effect
of a challenged law. See, e.g., Mugler, 123 U.S., at 661
(“It does not at all follow that every statute enacted osten-
sibly for the promotion” of “the public health, the public
morals, or the public safety” is “to be accepted as a legiti-
mate exertion of the police powers of the State”); see also
Husen, 95 U.S., at 472; Welton v. Missouri, 91 U.S. 275,
278 (1876). Cf. H. Black, Intoxicating Liquors §30, p. 40
(1892) (stating that certain 19th-century licensing and
residency requirements were valid because their “purpose
and effect” was to prevent “the unlawful selling of liquors,
and not to discriminate against citizens of other states”
(emphasis added)).
For these reasons, we reject the Association’s overly
broad understanding of §2. That provision allows each
State leeway to enact the measures that its citizens be-
lieve are appropriate to address the public health and
32 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
safety effects of alcohol use and to serve other legitimate
interests, but it does not license the States to adopt protec-
tionist measures with no demonstrable connection to those
interests.
V
Having concluded that §2 does not confer limitless
authority to regulate the alcohol trade, we now apply the
§2 analysis dictated by the provision’s history and our
precedents.
If we viewed Tennessee’s durational-residency require-
ments as a package, it would be hard to avoid the conclu-
sion that their overall purpose and effect is protectionist.
Indeed, two of those requirements—the 10-year residency
requirement for license renewal and the provision that
shuts out all publicly traded corporations—are so plainly
based on unalloyed protectionism that neither the Associa-
tion nor the State is willing to come to their defense. The
provision that the Association and the State seek to pre-
serve—the 2-year residency requirement for initial license
applicants—forms part of that scheme. But we assume
that it can be severed from its companion provisions, see
883 F.3d, at 626–628, and we therefore analyze that
provision on its own.
Since the 2-year residency requirement discriminates on
its face against nonresidents, it could not be sustained if it
applied across the board to all those seeking to operate
any retail business in the State. Cf. C & A Carbone, Inc.
v. Clarkstown, 511 U.S. 383, 391–392 (1994); Lewis v. BT
Investment Managers, Inc., 447 U.S. 27, 39 (1980). But
because of §2, we engage in a different inquiry. Recogniz-
ing that §2 was adopted to give each State the authority to
address alcohol-related public health and safety issues in
accordance with the preferences of its citizens, we ask
whether the challenged requirement can be justified as a
public health or safety measure or on some other legiti-
Cite as: 588 U. S. ____ (2019) 33
Opinion of the Court
mate nonprotectionist ground. Section 2 gives the States
regulatory authority that they would not otherwise enjoy,
but as we pointed out in Granholm, “mere speculation” or
“unsupported assertions” are insufficient to sustain a law
that would otherwise violate the Commerce Clause. 544
U.S., at 490, 492. Where the predominant effect of a law
is protectionism, not the protection of public health or
safety, it is not shielded by §2.
The provision at issue here expressly discriminates
against nonresidents and has at best a highly attenuated
relationship to public health or safety. During the course
of this litigation, the Association relied almost entirely on
the argument that Tennessee’s residency requirements
are simply “not subject to Commerce Clause challenge,”
259 F. Supp. 3d, at 796, and the State itself mounted no
independent defense. As a result, the record is devoid of
any “concrete evidence” showing that the 2-year residency
requirement actually promotes public health or safety; nor
is there evidence that nondiscriminatory alternatives
would be insufficient to further those interests.
Granholm, supra, at 490; see 883 F.3d, at 625–626.
In this Court, the Association has attempted to defend
the 2-year residency requirement on public health and
safety grounds, but this argument is implausible on its
face. The Association claims that the requirement ensures
that retailers are “amenable to the direct process of state
courts,” Brief for Petitioner 48 (internal quotation marks
omitted), but the Association does not explain why this
objective could not easily be achieved by ready alterna-
tives, such as requiring a nonresident to designate an
agent to receive process or to consent to suit in the Ten-
nessee courts. See Cooper v. McBeath, 11 F.3d 547, 554
(CA5 1994).
Similarly unpersuasive is the Association’s claim that
the 2-year requirement gives the State a better opportu-
nity to determine an applicant’s fitness to sell alcohol and
34 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
guards against “undesirable nonresidents” moving into the
State for the purpose of operating a liquor store. Brief for
Petitioner 10 (internal quotation marks omitted). The
State can thoroughly investigate applicants without re-
quiring them to reside in the State for two years before
obtaining a license. Tennessee law already calls for crimi-
nal background checks on all applicants, see Tenn. Code
Ann. §57–3–208, and more searching checks could be
demanded if necessary. As the Fifth Circuit observed in a
similar case, “[i]f [the State] desires to scrutinize its appli-
cants thoroughly, as is its right, it can devise nondiscrimi-
natory means short of saddling applicants with the ‘bur-
den’ of residing” in the State. Cooper, 11 F.3d, at 554.
The 2-year residency requirement, in any event, poorly
serves the goal of enabling the State to ensure that only
law-abiding and responsible applicants receive licenses.
As the Tennessee attorney general explained, if a nonresi-
dent moves to the State with the intention of applying for
a license once the 2-year period ends, the TABC will not
necessarily have any inkling of the future applicant’s
intentions until that individual applies for a license, and
consequently, the TABC will have no reason to begin an
investigation until the 2-year period has ended. App. to
Brief in Opposition 17a. And all that the 2-year require-
ment demands is residency. A prospective applicant is not
obligated during that time “to be educated about liquor
sales, submit to inspections, or report to the State.” Ibid.
The 2-year residency requirement is not needed to en-
able the State to maintain oversight over liquor store oper-
ators. In Granholm, it was argued that the prohibition on
the shipment of wine from out-of-state sources was justi-
fied because the State could not adequately monitor the
activities of nonresident entities. Citing “improvements in
technology,” we found that argument insufficient. 544
U.S., at 492. See also Cooper, supra, at 554 (“In this age
of split-second communications by means of computer
Cite as: 588 U. S. ____ (2019) 35
Opinion of the Court
networks . . . there is no shortage of less burdensome, yet
still suitable, options”). In this case, the argument is even
less persuasive since the stores at issue are physically
located within the State. For that reason, the State can
monitor the stores’ operations through on-site inspections,
audits, and the like. See §57–3–104. Should the State
conclude that a retailer has “fail[ed] to comply with state
law,” it may revoke its operating license. Granholm, 544
U.S., at 490. This “provides strong incentives not to sell
alcohol” in a way that threatens public health or safety.
Ibid.
In addition to citing the State’s interest in regulatory
control, the Association argues that the 2-year residency
requirement would promote responsible alcohol consump-
tion. According to the Association, the requirement makes
it more likely that retailers will be familiar with the com-
munities served by their stores, and this, it is suggested,
will lead to responsible sales practices. Brief for Petitioner
48–49. The idea, it seems, is that a responsible neighbor-
hood proprietor will counsel or cut off sales to patrons who
are known to be abusing alcohol, who manifest the effects
of alcohol abuse, or who perhaps appear to be purchas-
ing too much alcohol. No evidence has been offered that
durational-residency requirements actually foster such sales
practices, and in any event, the requirement now before us
is very poorly designed to do so.
For one thing, it applies to those who hold a license, not
to those who actually make sales. For another, it requires
residence in the State, not in the community that a store
serves. The Association cannot explain why a proprietor
who lives in Bristol, Virginia, will be less knowledgeable
about the needs of his neighbors right across the border in
Bristol, Tennessee, than someone who lives 500 miles
away in Memphis. And the rationale is further under-
mined by other features of Tennessee law, particularly the
lack of durational-residency requirements for owners of
36 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
Opinion of the Court
bars and other establishments that sell alcohol for on-
premises consumption. §57–4–201.
Not only is the 2-year residency requirement ill suited to
promote responsible sales and consumption practices (an
interest that we recognize as legitimate, contrary to the
dissent’s suggestion, post, at 9, 12, 14), but there are
obvious alternatives that better serve that goal without
discriminating against nonresidents. State law empowers
the relevant authorities to limit both the number of retail
licenses and the amount of alcohol that may be sold to an
individual. Cf. §57–3–208(c) (permitting local govern-
ments to “limit . . . the number of licenses issued within
their jurisdictions”); §57–3–204(d)(7)(C) (imposing volume
limits on certain sales of alcohol to patrons); Rules of
TABC, ch. 0100–01, §0100–01–.03(15) (2018) (same). The
State could also mandate more extensive training for
managers and employees and could even demand that
they demonstrate an adequate connection with and
knowledge of the local community. Cf., e.g., Tenn. Code
Ann. §57–3–221 (requiring managers of liquor stores to
obtain permits, satisfy background checks, and undergo
“alcohol awareness” training). And the State of course
remains free to monitor the practices of retailers and to
take action against those who violate the law.
Given all this, the Association has fallen far short of
showing that the 2-year durational-residency requirement
for license applicants is valid. Like the other discrimina-
tory residency requirements that the Association is unwill-
ing to defend, the predominant effect of the 2-year resi-
dency requirement is simply to protect the Association’s
members from out-of-state competition. We therefore hold
that this provision violates the Commerce Clause and is
not saved by the Twenty-first Amendment.22
——————
22 Our analysis and conclusion apply as well to the provision requir-
ing all officers and directors of corporate applicants to satisfy the 2-year
Cite as: 588 U. S. ____ (2019) 37
Opinion of the Court
* * *
The judgment of the Court of Appeals for the Sixth
Circuit is affirmed.
It is so ordered.
——————
residency requirement. See 883 F.3d, at 623.
Cite as: 588 U. S. ____ (2019) 1
GORSUCH, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 18–96
_________________
TENNESSEE WINE AND SPIRITS RETAILERS
ASSOCIATION, PETITIONER v. RUSSELL F.
THOMAS, EXECUTIVE DIRECTOR OF THE
TENNESSEE ALCOHOLIC BEVERAGE
COMMISSION, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE SIXTH CIRCUIT
[June 26, 2019]
JUSTICE GORSUCH, with whom JUSTICE THOMAS joins,
dissenting.
Alcohol occupies a complicated place in this country’s
history. Some of the founders were enthusiasts; Benjamin
Franklin thought wine was “proof that God loves us.”
Letter from B. Franklin to A. Morellet (July 1779), in 7
Writings of Benjamin Franklin 437 (A. Smyth ed. 1907).
Many in the Prohibition era were decidedly less enamored;
they saw “liquor [a]s a lawlessness unto itself.” Duck-
worth v. Arkansas, 314 U.S. 390, 398 (1941) (Jackson, J.,
concurring in result). Over time, the people have adopted
two separate constitutional Amendments to adjust and
then readjust alcohol’s role in our society. But through it
all, one thing has always held true: States may impose
residency requirements on those who seek to sell alcohol
within their borders to ensure that retailers comply with
local laws and norms. In fact, States have enacted resi-
dency requirements for at least 150 years, and the Ten-
nessee law at issue before us has stood since 1939. Today
and for the first time, the Court claims to have discovered
a duty and power to strike down laws like these as uncon-
stitutional. Respectfully, I do not see it.
2 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
Start with the text of the Constitution. After the
Nation’s failed experiment with Prohibition, the people
assembled in conventions in each State to adopt the Twenty-
first Amendment. In §1, they repealed the Eighteenth
Amendment’s nationwide prohibition on the sale of alco-
hol. But in §2, they provided that “[t]he transportation or
importation into any State . . . for delivery or use therein
of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited.” The Amendment thus embodied a
classically federal compromise: Nationwide prohibition
ended, but States gained broad discretion to calibrate
alcohol regulations to local preferences. And under
the terms of this compromise, Tennessee’s law imposing a
two-year residency requirement on those who seek to
sell liquor within its jurisdiction would seem perfectly
permissible.1
Of course, §2 does not immunize state laws from all
constitutional claims. Everyone agrees that state laws
must still comply with, say, the First Amendment or the
Equal Protection Clause. Ante, at 11–12. But the chal-
lenge before us isn’t based on any constitutional provision
like that. Instead, we are asked to decide whether Ten-
nessee’s residency requirement impermissibly discrimi-
nates against out-of-state residents and recent arrivals in
violation of the “dormant Commerce Clause” doctrine.
And that doctrine is a peculiar one. Unlike most constitu-
tional rights, the dormant Commerce Clause doctrine
——————
1 The
Court suggests that Tennessee’s residency requirement may fall
outside the terms of the Amendment because retailers may not be
involved in the “transportation or importation” of liquor into the State.
Ante, at 26. But the parties do not dispute that “transportation or
importation” into the State is involved here. And understandably so:
Unless the liquor stores intend to sell only Tennessee-made liquor (and
no one so alleges), it is hard to see how transportation or importation
would not be involved.
Cite as: 588 U. S. ____ (2019) 3
GORSUCH, J., dissenting
cannot be found in the text of any constitutional provision
but is (at best) an implication from one. Under its banner,
this Court has sometimes asserted the power to strike
down state laws that discriminate against nonresidents on
the ground that they usurp the authority to regulate
interstate commerce that the Constitution assigns in
Article I to Congress. But precisely because the Constitu-
tion assigns Congress the power to regulate interstate
commerce, that body is free to rebut any implication of
unconstitutionality that might otherwise arise under the
dormant Commerce Clause doctrine by authorizing States
to adopt laws favoring in-state residents. Prudential Ins.
Co. v. Benjamin, 328 U.S. 408, 434–436 (1946).
And that’s exactly what happened here. In the Webb-
Kenyon Act of 1913, Congress gave the States wide lati-
tude to restrict the sale of alcohol within their borders.
See 37 Stat. 699 (codified at 27 U.S. C. §122). Not only is
that law still on the books today, §2 of the Twenty-first
Amendment closely “followed the wording of the 1913
Webb-Kenyon Act.” Ante, at 11, n. 5. Accordingly, the
people who adopted the Amendment naturally would have
understood it to constitutionalize an “exception to the
normal operation of the [dormant] Commerce Clause.”
Craig v. Boren, 429 U.S. 190, 206 (1976). After all, what
Congress can do by statute “surely the people may do . . .
through the process of amending our Constitution.”
Granholm v. Heald, 544 U.S. 460, 494 (2005) (Stevens, J.,
dissenting). So in this area, at least, we should not be in
the business of imposing our own judge-made “dormant
Commerce Clause” limitations on state powers.
What the relevant constitutional and statutory texts
suggest, history confirms. Licensing requirements for the
sale of liquor are older than the Nation itself. Byse, Alco-
holic Beverage Control Before Repeal, 7 Law & Contemp.
Prob. 544, 544–547 (1940). Colonial authorities generally
allowed sales only by those who were deemed “ ‘fit and
4 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
suitable’ ” and who agreed to post a bond conditioned upon
compliance with local regulations. Id., at 545. States
started adopting residency requirements as early as 1834,
when New Hampshire began requiring any person who
sold liquor “in any quantity less than one gallon” to obtain
a license “from the selectmen of the town or place where
such person resides.” State v. Adams, 6 N. H. 532, 533
(1834). In 1845, Missouri adopted a law nearly identical
to the Tennessee statute now before us, requiring those
seeking to sell liquor to have resided in the State for two
years. Mo. Rev. Stat. app., p. 1099. In the decades that
followed, several other States and Territories followed suit
and enacted laws like Tennessee’s.2
At the time these residency requirements were adopted
they were widely understood to be constitutional, and
courts generally upheld them against legal challenges. H.
Black, Laws Regulating the Manufacture and Sale of
Intoxicating Liquors §30, pp. 39–40, and n. 33 (1892)
(collecting cases). Indeed, in the mid-19th century this
Court “recognized a broad authority in state governments
to regulate the trade of alcoholic beverages within their
borders free from implied restrictions under the Com-
merce Clause.” Craig, 429 U.S., at 205 (citing the License
Cases, 5 How. 504, 579 (1847)).
Things became more contentious only toward the end of
the 19th century. By then, this Court had begun to take a
more muscular approach to the dormant Commerce
Clause and started using that implied doctrine to strike
down state laws that restricted the sale of imported liquor.
See Bowman v. Chicago & Northwestern R. Co., 125 U. S.
——————
2 See, e.g., 1859 Neb. Terr. Laws p. 256; Iowa Code §1575 (1860); 1875
Pa. Laws p. 42; N. Y. Rev. Stat. ch. 29, §23 (1896); S. C. Code Ann. §562
(1902); Minn. Stat. §1529 (1905); R. I. Gen. Laws, ch. 123, §2 (1909);
1911 Ala. Acts no. 259; Neb. Rev. Stat. §3844 (1913); Ind. Code §8323(e)
(1914).
Cite as: 588 U. S. ____ (2019) 5
GORSUCH, J., dissenting
465 (1888); Leisy v. Hardin, 135 U.S. 100 (1890). But this
judicial activism did not go unnoticed, and in 1890 Con-
gress responded by passing the Wilson Act. Ch. 728, 26
Stat. 313 (codified at 27 U.S. C. §121). That law sought to
bolster the authority of States to regulate the distribution
of liquor within their borders by providing that liquor
shipped into a State would “upon arrival in such State . . .
be subject to the operation and effect of the laws of such
State . . . to the same extent and in the same manner as
though such [liquor] had been produced in such State.”
Still, the Court did not seem to get the message. A
second wave of dormant Commerce Clause attacks on
state laws soon followed, and in the process they high-
lighted some of the Wilson Act’s limitations. In Scott v.
Donald, 165 U.S. 58 (1897), the Court addressed South
Carolina’s state monopoly system for the sale of liquor,
which required state agents to favor domestic products
and prohibited consumers from receiving out-of-state
shipments for personal use. The Court held that this
system unconstitutionally discriminated in favor of domes-
tic products “as against similar products of the other
States.” Id., at 101. Citing the text of the Wilson Act,
including the phrase “to the same extent and in the same
manner,” the Court emphasized that the Act did not go so
far as to authorize States to “discriminate injuriously
against products of other States.” Id., at 100. Then, in
Rhodes v. Iowa, 170 U.S. 412 (1898), the Court further
curbed the States’ authority to restrict liquor distribution
by construing the Wilson Act’s phrase “upon arrival in
such State” to mean arrival at the purchaser’s address,
rather than arrival within the State’s borders. Id., at 421,
426; see also Vance v. W. A. Vandercook Co., 170 U.S. 438
(1898).
Once more, however, Congress stepped in to repudiate
this Court’s decisions, this time in unmistakably sweeping
language. In the Webb-Kenyon Act of 1913, Congress
6 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
went so far as to “[take] the protection of interstate com-
merce away” from the distribution of liquor within a
State’s borders. Clark Distilling Co. v. Western Maryland
R. Co., 242 U.S. 311, 325 (1917) (emphasis added). The
language Congress used could not have been plainer: The
Act “prohibited” any “shipment or transportation” of alco-
holic beverages “into any State” when they are “intended,
by any person interested therein, to be received, pos-
sessed, sold, or in any manner used . . . in violation of any
law of such State.” 27 U.S. C. §122. Within a few years,
the Court conceded the Webb-Kenyon Act’s constitutional-
ity, acknowledging along the way that the law was de-
signed to—and did—“prevent the immunity characteristic
of interstate commerce from being used to permit the
receipt of liquor through such commerce in States contrary
to their laws.” Clark Distilling, 242 U.S., at 324.3
This history bears special relevance because everyone
agrees that, whatever other powers §2 grants the States,
——————
3 The Court cites a few pre-Prohibition cases—from one federal dis-
trict court and two state courts—that, it says, construed Webb-Kenyon
to preserve a rule against discrimination. Ante, at 20, n. 12. But these
cases offer negligible support. True, two cases construed the Act’s
authorization of “any laws” as limited to “valid laws,” a category from
which these courts excluded laws discriminating against the products of
other States. See Evansville Brewing Assn. v. Excise Comm’n of Jeffer-
son Cty., Ala., 225 F. 204, 208 (ND Ala. 1915); Brennen v. Southern
Express Co., 106 S. C. 102, 108–111, 90 S.E. 402, 404 (1916). But there
is little reason to think courts would have considered residency re-
quirements for liquor retailers “invalid,” as those laws had generally
been upheld prior to Webb-Kenyon. And at least one of the cited cases
appears to support the opposite view: “[A]ll commands or prohibitions
ancillary and reasonably related to the state’s purpose to promote
temperance . . . cannot be thwarted or annulled on any idea that
constitutional rights are thereby violated.” Southern Express Co. v.
Whittle, 194 Ala. 406, 436, 69 So. 652, 661 (1915). At any rate, a few
scattered, thinly reasoned state and district court cases hardly settle
anything.
Cite as: 588 U. S. ____ (2019) 7
GORSUCH, J., dissenting
at a minimum it “ ‘constitutionaliz[ed]’ ” the similarly
worded Webb-Kenyon Act. Ante, at 11, n. 5, 21. Nor can
there be much doubt how most everyone understood the
terms of the Act and the Amendment that embodied it.
Because “centralized regulation did not work,” the Twenty-
first Amendment both ended nationwide prohibition in §1
and authorized local control in §2. Yablon, The Prohibi-
tion Hangover: Why We Are Still Feeling the Effects of
Prohibition, 13 Va. J. Soc. Pol’y & L. 552, 584 (2006). As a
leading study noted at the time, “it was a mistake to re-
gard the United States as a single community in which a
uniform policy of liquor control could be enforced.” R.
Fosdick & A. Scott, Toward Liquor Control 10 (1933)
(Fosdick & Scott). Ours is a vast and diverse Nation, and
those who adopted the Amendment believed that what
works for one State may not work for another. Consistent
with this widespread public understanding of the Amend-
ment’s terms, at least 18 States adopted residency re-
quirements for retailers within the first 15 years after its
ratification.4
This Court’s initial cases also reflected the same under-
standing of the Amendment’s effect. Just a few years after
ratification, a unanimous Court upheld discriminatory
state liquor laws against a dormant Commerce Clause
attack, explaining that “to construe the Amendment as
saying, in effect: [the State] must let imported liquors
compete with the domestic on equal terms . . . would in-
volve not a construction of the Amendment, but a rewrit-
——————
4 Granholm v. Heald, 544 U.S. 460, 518, and n. 6 (2005) (THOMAS, J.,
dissenting) (collecting state statutes); Brief for Petitioner 33–34 (same).
See also Note, Economic Localism in State Alcoholic Beverage Laws—
Experience Under the Twenty-first Amendment, 72 Harv. L. Rev. 1145,
1148–1149, and n. 25 (1959). At least 10 States, including Tennessee,
required a fixed period of residency of one year or more. Brief for
Petitioner 34 (collecting statutes).
8 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
ing of it.” State Bd. of Equalization of Cal. v. Young’s
Market Co., 299 U.S. 59, 62 (1936). Other early cases
reached similar conclusions. See, e.g., Mahoney v. Joseph
Triner Corp., 304 U.S. 401, 403 (1938) (“[D]iscrimination
against imported liquor is permissible”); Indianapolis
Brewing Co. v. Liquor Control Comm’n, 305 U.S. 391, 394
(1939) (“Whether the Michigan law should not more
properly be described as a protective measure, we have no
occasion to consider,” for “whatever its character, the law
is valid”). In short, this Court “recognized from the start”
that the Twenty-first Amendment allowed the States to
regulate alcohol “ ‘unfettered by the Commerce Clause.’ ”
Granholm, 544 U.S., at 517 (THOMAS, J., dissenting).5
Straying from the text, state practice, and early prece-
dent, and leaning instead on the Amendment’s famously
sparse legislative history, the Court says it can find no
evidence that §2 was intended to authorize “protectionist”
state laws. Ante, at 21, 22 n. 15. But even there plenty of
evidence can be found that those who ratified the Amend-
ment wanted the States to be able to regulate the sale of
liquor free of judicial meddling under the dormant Com-
merce Clause—and there is no evidence they wanted
judges to have the power to decide that state laws restricted
——————
5 The Court discounts the compelling evidence of postratification
practice because, it suggests, States may have been relying on the
Court’s expansive interpretation of §2 in State Bd. of Education of Cal.
v. Young’s Market, 299 U.S. 59 (1936), rather than their own inde-
pendent understanding of the Amendment. Ante, at 29. But most of
the residency requirements were enacted before that November 1936
decision. Although many of the statutes were codified after Young’s
Market, a large majority were enacted earlier. Compare, e.g., Wyo.
Stat. Ann. §53–204 (1945); Idaho Code Ann. §18–130 (1940); R. I. Gen.
Laws ch. 163 §4 (1938); N. J. Rev. Stat. §33:1–25 (1937); with 1935 Wy.
Sess. Laws ch. 87; 1935 Idaho Sess. Laws ch. 103; 1934 Rawle I. Laws p. 52;
1933 N. J. Laws p. 1193.
Cite as: 588 U. S. ____ (2019) 9
GORSUCH, J., dissenting
competition “too much.”6 After all, both before Prohibi-
tion and after repeal, robust competition in the liquor
industry was far from universally considered an unalloyed
good; lower prices enabled higher consumption and invited
social problems along the way. T. Pegram, Battling De-
mon Rum 94–96 (1998); Fosdick & Scott 43–44, 81. The
point of §2 was to allow each State the opportunity to
assess for itself the costs and benefits of free trade in
alcohol. Reduced competition and increased prices were
foreseeable consequences of allowing such unfettered state
regulation, but they were consequences the people willingly
accepted with the compromise of the Twenty-first
Amendment.7
——————
6 See, e.g., 76 Cong. Rec. 4143 (1933) (statement of Sen. Blaine) (“The
purpose of section 2 is to restore to the States by constitutional
amendment absolute control in effect over interstate commerce affect-
ing intoxicating liquors”); id., at 4225 (statement of Sen. Swanson) (“[I]t
is left entirely to the States to determine in what manner intoxicating
liquors shall be sold or used and to what places such liquors may be
transported”); Ratification of the Twenty-first Amendment to the
Constitution of the United States: State Convention Records and Laws
50 (E. Brown ed. 1938) (statement of President Robinson of the Con-
necticut convention) (“[F]undamentally our fight has been . . . for the
return to the peoples of the several states of their constitutional right to
govern themselves in their internal affairs”); id., at 174 (statement of
Del. Simmons to the Kentucky convention) (“The regulation of the sale
of liquor is a state concern”); id., at 247 (statement of Mme. Chairman
Gaylord of the Missouri convention) (“We have never been in favor of a
National Regulation to take the place of the 18th Amendment . . . . We
believe that each state should work out sane and sensible liquor control
measures, responsive to the sentiment of the people of each state”); id.,
at 322 (statement of Gov. White of Ohio) (“[T]he control of intoxicating
liquors presents a problem of first magnitude,” and “[t]he solution of
the problem will be returned to the several states”).
7 The majority worries that giving full effect to §2 might allow a State
to pass a statute restricting licenses to persons whose ancestors have
resided in the State for 200 years. Ante, at 22, n. 15. But under parts
of the Constitution that §2 left intact, such as the Equal Protection and
10 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
That leaves only our modern precedent to consider—and
even here the initial returns support Tennessee. In
Hostetter v. Idlewild Bon Voyage Liquor Corp., 377 U.S.
324 (1964), for example, this Court addressed a New York
law that interfered with the federally regulated sale of
alcohol to passengers departing from an airport, which the
passengers would not receive until they arrived at their
“foreign destination.” Id., at 325. Emphasizing that
“ultimate delivery and use” was “in a foreign country,” this
Court held that the Twenty-first Amendment did not
permit New York to “prevent transactions carried on
under the aegis of a law passed by Congress in the exer-
cise of its explicit power under the Constitution to regulate
commerce with foreign nations.” Id., at 333–334. But at
the same time, the Court took pains to reassure everyone
that the States’ core authority to “restrict, regulate, or
prevent the traffic and distribution of intoxicants within
[their] borders” remained “unquestioned” and “unconfined”
by the dormant Commerce Clause. Id., at 330; see also
Capital Cities Cable, Inc. v. Crisp, 467 U.S. 691, 713
(1984) (describing “the core §2 power” as a State’s authority
“directly to regulate the sale or use of liquor within its
borders”).
Consistent with that understanding, this Court in Heu-
blein, Inc. v. South Carolina Tax Comm’n, 409 U.S. 275
(1972), unanimously upheld a South Carolina law permit-
ting producers to transfer liquor to in-state wholesalers
only through “resident representative[s].” Id., at 277.
Because the requirement was an “appropriate element in
——————
Due Process clauses, any state law must bear a rational relationship to
a legitimate state interest. Besides and understandably, the evidence
before us suggests that the people who ratified §2 weren’t as concerned
with States adopting fanciful laws like the majority’s as they were with
eliminating a very real threat—that judges would continue to use the
dormant Commerce Clause to meddle with state regulatory authority.
Cite as: 588 U. S. ____ (2019) 11
GORSUCH, J., dissenting
the State’s system” of regulating the sale of alcohol “ ‘within
its borders,’ ” this Court held that the State could enforce
it “ ‘unconfined by traditional Commerce Clause limita-
tions.’ ” Id., at 283 (quoting Hotstetter, 377 U.S., at 330).
To be sure, in even later cases the Court declined to up-
hold state laws that, in substantial effect, regulated the
sale of alcohol in other states. E.g., Brown-Forman Dis-
tillers Corp. v. New York State Liquor Authority, 476 U.S.
573 (1986); Healy v. Beer Institute, 491 U.S. 324 (1989).
But those decisions merely tracked the text of the Twenty-
first Amendment, which grants States the power to regu-
late liquor only “for delivery or use therein.”
The truth is, things have begun to shift only in very
recent years. Bending to the same impulses that moved it
at the beginning of the 20th century, this Court has lately
begun flexing its dormant Commerce Clause muscles once
more to strike down state laws even in core areas of state
authority under §2. So, for example, in Bacchus Imports,
Ltd. v. Dias, 468 U.S. 263 (1984), the Court considered
Hawaii’s tax exemption for certain liquor products manu-
factured in-state. As the Court described it, Hawaii’s sole
“purpose” in adopting its tax exemption was “ ‘to promote a
local industry,’ ” not “to promote temperance.” Id., at 276.
And a narrow majority considered this fact fatal because
the law, in its judgment, did not implicate “any clear
concern” of the Amendment—even though the Amendment
was adopted to insulate state regulation from judicial
charges of unduly interfering with interstate commerce.
Ibid.
Yet, even under as bold a decision as Bacchus, Tennes-
see’s residency requirement should survive—and easily. A
residency requirement may not be the only way to ensure
retailers will be amenable to state regulatory oversight,
but it is surely one reasonable way of accomplishing that
12 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
admittedly legitimate goal.8 Residency also increases the
odds that retailers will have a stake in the communities
they serve.9 As Judge Sutton observed in the proceedings
below, this same commonsense rationale may explain why
Congress requires federal court of appeals judges to live
within their circuits, 28 U.S. C. §44(c), and district court
judges to live within their districts, §134(b). Byrd v. Ten-
nessee Wine and Spirits Retailers Assn., 883 F.3d 608, 633
(2018). Surely, Tennessee cannot be faulted for sharing a
similar view. Of course, Tennessee’s residency require-
ment reduces competition in the liquor market by exclud-
ing nonresidents or recent arrivals. But even that effect
might serve a legitimate state purpose by increasing the
price of alcohol and thus moderating its use, an objective
States have always remained free to pursue under the
bargain of the Twenty-first Amendment.10
To defend its judgment today, the Court is thus left to
try to wring support from our 2005 decision in Granholm.
Granholm extended Bacchus and its reasoning to strike
down on dormant Commerce Clause grounds a state law
for disfavoring out-of-state wine producers, holding that
——————
8 See Southern Wine & Spirits of Am., Inc. v. Division of Alcohol and
Tobacco Control, 731 F.3d 799, 811 (CA8 2013) (Colloton, J.);
Hinebaugh v. James, 119 W. Va. 162, 164, 192 S.E. 177, 179 (1937);
Welsh v. State, 126 Ind. 71, ___, 25 N.E. 883, 885 (1890); Note, 72
Harv. L. Rev., at 1148.
9 See Byrd v. Tennessee Wine and Spirits Retailers Assn., 883 F.3d
608, 633 (2018) (CA6 2018) (Sutton, J., concurring in part and dissent-
ing in part); Southern Wine & Spirits, 731 F.3d, at 811.
10 See Brief for U. S. Alcohol Policy Alliance et al. as Amici Curiae 5–
24; Lawson, The Future of The Three-Tiered System as a Control of
Marketing Alcoholic Beverages, in Social and Economic Control of
Alcohol 32–34 (C. Jurkiewicz & M. Painter eds., 2008); 883 F.3d, at 634
(opinion of Sutton, J.); cf. 44 Liquormart, Inc. v. Rhode Island, 517 U.S.
484, 504 (1996) (acknowledging a State’s legitimate interest in “reduc-
ing alcohol consumption”).
Cite as: 588 U. S. ____ (2019) 13
GORSUCH, J., dissenting
“Section 2 does not allow States to regulate the direct
shipment of wine on terms that discriminate in favor of in-
state producers.” 544 U.S., at 476 (emphasis added). But
even this holding doesn’t spell doom for Tennessee’s re-
tailer residency requirements. As even the Court today
acknowledges, “Granholm repeatedly spoke of discrimina-
tion against out-of-state products and producers” and did
not refer more generally to discrimination against nonres-
idents. Ante, at 27.11
To claim Granholm’s support, the majority is thus forced
to characterize Granholm’s framing of the issue before it
as purely incidental—the state laws at issue there hap-
pened to discriminate against out-of-state products, so the
Court just happened to talk a lot about products. As the
Court seems to read Granholm, then, it really meant to
disapprove any discrimination against out-of-staters. But
this badly misreads Granholm. The distinction between
producers and other levels of the distribution system was
integral to its reasoning and result—in fact, it was precisely
how Granholm sought to reconcile its result with the
longstanding tradition of state residency requirements. So
yes, Granholm held that the Twenty-first Amendment
does not protect laws that discriminate against out-of-
state products, but it also expressly reaffirmed the “ ‘un-
questionabl[e] legitima[cy]’ ” of state laws that require “ ‘all
liquor sold for use in the State [to] be purchased from a
licensed in-state wholesaler.’ ” 544 U.S., at 489 (quoting
North Dakota v. United States, 495 U.S. 423, 432 (1990);
id., at 447 (Scalia, J., concurring in judgment)). And I
would have thought that restatement of the law more than
——————
11 See also Granholm, 544 U.S., at 486 (“States may not give a dis-
criminatory preference to their own producers”); id., at 484–485 (“The
Amendment did not give States the authority to pass nonuniform laws
in order to discriminate against out-of-state goods, a privilege they had
not enjoyed at any earlier time”).
14 TENNESSEE WINE AND SPIRITS
RETAILERS ASSN. v. THOMAS
GORSUCH, J., dissenting
enough to resolve today’s case.
Having now effectively abandoned Granholm’s distinc-
tion between products and their distribution and promis-
ing to subject both to dormant Commerce Clause scrutiny,
it’s hard not to wonder what’s left of Webb-Kenyon and §2.
For its part, the Court assures us that it will still allow
each State “leeway to enact the measures that its citizens
believe are appropriate” to address public health and
safety. Ante, at 31 (emphasis added). Yet the Court then
proceeds to turn around and dismantle the longstanding
judgment of the citizens of Tennessee on just these ques-
tions, dismissing them as “protectionist measures with no
demonstrable connection” to public health and safety.
Ibid. And it promises it will not sustain any state law
whose protectionist “effect[s] . . . predomina[te].” Ante, at
32–33.
What are lower courts supposed to make of this? How
much public health and safety benefit must there be to
overcome this Court’s worries about protectionism “pre-
dominat[ing]”? Does reducing competition in the liquor
market, raising prices, and thus reducing demand still
count as a public health benefit, as many States have long
supposed? And if residency requirements are problematic,
what about simple physical presence laws? After all, can’t
States “thoroughly investigate applicants” for liquor li-
censes without requiring them to have a brick-and-mortar
store in the State? Ante, at 34. The Court offers lower
courts no more guidance than to proclaim delphically that
“each variation must be judged based on its own features.”
Ante, at 28.
As judges, we may be sorely tempted to “rationalize” the
law and impose our own free-trade rules for all goods and
services in interstate commerce. Certainly, that tempta-
tion seems to have proven nearly irresistible for this Court
when it comes to alcohol. And as Justice Cardozo once
observed, “an intellectual passion . . . for symmetry of form
Cite as: 588 U. S. ____ (2019) 15
GORSUCH, J., dissenting
and substance” is “an ideal which can never fail to exert
some measure of attraction upon the professional experts
who make up the lawyer class.” B. Cardozo, The Nature of
the Judicial Process 34 (1921). But real life is not always
so tidy and satisfactory, and neither are the democratic
compromises we are bound to respect as judges. Like it or
not, those who adopted the Twenty-first Amendment took
the view that reasonable people can disagree about the
costs and benefits of free trade in alcohol. They left us
with clear instructions that the free-trade rules this Court
has devised for “cabbages and candlesticks” should not be
applied to alcohol. Carter v. Virginia, 321 U.S. 131, 139
(1944) (Frankfurter, J., concurring). Under the terms of
the compromise they hammered out, the regulation of
alcohol wasn’t left to the imagination of a committee of
nine sitting in Washington, D. C., but to the judgment of
the people themselves and their local elected representa-
tives. State governments were supposed to serve as “lab-
orator[ies]” of democracy, New State Ice Co. v. Liebmann,
285 U.S. 262, 311 (1932) (Brandeis, J., dissenting), with
“broad power to regulate liquor under §2,” Granholm, 544
U.S., at 493. If the people wish to alter this arrangement,
that is their sovereign right. But until then, I would
enforce the Twenty-first Amendment as they wrote and
originally understood it.