As our nation’s capital continues to expand its power at an alarming rate, many conservatives (including me) are seeking shelter in the power of the states to protect the liberty of their citizens, on issues ranging from health insurance to the right of a secret ballot in deciding whether to form unions.
The nationwide call for state autonomy has grown so passionate that some are attempting to hijack it for wicked purposes.
H.R. 5034, sponsored by Representative Bill Delahunt of Massachusetts, invokes the language of states’ rights to advance one of the few powers clearly denied the states in the original Constitution: economic protectionism. This bill would give states the power to regulate interstate alcohol shipments, even in a discriminatory manner if there is a “justification” for doing so.
The law essentially would overturn Grandholm v. Heald, a 2005 U.S. Supreme Court case that I argued, in which the Court struck down discriminatory barriers that blocked wine shipments to consumers across state lines. The regulations benefited liquor wholesalers, who want to control every drop of alcohol and charge hefty middleman fees, while hurting wine consumers who want to buy directly from a vineyard in another state. With the advent of the Internet, this battle plays out every day over products ranging from cars to contact lenses, as middlemen seek to protect their delivery monopolies.
The Commerce Clause was intended to end protectionist trade barriers by the states. Over time, Congress has abused its power under the Commerce Clause to regulate activities that have little or nothing to do with interstate commerce. We must curb the abuses without destroying the critical purpose of the Commerce Clause: to ensure an open national market.
True federalism gives states the power to expand liberty, not to diminish it. Regulation of interstate commerce is a power our Constitution’s framers thought the states could not be trusted to exercise fairly – and they were right.
Clint Bolick is director of the Goldwater Institute Scharf-Norton Center for Constitutional Litigation.
Library of Congress: H.R. 5034
Google Scholar: Grandholm v. Heald
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