Hash Over

Order in the cork

It's amusing to ponder, but a collection of cork dorks have wrapped themselves in the Constitution and may cause the U.S. Supreme Court to strike down a Texas state law. This past spring, a troika of Houston wine aficionados, including former state rep. Roland R. Pennington, filed suit against state regulators charging the ban on direct wine shipments to Texas consumers from wineries, wine clubs, and Internet vendors violates the Commerce Clause of the Constitution.

"You can have lobster flown in from Maine, or a shirt from L.L. Bean. Can you have a bottle of wine? No!" says Fort Worth attorney and Star-Telegram wine writer Sterling Steves, who filed the suit along with the Houston law firm of Cotham, Harwell & Evans. The suit argues that the Commerce Clause gives Congress, not state officials, the right to regulate interstate commerce. But that hasn't mattered much until now. Powerful state liquor wholesalers, fearing the slightest competitive chink in their state-sanctioned distribution systems (put in place after passage of the 21st Amendment, which repealed prohibition to thwart mob control), have valiantly fought to keep the ban in place.

And while 20 states and the District of Columbia permit direct consumer wine shipments in some form, 23 states -- including Texas -- forbid it outright. In seven additional states, sending a Chardonnay to Uncle Kermit from out-of-state is a felony. In fact, in its last session, the Texas legislature considered a wholesaler-backed measure that would have made those who dared ship a bottle of cab to a Texas consumer eligible for jail time. The bill, however, failed. Then, earlier this month, the U.S. House passed what it dubbed the "21st Amendment Enforcement Act," a move that brings the jaws of the federal government to bear on hapless wine bandits, allowing states such as Texas to use the federal courts to prosecute them. This led The Wall Street Journal to warn in an August 12 editorial that such Congressional meddling, if signed into law, would run afoul of the Constitution, but the paper added that it may provide the vehicle for what is really needed: a legal challenge from some affected wine producer or wine geek. Enter Steves and company. Their suit will be decided by Judge Melinda Harmon in U.S. District Court in Houston. And Steves says he and his cohorts fully intend to ship their case all the way to the Supreme Court and let the corks fall where they may.

 
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