It's not about the internet and it's not about wine. It's about the Constitution.

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AMENDMENT XXI

Passed by Congress February 20, 1933. Ratified December 5, 1933.

Section 1.
The eighteenth article of amendment to the Constitution of the United States is hereby repealed.

Section 2.
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.

Section 3.
This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several States, as provided in the Constitution, within seven years from the date of the submission hereof to the States by the Congress.
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Today's news reports indicate that, based questions asked by the justices on oral argument, the Supreme Court may be prepared to legalize internet wine sales. Of course, regardless of what the court or the press thinks, this a constitutional case involving one of the clearest sentences in the whole document.

Section 2 of the 21st Amendment clearly states that the States have the entire power to regulate the sale of "intoxicating liquors" within their borders. If a state wishes to require that alcoholic beverages sold for consumption in that state be sold only through state-licensed wholesalers or retailers they have that power, and most states do to assure that state taxes are collected and sales to minors are prevented.

The justices appear to be swayed by arguments that the "commerce clause" gives the Congress exclusive jurisdiction over all questions respecting interstate commerce. If that were so, no state could forbid the importation of any product without Congressional approval. That would mean, for example, that Pennsylvania's ban on the sale of bottle rockets and other explosive fireworks could be defeated by importing them from a state like South Carolina where they are legal. The commerce clause forbids the imposition of duties for the transit of goods from one state into another and requires each state to treat legal articles of commerce from within and outside the state on an equal footing, but it does not give Congress a plenary power to declare what are to be legal articles of commerce in all the states.

Before passage of the 18th Amendment, some states already prohibited the manufacture or sale of intoxicating beverages. This was not considered a violation of the Constitution at that time. But under the plaintiffs' theory in the present case, those pre-19th Amendment state statutes must have been unconstitutional. But, even if you take that view, the 21st Amendment does not merely restore the status quo ante which it would have done if only the language of Section 1 had been submitted to the states. The 21st includes Section 2 which explicitly gives to the States (and Territories and Possessions - including the Congress in its constitutional role as the exclusive legislator for the District of Columbia) the sole power to regulate the importation and sale of alcoholic beverages within their borders; whereas, the 18th Amendment had given Congress and the States concurrent jurisdiction to legislate the enforcement of alcohol prohibition. Perhaps most tellingly, the phrase "Congress shall have power to enforce this article by appropriate legislation" which, with minor variations, occurs in a majority of the post-Bill of Rights amendments, is not included in the 21st Amendment.

Personally, I would scrap virtually all alcohol regulation and taxation. But I am rather libertarian philosophically. As a constitutionalist in practical affairs, it seems clear to me that the answer to this case is to leave the matter to the states no matter how badly some of them may mess it up. And, some of them mess things up pretty thoroughly. I have spent most of my drinking life in Virginia and Pennsylvania, two states where the government operates the liquor stores; and I have a home in South Carolina where the private liquor stores are marked with a large "red dot" to warn the good people to stay away. Let the courts and Congress in the act and all you get is the same mess everywhere.