Sunday, July 4, 2010

This Independence Day Think About The Limits Of Liberty.

Liberty takes many forms. The ability to easily obtain legal products of our own choosing without government interference is not a trivial freedom. Today, many people shop over the internet and have their purchases shipped to them. You can easily buy guns that way, but not alcoholic beverages.

In the USA, alcohol is more heavily regulated and restricted than guns. In part, that is because guns have a very powerful lobby and their own Constitutional Amendment.

But alcohol has a Constitutional Amendment too, it just cuts the wrong way.

The 21st Amendment, ratified in 1933, ended National Prohibition. It is very short and simple. The first section repeals the 18th Amendment. The third gives states seven years to ratify it (they took less than one).

The second section, necessary to obtain ratification, is where the trouble lies. It says "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."

That means the states may regulate alcohol as they see fit, including banning it altogether, regardless of any burden on interstate commerce that would normally run afoul of the Constitution's Commerce Clause. Furthermore, if you take alcohol into any state in violation of that state's laws, you commit a federal offense too.

Most of the states have used this authority to create a mandatory three-tier system for the distribution of alcoholic beverages. The three tiers are producers, distributors and retailers. The mandatory part means no tier may be bypassed by anyone, including consumers who may only legally buy from state-licensed retailers. In most cases, the laws prevent cross-ownership too. Producers may not own interests in distributors or retailers, and so on.

Everything said about these state laws will be "in most cases" because the 50 states each regulate alcohol differently, which all by itself is a significant burden on interstate commerce.

Imagine that instead of buying L. L. Bean clothes directly from L. L. Bean in Maine and having them delivered to your home you were required by law to buy them from a brick-and-mortar store with no connection to L. L. Bean, who bought them from a distributor who also has no connection to L. L. Bean but has an exclusive franchise from your state government to be the state's only legal source for L. L. Bean clothing.

Retailers who want to carry L. L. Bean clothing must buy their L. L. Bean merchandise from the sole distributor in the state who carries it, whose monopoly is enforced by state law.

The state government, as well as the independent distributor and independent retailer, all have something to say about which L. L. Bean clothes are available to you and how much they cost. Will they offer every garment in every color and size that L. L. Bean makes? Maybe, but probably not. While you probably will have a choice of several retailers who may offer different selections, the monopolist distributor will control absolutely which L. L. Bean products are available to those retailers and thus to you. Unless a state border is nearby, you're out of luck.

And even if it is you may still be out of luck because that same distributor may have obtained the monopoly in the adjacent state too.

Now imagine that on an out-of-state trip you have discovered a clothing manufacturer that is similar to L. L. Bean but a bit more suited to your taste. You return home only to discover that none of the state-franchised wholesalers choose to carry that line. Remember, you are only allowed to buy clothes at state-licensed clothing stores. You cannot legally buy clothing online or over the phone. Once again you are stuck.

Although you may travel to where that other clothing brand is sold to buy it, even that may at least technically violate state and federal law.

Let's assume for purposes of our example that clothing is not burdened with excessive taxes the way alcohol is. Even so, the lack of competition inherent in this state-run system makes its products more expensive than they otherwise would be. Maybe instead of a L. L. Bean polo costing $30 it costs $50. You'll get used to it.

Okay, so not being able to buy clothing (or alcohol) except in a narrowly government circumscribed way is inconvenient but it's not the same as being enslaved by Communist (or Capitalist) overlords.

Yet it still sucks.

What I have described above is the state of the law now. H.R. 5034 would give the states an even greater presumption of authority in alcoholic beverage matters. It is arguable whether or not that is even possible. If you are a drinker, it is almost certainly not desirable.

On the one hand, H.R. 5034 hasn't even gone to committee yet, which is where most legislative proposals die. On the other hand, H.R. 5034 has 122 cosponsors, mostly Democrats but with a fair sprinkling of Republicans too. Will this Congress's first bi-partisan legislation be a further burden on alcohol consumers? Are we the sole whipping boy on which everyone can agree?


Rob K said...

While I agree entirely that alcohol is way over regulated, you've never bought a gun, have you?

Alcohol and guns are both heavily regulated, just in somewhat different ways. You cannot buy guns over the internet and have them shipped directly to you. That is a federal crime. If you want to buy a gun outside of your state of residence, you must receive it from an FFL in your home state. You don't have to fill out a form 4473 every time you buy alcohol, a form that the retailer has to keep on file forever, and turn over to ATF if they go out of business. The retailer doesn't have to notify the police and the ATF if you buy more than one bottle in a transaction. The retailers don't have to record the serial number of every bottle.

Our liberty is being trampled on left and right and it needs to stop.

Chuck Cowdery said...

Exactly. Can you order alcohol on the internet and pick it up at a convenient local retailer? No, you can't.

I know it's not a perfect analogy but in some ways it is easier to legally buy a gun from out-of-state than it is to legally buy alcohol from out-of-state.

With guns, the regulations make it burdensome. With alcohol they make it impossible.