Appellee, who, under Federal Bureau of Customs supervision,
purchases bottled intoxicants at wholesale outside New York, brings
them into the State, and, at an airport there, sells them at retail
for delivery abroad to international airline travelers, brought
this action for an injunction and declaratory judgment against
State Liquor Authority members who claimed that appellee's business
violated state law. After long procedural delays, a three-judge
District Court granted the requested relief.
1. Abstention, which is not automatically required, and which
had been requested by neither party, was not warranted in this
protracted litigation, there being no danger that a federal
decision would disrupt state regulation. Pp. 377 U. S.
2. Though the State has power under the Twenty-first Amendment
to regulate transportation through its territory of intoxicants to
avoid their diversion into domestic channels, the Commerce Clause
deprives the State of power to prevent transactions supervised by
the Bureau of Customs involving intoxicants for delivery to
consumers in foreign countries. Pp. 377 U. S.
MR. JUSTICE STEWART delivered the opinion of the Court.
The Twenty-first Amendment to the Constitution, which repealed
the Eighteenth, provides in its second section that
"The transportation or importation into any
Page 377 U. S. 325
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."
This appeal requires consideration of the relationship of this
provision of the Twenty-first Amendment to other provisions of the
Constitution, particularly the Commerce Clause. [Footnote 1
The appellee (Idlewild) is engaged in the business of selling
bottled wines and liquors to departing international airline
travelers at the John F. Kennedy Airport in New York. Its place of
business is leased from the Port of New York Authority for use
solely as "an office in connection with the sale . . . of in-bond
wines and liquors." Idlewild accepts orders only from travelers
whose tickets and boarding cards indicate their imminent departure.
A customer gets nothing but a receipt at the time he gives his
order and makes payment. The liquor which he orders is transferred
directly to the departing aircraft on documents approved by United
States Customs, and is not delivered to the customer until he
arrives at his foreign destination.
The beverages sold by Idlewild are purchased by it from bonded
wholesalers located outside New York State who deal in tax-free
liquors for export. Merchandise ordered by Idlewild is withdrawn
from bonded warehouses on approved Customs documents, copies of
which are mailed by the wholesalers both to Idlewild and to the
United States Customs Office at the airport. A third sealed copy of
the document is given to the bonded trucker who delivers it to the
Customs Office at the airport after he has transported the shipment
to Idlewild's place of business. The contents of each shipment are
recorded by Idlewild, as are withdrawals from inventory
Page 377 U. S. 326
whenever a sale is made, and, when an entire shipment has been
sold, these records are turned over to Customs officials.
Idlewild's records and its physical inventory, as well as the
transfer of the liquor from the bonded trucks to Idlewild's
premises and from those premises to the departing aircraft, are at
all times open to inspection by the Bureau of Customs. Before
Idlewild commenced these business operations in 1960, the Bureau of
Customs inspected its place of business and explicitly approved its
proposed method of operations.
Idlewild commenced doing business in the spring of 1960. A few
weeks later, the New York State Liquor Authority, whose members are
the appellants in this cast, informed Idlewild, upon the advice of
the Attorney General of New York, that its business was illegal
under the provisions of the New York Alcoholic Beverage Control Law
because the business was unlicensed and unlicensable under that
law. [Footnote 2
thereupon brought the present
Page 377 U. S. 327
action for an injunction restraining the appellants from
interfering with its business, and for a judgment declaring that
the provisions of the New York statute, as applied to its business,
were repugnant to the Commerce Clause of the Constitution, and,
under the Supremacy Clause, to the Tariff Act of 1930, under which
the Bureau of Customs had approved Idlewild's business operations.
After lengthy procedural delays, [Footnote 4
] a three-judge District Court granted the
requested relief. 212 F.
. The court expressed doubt that the New York
Alcoholic Beverage Control Law was intended to apply to a business
such as that carried on by Idlewild, both because of the manifest
irrelevance to such a business of many of the law's provisions
] and because the
New York courts
Page 377 U. S. 328
had held that the law was inapplicable to the sale of liquor in
the Free Trade Zone of the Port of New York. During v.
267 App.Div. 383, 46 N.Y.S.2d 385. See also
Rosenblum v. Frankel,
279 App.Div. 66, 108 N.Y.S.2d 6. In view
of the posture of the litigation, the court declined, however, to
defer deciding the merits of the controversy pending a construction
of the statute by the New York courts, although recognizing that "a
technical application of the doctrine of abstention" would under
ordinary circumstances counsel such a course.
On the merits, the court concluded, after reviewing the relevant
cases, that the Commerce Clause rendered constitutionally
impermissible New York's attempt wholly to terminate Idlewild's
business operations. The court conceded that New York has broad
power under the Twenty-first Amendment to supervise and regulate
the transportation of liquor through its territory for the purpose
of guarding against a diversion of such liquor into domestic
channels, but pointed out that
"the Liquor Authority has neither alleged nor proved the
diversion of so much as one bottle of plaintiff's merchandise to
users within the state of New York."
212 F. Supp. at 386. We noted probable jurisdiction,
Hostetter v. Idlewild B.V.L. Corp.,
375 U.S. 809, and, for
the reasons which follow, we affirm the judgment of the District
We hold first that the District Court did not err in declining
to defer to the state courts before deciding this controversy on
its merits. The doctrine of abstention is equitable in its origins,
Railroad Comm'n of Texas v. Pullman Co., 312 U.
, 312 U. S.
-501, and this Court has held that, even
Page 377 U. S. 329
though constitutional issues be involved, "reference to state
courts for construction of statute should not automatically be
made." NAACP v. Bennett, 360 U. S. 471
Unlike many cases in which abstention has been held appropriate,
there was here no danger that a federal decision would work a
disruption of an entire legislative scheme of regulation. [Footnote 6
] We therefore accept the
District Court's decision that abstention was unwarranted here,
where neither party requested it and where the litigation had
already been long delayed, despite the plaintiff's efforts to
expedite the proceedings. [Footnote
Turning, then, to the merits of this controversy, the basic
issue we face is whether the Twenty-first Amendment so far
obliterates the Commerce Clause as to empower New York to prohibit
absolutely the passage of liquor through its territory, under the
supervision of the United States Bureau of Customs acting under
federal law, [Footnote 8
delivery to consumers in foreign countries. For it is not disputed
that, if the commodity involved here were not liquor, but grain or
lumber, the Commerce Clause would clearly deprive New York of any
such power. Lemke v. Farmers Grain Co., 258 U. S.
; Texas & N.O. R. Co. v. Sabine Tram Co.,
227 U. S. 111
Oklahoma v. Kansas Nat. Gas Co., 221 U.
Page 377 U. S. 330
This Court made clear in the early years following adoption of
the Twenty-first Amendment that, by virtue of its provisions, a
State is totally unconfined by traditional Commerce Clause
limitations when it restricts the importation of intoxicants
destined for use, distribution, or consumption within its borders.
Thus, in upholding a State's power to impose a license fee upon
importers of beer, the Court pointed out that,
"[p]rior to the Twenty-First Amendment, it would obviously have
been unconstitutional to have imposed any fee for that privilege.
The imposition would have been void . . . because the fee would be
a direct burden on interstate commerce; and the Commerce Clause
confers the right to import merchandise free into any state, except
as Congress may otherwise provide."
State Board v. Young's Market Co., 299 U. S.
, 299 U. S. 62
] In the same vein,
the Court upheld a Michigan statute prohibiting Michigan dealers
from selling beer manufactured in a State which discriminated
against Michigan beer. Indianapolis Brewing Co. v. Liquor
Comm'n, 305 U. S. 391
"Since the Twenty-first Amendment, . . . the right of a State to
prohibit or regulate the importation of intoxicating liquor is not
limited by the Commerce Clause. . . ."
at 305 U. S. 394
See also Finch & Co. v. McKittrick, 305 U.
This view of the scope of the Twenty-first Amendment with
respect to a State's power to restrict, regulate, or prevent the
traffic and distribution of intoxicants within its borders has
remained unquestioned. See California v. Washington,
358 U. S. 64
in Ziffrin, Inc. v. Reeves, 308 U.
, there was involved a Kentucky statute,
"a long, comprehensive measure (123 sections)
Page 377 U. S. 331
designed rigidly to regulate the production and distribution of
alcoholic beverages through means of licenses and otherwise. The
manifest purpose is to channelize the traffic, minimize the
commonly attendant evils; also to facilitate the collection of
revenue. To this end, manufacture, sale, transportation, and
possession are permitted only under carefully prescribed conditions
and subject to constant control by the state."
at 308 U. S. 134
The Court upheld a provision of that "comprehensive measure" which
prohibited a domestic manufacturer of liquor from delivering his
product to an unlicensed private carrier. The Court noted that
"Kentucky has seen fit to permit manufacture of whiskey only
upon condition that it be sold to an indicated class of customers
and transported in definitely specified ways. These conditions are
not unreasonable, and are clearly appropriate for effectuating the
policy of limiting traffic in order to minimize well known evils,
and secure payment of revenue. The statute declares whiskey removed
from permitted channels contraband subject to immediate seizure.
This is within the police power of the state, and property so
circumstanced cannot be regarded as a proper article of
at 308 U. S. 139
To draw a conclusion from this line of decisions that the
Twenty-first Amendment has somehow operated to
Page 377 U. S. 332
"repeal" the Commerce Clause wherever regulation of intoxicating
liquors is concerned would, however, be an absurd
oversimplification. If the Commerce Clause had been pro
"repealed," then Congress would be left with no
regulatory power over interstate or foreign commerce in
intoxicating liquor. Such a conclusion would be patently bizarre,
and is demonstrably incorrect. In Jameson & Co. v.
Morgenthau, 307 U. S. 171
"the Federal Alcohol Administration Act was attacked upon the
ground that the Twenty-first Amendment to the Federal Constitution
gives to the States complete and exclusive control over commerce in
intoxicating liquors, unlimited by the Commerce Clause, and hence
that Congress has no longer authority to control the importation of
these commodities into the United States."
The Court's response to this theory was a blunt one: "We see no
substance in this contention." Id.
at 307 U. S.
-173. See also United States v. Frankfort
Distilleries, 324 U. S. 293
Both the Twenty-first Amendment and the Commerce Clause are
parts of the same Constitution. Like other provisions of the
Constitution, each must be considered in the light of the other,
and in the context of the issues and interests at stake in any
This principle is reflected in the Court's decision in
Collins v. Yosemite Park Co., 304 U.
. There, it was held that the Twenty-first
Amendment did not give California power to prevent the shipment
into and through her territory of liquor destined for distribution
and consumption in a national park. The Court said that this
traffic did not involve "transportation into California for
delivery or use therein'" within the meaning of the Amendment. "The
delivery and use is in the Park, and under a distinct sovereignty."
Id. at 304 U. S. 538.
This ruling was later characterized by the Court as
Page 377 U. S. 333
"that shipment through a state is not transportation or
importation into the state within the meaning of the Amendment."
Carter v. Virginia, 321 U. S. 131
321 U. S. 137
] See also
Johnson v. Yellow Cab Co., 321 U. S. 383
137 F.2d 274.
We may assume that i,f in Collins,
sought to regulate or control the transportation of the liquor
there involved from the time of its entry into the State until its
delivery at the national park, in the interest of preventing
unlawful diversion into her territory, California would have been
constitutionally permitted to do so. [Footnote 12
] But the Court held that California could not
prevent completely the transportation of the liquor across the
State's territory for delivery and use in a federal enclave within
A like accommodation of the Twenty-first Amendment with the
Commerce Clause leads to a like conclusion in the present case.
Here, ultimate delivery and use is not in New York, but in a
foreign country. The State has not sought to regulate or control
the passage of intoxicants through her territory in the interest of
preventing their unlawful diversion into the internal commerce of
the State. As the District Court emphasized, this case does not
involve "measures aimed at preventing unlawful
Page 377 U. S. 334
diversion or use of alcoholic beverages within New York." 212 F.
Supp. at 386. Rather, the State has sought totally to prevent
transactions carried on under the aegis of a law passed by Congress
in the exercise of its explicit power under the Constitution to
regulate commerce with foreign nations. This, New York cannot
MR. JUSTICE BRENNAN took no part in the consideration or
decision of this case.
"The Congress shall have Power . . . To regulate Commerce with
foreign Nations, and among the several States, and with the Indian
U.S.Const. Art. I, § 8, cl. 3.
The opinion of the New York Attorney General was based primarily
upon the following provisions of the New York law:
"'Sale' means any transfer, exchange or barter in any manner or
by any means. whatsoever for a consideration, and includes and
means all sales made by any person, whether principal, proprietor,
agent, servant or employee of any alcoholic beverage and/or a
warehouse receipt pertaining thereto. 'To sell' includes to solicit
or receive an order for, to keep or expose for sale, and to keep
with intent to sell and shall include the delivery of any alcoholic
beverage in the state."
New York Alcoholic Beverage Control Law, § 13, Subd. 28.
"No person shall manufacture for sale or sell at wholesale or
retail any alcoholic beverage within the state without obtaining
the appropriate license therefor required by this chapter."
New York Alcoholic Beverage Control Law, § 100, Subd. 1.
"No premises shall be licensed to sell liquors and/or wines at
retail for off premises consumption unless said premises shall be
located in a store, the entrance to which shall be from the street
level and located on a public thoroughfare in premises which may be
occupied, operated or conducted for business, trade or industry or
on an arcade or subsurface thoroughfare leading to a railroad
New York Alcoholic Beverage Control Law, § 105, Subd. 2.
19 U.S.C. § 1311. The complaint also relied on the
Export-Import Clause of the Constitution, Art. I, § 10, cl. 2, but
such reliance was obviously misplaced, because New York has not
sought to "lay any Imposts or Duties" upon the merchandise sold by
The appellee's original motion to empanel a three-judge court
under 28 U.S.C. §§ 2281 and 2284 was denied by a single district
judge, who retained jurisdiction pending resolution of the
substantive issues by the state courts. Idlewild Bon Voyage
Liquor Corp. v. Rohan, 188 F.
. The Court of Appeals for the Second Circuit
dismissed on appeal on the ground that it was without jurisdiction,
though expressing the view that a three-judge court should have
been convened. Idlewild Bon Voyage Liquor Corp. v. Rohan,
289 F.2d 426. The appellee's renewed request for a three-judge
court was then denied by a district judge on the ground that
previous District Court rulings in the litigation had established
the "law of this case," and that the Court of Appeals' statement
that a three-judge court should have been convened was "dictum."
Idlewild Bon Voyage Liquor Corp. v. Rohan,
194 F. Supp. 3.
After granting certiorari and a motion for leave to file a petition
for a writ of mandamus, Idlewild Bon Voyage Liquor Corp. v.
368 U.S. 812, this Court, holding that a three-judge
court should have been empaneled, remanded the case to the District
Court "for expeditious action" to that end. Idlewild Bon Voyage
Liquor Corp. v. Epstein, 370 U. S. 713
The court noted, for example:
"The definition of sale in Section 3(28) provides that "To
sell' . . . shall include the delivery of any alcoholic beverage in
the state." This, of course, is inapplicable to plaintiff's sales.
Whatever may be the purpose of Section 105(2) in requiring that a
retail liquor store have an entrance from the street level and be
located on a public thoroughfare, the requirements, which may be
appropriate where liquor purchases are delivered directly to the
customer, seem quite irrelevant to a concern which sells liquor
exclusively for delivery in a foreign country."
212 F. Supp. at 379.
Cf. Government Employees v. Windsor, 353 U.
; American Federation of Labor v. Watson,
327 U. S. 582
Great Lakes Dredge & Dock Co. v. Huffman, 319 U.
; Burford v. Sun Oil Co., 319 U.
, 319 U. S.
-325; Chicago v. Fieldcrest Dairies,
316 U. S. 168
See Louisiana P. & L. Co. v. Thibodaux City,
360 U. S. 25
360 U. S. 29
360 U. S. 31
Allegheny County v. Mashuda Co., 360 U.
, 360 U. S.
The appellants have argued that Idlewild's operations do not, in
fact, conform to the various federal statutory and administrative
standards under authority of which the operations are conducted.
But there is no indication that the Bureau of Customs has ever
questioned the regularity of Idlewild's operations under the
relevant federal law and regulations.
Likewise, in Mahoney v. Joseph Triner Corp.,
304 U. S. 401
Court held that the Equal Protection Clause is not applicable to
imported intoxicating liquor. "A classification recognized by the
Twenty-First Amendment cannot be deemed forbidden by the
at 304 U. S.
Quite independently of the Twenty-first Amendment, the Court has
sustained a State's power, within the confines of the Commerce
Clause, to regulate and supervise the transportation of intoxicants
through its territory. See Duckworth v. Arkansas,
314 U. S. 390
Carter v. Virginia, 321 U. S. 131
Mr. Justice Jackson relied on the Twenty-first
Amendment in concurring in the judgment. 314 U.S. at 314 U. S. 397
MR. JUSTICE BLACK, Mr. Justice Frankfurter, and
Mr. Justice Jackson wrote separate concurrences, relying upon the
Twenty-first Amendment. 321 U.S. at 321 U. S.
-139. Cf. Gordon v. Texas, 355 U.
, upholding a similar state statute in a per
curiam citing both the Twenty-first Amendment and Carter v.
Commonwealth of Virginia, supra.
Prior to the Eighteenth Amendment, Congress passed laws giving
the States a large degree of autonomy in regulating the importation
and distribution of intoxicants. These laws, the Wilson Act and the
Webb-Kenyon Act, are still in force. 27 U.S.C. §§ 121, 122. In
United States v. Gudger, 249 U. S. 373
Court held that, under the Reed amendment of 1917 -- passed by
Congress to strengthen these laws, 39 Stat. 1058, 1069 -- a
prohibition upon transportation "into" a State did not prohibit the
"movement through one state as a mere incident of transportation to
the [place] into which it is shipped." Id.
at 249 U. S. 375
cases cited in note 10 supra.
MR. JUSTICE BLACK, with whom MR. JUSTICE GOLDBERG joins
The appellee, Idlewild Bon Voyage Liquor Corporation, buys wines
and intoxicating liquors from bonded wholesale warehouses, brings
them into the State of New York, and sells them at retail in the
John F. Kennedy Airport. Idlewild does not have and cannot obtain a
New York license; therefore, its business is in violation of New
York law. Idlewild keeps a stock of liquor in New York under
Customs inspection, and customers come into Idlewild's shop, choose
the kind of liquor they want, and pay for it. These retail sales
are just like sales made by New York's licensed and regulated
liquor dealers, with a single difference: other New York retailers
normally make delivery across the counter, while Idlewild arranges
with its customers to put their purchases, under United States
Customs supervision aboard planes so that the customers take
physical possession of the liquor not in New York, but at
destinations abroad. The airport where the sales take place is not
a federal enclave where, even as to liquor, federal law can
constitutionally control, [Footnote
Page 377 U. S. 335
but is New York territory subject to New York, not federal,
jurisdiction. The Court nevertheless strikes down New York's law
barring Idlewild from selling intoxicating liquors in New York. The
ground for invalidating the law is that it conflicts with the
Commerce Clause and with Treasury regulations promulgated under 19
U.S.C. § 1311, under which Idlewild's sales and deliveries to
foreign-bound planes are, for customs purposes, supervised by
Customs officials. I think, however, that, while Customs officials
have the right to perform their duties relative to customs, the
Twenty-first Amendment confers exclusive jurisdiction upon the
State of New York to regulate all liquor business carried on in New
York. Section 2 of this Amendment, which became effective December,
"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
Even though the language of this Amendment clearly leaves the
States free to control the importation of and traffic in liquors
within their boundaries, it was argued in State Board v.
Young's Market Co., 299 U. S. 59
(1936), that it would be a violation of the Commerce Clause and of
the Equal Protection Clause for a State to require a fee of persons
importing beer from outside the State. Pointing out that such a
discrimination would have violated the Commerce Clause before
adoption of the Twenty-first Amendment, this Court held that, since
that Amendment, a State was not required to
"let imported liquors compete with the domestic on equal terms.
To say that would involve not a construction of the amendment, but
a rewriting of it."
at 299 U. S. 62
The Court went on to hold that the claim that the State's
"statutory provisions and the regulations are void under
Page 377 U. S. 336
the equal protection clause may be briefly disposed of. A
classification recognized by the Twenty-first Amendment cannot be
deemed forbidden by the Fourteenth."
at 299 U. S. 64
Following the Young's Market
case, this Court has said and
repeated that, since the Twenty-first Amendment, "the right of a
State to prohibit or regulate the importation of intoxicating
liquor is not limited by the Commerce Clause." Joseph S. Finch
& Co. v. McKittrick, 305 U. S. 395
305 U. S. 398
(1939); Indianapolis Brewing Co. v. Liquor Control Comm'n,
305 U. S. 391
305 U. S. 394
(1939). The principles of these cases have been uniformly followed
until today. E.g., California v. Washington, 358 U. S.
(1958); Ziffrin, Inc., v. Reeves,
308 U. S. 132
(1939). The Court today attempts to distinguish this case from our
previous cases, but I find myself unpersuaded by the Court's
In Young's Market,
the Court found it so clear that the
"broad language" of the Twenty-first Amendment gave States
exclusive power to regulate or tax liquor transactions in those
States that it rather impatiently refused to consider the
Amendment's history urged in limitation of that language.
Young's Market, supra,
299 U.S. at 299 U. S. 63
I agree with Justice Brandeis that history should not be necessary
to prove what is obvious. But now that the Amendment is interpreted
in a way that takes away part of the power that I think was given
to the States by the Amendment and confers it on Customs officials,
it becomes appropriate to look to the history of the Amendment's
adoption. As reported by the Senate Committee on the Judiciary in
S.J.Res. 211, 72d Cong., 2d Sess., the proposed amendment provided
in 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
76 Cong.Rec. 4138 (1933). That language is in the present
Page 377 U. S. 337
But the proposal also contained a Section 3, not found in the
present Amendment; that Section provided,
"Congress shall have concurrent power to regulate or prohibit
the sale of intoxicating liquors to be drunk on the premises where
Proposing to leave even this remnant of federal
control over liquor traffic gave rise to the only real controversy
over the language of the proposed Amendment. Senator Wagner of New
York, who could not have known that his State would, because of
today's opinion, be the first to be denied control of liquor
traffic within the State, opposed Section 3 because it would defeat
the proposed Amendment's purpose "to restore to the States control
of their liquor problem." Id.
at 4145. Senator Wagner
argued that giving the Federal Government even "apparently limited
power" would allow that power to be "extended to boundaries now
undreamed of and unsuspected" by those supporting the proposed
at 4147. It is clear that the opposition to
Section 3 and its elimination from the proposed Amendment rested on
the fear, often voiced during the Senate debate, [Footnote 2/2
] that any grant of power to the
Federal Government, even a seemingly narrow one, could be used to
whittle away the exclusive control over liquor traffic given the
States by Section 2. Having heard those fears expressed, Senator
Robinson of Arkansas, the Senate Majority Leader, asked for a vote
"to strike out section 3." Id.
at 4171. It was because of
these fears that the Senate then voted to take Section 3 out of the
proposed Amendment, while retaining Section 2 and its broad grant
of power to the States. Id.
During the debate, the Senators brought out quite clearly what
plenary powers Section 2, as it now appears in the Twenty-first
Amendment, meant to give the States.
Page 377 U. S. 338
Senator Blaine of Wisconsin, chairman of the subcommittee which
had held hearings on the resolution and floor manager of the
resolution in the Senate, agreed that Section 3 "ought to be taken
out of the resolution" and Section 2 left in, because the
"purpose of section 2 is to restore to the States by
constitutional amendment absolute control in effect over interstate
commerce affecting intoxicating liquors which enter the confines of
Id. at 4143. Speaking of the same section, Senator Walsh of
Montana, also a member of the subcommittee, said,
"The purpose of the provision in the resolution reported by the
committee was to make the intoxicating liquor subject to the laws
of the State once it passed the State line and before it gets into
the hands of the consignee as well as thereafter."
The legislative history, of which these passages are typical,
should be enough to prove that, when the Senators agreed to Section
2, they thought they were returning "absolute control" of liquor
traffic to the States, free of all restrictions which the Commerce
Clause might before that time have imposed. Moreover, by rejecting
Section 3, they thought they were seeing to it that the Federal
Government could not interfere with or restrict the State's
exercise of the power conferred by the Amendment. Therefore, that
the liquor in this case is supervised by United States Customs
officials for customs purposes is immaterial. The Amendment
promises that each State shall decide what is best for itself in
regulating liquor traffic within its boundaries, and the Amendment
no more empowers Customs officials to make that decision for a
State than it empowers Congress to make it. This view was
forcefully expressed by Senator Wagner, who, when urging that
Section 3 be eliminated from the proposed Amendment and the States
be given complete control of liquor traffic, said:
"let the people of each State deal with that subject, and they
will do it more effectively
Page 377 U. S. 339
and more successfully than the Federal Government has done,
because it is not the business of the Federal Government."
That the liquors involved in this case have, in Walsh's and
Blaine's words, "passed the state line" and "enter[ed] the
confines" of the State is beyond dispute. The debates from which I
have quoted show that the Senators intended that, once the liquors
should enter New York, they would be subject to the "absolute
control" of that State. The Twenty-first Amendment promises New
York no less.
Idlewild's liquors, once in the State, are sold at retail to
airline passengers at Kennedy Airport. No one disputes that
Idlewild thus competes with other New York liquor dealers for the
trade of these consumers of liquor. To allow this business to go
unregulated by New York is to interfere with the regulatory power
which this Court, in State Board v. Young's Market Co.,
said each State has under the Twenty-first Amendment.
at 299 U. S. 63
the Court said that a State is perfectly free to set up a state
liquor monopoly or to confer a liquor monopoly upon some one dealer
in the State. It is equally obvious that New York is free to allow
only a limited number of dealers to engage in the liquor business.
It might do this because it wanted to discourage consumption, or to
make it easier to police the liquor traffic, or to accomplish some
other objective the State thought worthwhile to protect against the
evils which can flow from the traffic. In particular, New York
might want to see that sales are not diverted to Idlewild from
other dealers licensed and regulated by the State. Yet today's
interpretation of the Amendment renders New York impotent to
prevent such diversions. Justification for this result is sought by
saying that the Customs officials must be unhampered in their
duties. But giving Customs officials the power to prevent evasion
of customs duties does not immunize
Page 377 U. S. 340
liquor dealers from state regulation. Nor does state regulation
interfere with federal officials' performance of their duties.
Whether Idlewild stays in business is no legitimate concern of the
Customs officials; their concern is that, if Idlewild does do a
liquor business, tax-free liquor not be diverted within the
country, and customs duties not thereby be evaded. Nothing in the
New York licensing scheme interferes with the federal officials'
performance of their duty.
The invalidation of New York's regulation of Idlewild, I think,
makes inroads upon the powers given the States by the Twenty-first
Amendment. Ironically, it was against just this kind of judicial
encroachment that Senators were complaining when they agreed to
S.J.Res. 211 and paved the way for the Amendment's adoption.
Senator Borah of Idaho traced the history of state regulation of
liquor traffic from Justice Taney's decision in the
5 How. 504 (1847), which upheld state power over liquor, through
Bowman v. Chicago & N. R. Co., 125 U.
(1888), which Senator Borah said "wiped out the
Taney decision," to Leisy v. Hardin, 135 U.
(1890), which made the States "powerless to
protect themselves against the importation of liquor into the
States." 76 Cong.Rec. 4170-4171 (1933). Because of this judicial
history, Senator Borah, wanting to guarantee that the States would
not be rendered powerless over liquor traffic, expressed his
uneasiness at leaving anything less than a Constitutional Amendment
"to the protection of the Supreme Court of the United States."
Yet, instead of protecting the States' power to
control liquor traffic, today's interpretation of the Twenty-first
Amendment leaves New York powerless to regulate Idlewild's business
and others like it, and puts the power instead in the hands of
United States Customs officials. I would not interpret the
Amendment that way.
Compare Collins v. Yosemite Park & Curry Co.,
304 U. S. 518
(1938); Johnson v. Yellow Cab Transit Co., 321 U.
76 Cong.Rec. 4143 (1933) (Senator Blaine);
4144-4148 (Senator Wagner); 4177-4178 (Senator Black).