Opinion

The CARE Act and the Constitution

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Rebecca Spicer
Vice President, National Beer Wholesalers Association
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      Rebecca Spicer

      Rebecca Spicer is the Vice President of Public Affairs & Communications at the National Beer Wholesalers Association and previously served in the George W. Bush White House and at WJLA-TV in Washington, D.C.

Do you support the U.S. Constitution, the 10th Amendment and the 21st Amendment?

Do you agree that state legislatures — not the federal government or unelected federal judges — are typically best positioned to decide on alcohol policy issues?

If you answer “yes” to these questions, then you’ll likely answer “yes” to one more question: Do you support H.R. 1161, the Community Alcohol Regulatory Effectiveness (CARE) Act of 2011?

The CARE Act is a direct response to those who want to legislate from the bench and limit states’ rights through litigation.

More than half the states have been sued by plaintiffs wishing to restrict the ability of states to regulate alcohol as granted by the 21st Amendment to the Constitution. Simply put, this litigation is costing states millions of dollars — millions of taxpayers’ dollars at times of record deficits — because these plaintiffs just don’t like certain state laws regarding alcohol. So instead of making changes through the state legislature — which is held accountable by the citizens — these plaintiffs are choosing to make changes through the courts, hoping to convince unelected federal judges to change or overturn the laws elected lawmakers in your home state enacted.

That’s why nearly 40 state attorneys general wrote Congress last year, prior to the CARE Act’s introduction, asking Congress to “…bring a stop to the erosion of state alcohol laws by re-enforcing the states’ ability to regulate alcohol…” It’s also why the CARE Act has been supported by a wide range of groups including law enforcement, state alcohol regulators and other organizations including Concerned Women for America.

The CARE Act of 2011 already has support from an impressive, bipartisan group of more than 50 members of Congress who are co-sponsors of this legislation. The co-sponsors represent more than half the states, spanning coast to coast.

Unfortunately, some opponents of this legislation are claiming that it is “unconstitutional.” That is a very curious claim since the language of the CARE Act is consistent with the Constitution and previous congressional intent. Consider the 10th Amendment and the 21st Amendment:

  • The 10th Amendment (1791) says that “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
  • The 21st Amendment (1933) gives states the right to regulate alcohol, stating, “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.”

So, the Constitution gives states the right to regulate alcohol, language which is reflected in the CARE Act.

Some opponents are also claiming that the CARE Act will prevent direct shipping of wine, or it will allow states to discriminate against out-of-state wineries, but that simply is not the case. Language in the CARE Act directly mirrors language in the 2005 Granholm v. Heald Supreme Court ruling on that very issue. So rather than undercut or circumvent the high court’s ruling to prevent discrimination against out-of-state wineries, the CARE Act actually reflects the Supreme Court ruling. As for direct shipping of wine, if your home state allows you to have wine shipped from a winery (and there are nearly 40 such states), the CARE Act will not change that. In fact, the CARE Act will actually reaffirm the state’s ability to enact laws that reflect the will of the people — including if that will is to allow direct shipping of wine.

  • Kurtis D. Davis

    I am not a lawyer. I am an ordinary person living in the State of Oklahoma, and this is an effort to share with you what is going on where I live, with regards to government regulation of alcohol consumption. First of all, public intoxication is illegal—meaning the slightest amount more than zero is illegal, further punishable by fine and or imprisonment. If you are stopped while driving, the intoxication amounts to Driving While Intoxicated. People are routinely put under arrest on charges of Driving Under the Influence, even though they are only slightly intoxicated—thinking it is perfectly legal to be slightly intoxicated. After all, the State authorizes the public sale and consumption of alcohol. Upon arrival at police headquarters, these individuals are chained to a bench, and in essence, every Constitutional right they ever thought they had simply vanishes. First their right to avoid self incrimination is stolen by mandatory “scientific alcohol testing”, as well as their right to avoid unreasonable search without warrant, and right to be secure in their person. In the event the arrested individual refuses to incriminate themselves, they have their driver’s license suspended on the spot, being informed that even though said license is a purchased right, it is a “privilidge” which the government can suspend at will—without due process. Current considerations involve madatory blood sampling upon refusal of “breath testing” for alcohol. The person’s right to remain silent is sacrificed, in that the individual is forced to answer at least one question, being further coerced into signing a rather complex legal form—and denied the right to legal counsel during said process. Thousands of people are routinely put through the sad process just described, each weekend, which ends up costing them perhaps $4000.00 in fines,fees, and other related expenses—in addition to a permanent arrest record and damge to reputation. All because they simply went to a trendy restaraunt, drank a beer with a sandwich, and then were stopped while driving home. WITH THE MULTITUDE OF PEOPLE BEING SO ROBBED OF THEIR CONSTITUTIONAL RIGHTS, WHAT DO YOU THINK WILL ULTIMATELY HAPPEN TO THE ESSENTIAL JURY PROCESS IN THE STATE OF OKLAHOMA? People do not get mad—THEY GET EVEN!!! I cannot say how the great State of Oklahoma ever arrived at such insane theft of Constitutional rights, but I can assure you of this—there’s some damned serious drinking going on around these parts because of it.