Tennessee Wine and Spirits Retailers Ass'n v. Thomas

NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print
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															SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–96

															_________________

															TENNESSEE WINE AND SPIRITS RETAILERS
ASSOCIATION, PETITIONER v. RUSSELL F. THOMAS, EXECUTIVE
DIRECTOR OF THE TENNESSEE ALCOHOLIC BEVERAGE COMMISSION,
et al.

															on writ of certiorari to the united states
court of appeals for the sixth circuit

															[June 26, 2019]

															Justice Alito delivered the opinion of the
Court.

															The State of Tennessee imposes demanding
durational-residency requirements on all individuals and businesses
seeking to obtain or renew a license to operate a liquor store. One
provision precludes the renewal of a license unless the applicant
has resided in the State for 10 consecutive years. Another provides
that a corporation cannot obtain a license unless all of its
stockholders are residents. The Court of Appeals for the Sixth
Circuit struck down these provisions as blatant violations of the
Commerce Clause, and neither petitioner—an association of Tennessee
liquor retailers—nor the State itself defends them in this
Court.

															The Sixth Circuit also invalidated a provision
requiring applicants for an initial license to have resided in the
State for the prior two years, and petitioner does challenge that
decision. But while this requirement is less extreme than the
others that the Sixth Circuit found to be unconstitutional, we now
hold that it also violates the Commerce Clause and is not shielded
by §2 of the Twenty-first Amendment. Section 2 was adopted as part
of the scheme that ended prohibition on the national level. It
gives each State leeway in choosing the alcohol-related public
health and safety measures that its citizens find desirable. But §2
is not a license to impose all manner of protectionist restrictions
on commerce in alcoholic beverages. Because Tennessee’s 2-year
residency requirement for retail license applicants blatantly
favors the State’s residents and has little relationship to public
health and safety, it is unconstitutional.

															I

															A

															Tennessee, like many other States, requires
alcoholic beverages distributed in the State to pass through a
specified three-tiered system.[ 1 ] Acting through the Tennessee Alcoholic Beverage
Commission (TABC), the State issues different types of licenses to
producers, wholesalers, and retailers of alcoholic beverages. See
Tenn. Code Ann. §57–3–201 (2018). Producers may sell only to
licensed wholesalers; wholesalers may sell only to licensed
retailers or other wholesalers; and only licensed retailers may
sell to consumers. §57–3–404. No person may lawfully participate in
the sale of alcohol without the appropriate license. See, e.g. , §57–3–406.

															Included in the Tennessee scheme are onerous
durational-residency requirements for all persons and compa- nies
wishing to operate “retail package stores” that sell alcoholic
beverages for off-premises consumption (hereinafter liquor stores).
See §57–3–204(a). To obtain an initial retail license, an
individual must demonstrate that he or she has “been a bona fide
resident” of the State for the previous two years.
§57–3–204(b)(2)(A). And to renew such a license—which Tennessee law
requires after only one year of operation—an individual must show
continuous residency in the State for a period of 10 consecutive
years. Ibid. The rule for corporations is also
extraordinarily restrictive. A corporation cannot get a retail
license unless all of its officers, directors, and owners of
capital stock satisfy the durational-residency requirements
applicable to individuals. §57–3–204(b)(3). In practice, this means
that no corporation whose stock is publicly traded may operate a
liquor store in the State.

															In 2012, the Tennessee attorney general was
asked whether the State’s durational-residency requirements violate
the Commerce Clause, and his answer was that the requirements
constituted “trade restraints and barriers that impermissibly
discriminate against interstate commerce.” App. to Brief in
Opposition 11a; see also id. , at 12a (citing Jelovsek v. Bredesen , 545 F.3d 431, 435 (CA6 2008)). In light of that
opinion, the TABC stopped enforcing the requirements against new
applicants. See App. 51, ¶9; id. , at 76, ¶10.

															The Tennessee General Assembly responded by
amending the relevant laws to include a statement of legislative
intent. Citing the alcohol content of the beverages sold in liquor
stores, the Assembly found that protection of “the health, safety
and welfare” of Tennesseans called for “a higher degree of
oversight, control and accountability for individuals involved in
the ownership, management and control” of such outlets.
§57–3–204(b)(4).

															After the amendments became law, the attorney
gen- eral was again asked about the constitutionality of the
durational-residency requirements, but his answer was the same as
before. See App. to Brief in Opposition 13a. Consequently, the TABC
continued its practice of nonenforcement.

															B

															In 2016, respondents Tennessee Fine Wines and
Spirits, LLC dba Total Wine Spirits Beer & More (Total Wine)
and Affluere Investments, Inc. dba Kimbrough Fine Wine &
Spirits (Affluere) applied for licenses to own and operate liquor
stores in Tennessee. At the time, neither Total Wine nor Affluere
satisfied the durational-residency requirements. Total Wine was
formed as a Tennessee limited liability company but is owned by
residents of Maryland, Brief for Respondent Total Wine 10; App. 51,
¶4–5, and Affluere was owned and controlled by two individuals who,
by the time their application was considered, had only recently
moved to the State, see App. 11–12, 20, 22.

															TABC staff recommended approval of the
applications, but petitioner Tennessee Wine and Spirits Retailers
Association (the Association)—a trade association of in-state
liquor stores—threatened to sue the TABC if it granted them. Id. , at 15, ¶17. The TABC’s executive director (a respondent
here) filed a declaratory judgment action in state court to settle
the question of the residency requirements’ constitutionality. Id. , at 17.

															The case was removed to the United States
District Court for the Middle District of Tennessee, and that
court, relying on our decision in Granholm v. Heald , 544 U.S.
460 (2005), concluded that the requirements are
unconstitutional. Byrd v. Tennessee Wine and Spirits
Retailers Assn. , 259 F. Supp. 3d 785, 797 (2017). The
State de- clined to appeal, and Total Wine and Affluere were issued
licenses.

															The Association, however, took the case to the
Court of Appeals for the Sixth Circuit, where a divided panel
affirmed. See Byrd v. Tennessee Wine and Spirits
Retailers Assn. , 883 F.3d 608 (2018). All three judges
acknowledged that the Tennessee residency requirements facially
discriminate against out-of-state economic interests. See id., at 624; id., at 634 (Sutton, J., concurring in
part and dissenting in part). And all three also agreed that
neither the 10-year residency requirement for license renewals nor
the 100-percent-resident shareholder requirement is constitutional
under this Court’s Twenty-first Amendment and dormant Commerce
Clause precedents. See id., at 625–626; id., at 635
(opinion of Sutton, J.).

															The panel divided, however, over the
constitutionality of the 2-year residency requirement for
individuals seeking initial retail licenses, as well as the
provision applying those requirements to officers and directors of
corporate applicants. Applying standard dormant Commerce Clause
scrutiny, the majority struck down the challenged restrictions,
reasoning that they facially discriminate against interstate
commerce and that the interests they are claimed to further can be
adequately served through reasonable, nondiscriminatory
alternatives. Id. , at 623–626. The dissent disagreed,
reading §2 of the Twenty-first Amendment to grant States
“ ‘virtually’ limitless” authority to regulate the in-state
distribution of alcohol, the only exception being for laws that
“serve no purpose besides ‘economic protectionism.’ ” Id. , at 633 (quoting Bacchus Imports, Ltd. v. Dias , 468
U.S. 263 , 276 (1984)). Applying that highly deferential
standard, the dissent would have upheld the 2-year residency
requirement, as well as the provision applying that requirement to
all officers and directors of corporate applicants. The dissent
argued that these provisions help to promote the State’s interests
in “responsible consumption” of alcohol and “orderly liquor
markets.” 883 F. 3d, at 633.

															The Association filed a petition for a writ of
certiorari challenging the decision on the 2-year residency
requirement for initial licenses. Tennessee declined to seek
certiorari but filed a letter with the Court expressing agreement
with the Association’s position.[ 2 ] We granted certiorari, 585 U. S. ___ (2018), in
light of the disagreement among the Courts of Appeals about how to
reconcile our modern Twenty-first Amendment and dormant Commerce
Clause precedents. See 883 F. 3d, at 616 (collecting
cases).

															II

															A

															The Court of Appeals held that Tennessee’s
2-year residency requirement violates the Commerce Clause, which
provides that “[t]he Congress shall have Power . . . [t]o
regulate Commerce with foreign Nations, and among the several
States, and with the Indian Tribes.” Art. I, §8, cl. 3. “Although
the Clause is framed as a positive grant of power to Congress,” Comptroller of Treasury of Md. v. Wynne , 575
U. S. ___, ___ (2015) (slip op., at 5), we have long held that
this Clause also prohibits state laws that unduly restrict
interstate commerce. See, e.g. , ibid. ; Philadelphia v. New Jersey , 437
U.S. 617 , 623–624 (1978); Cooley v. Board of Wardens
of Port of Philadelphia ex rel. Soc. for Relief of Distressed
Pilots , 12 How. 299, 318–319 (1852); Willson v. Black
Bird Creek Marsh Co. , 2 Pet. 245, 252 (1829). “This ‘negative’
aspect of the Commerce Clause” prevents the States from adopting
protectionist measures and thus preserves a national market for
goods and services. New Energy Co. of Ind. v. Limbach , 486 U.S.
269 , 273 (1988).

															This interpretation, generally known as “the
dormant Commerce Clause,” has a long and complicated history. Its
roots go back as far as Gibbons v. Ogden , 9 Wheat. 1
(1824), where Chief Justice Marshall found that a version of the
dormant Commerce Clause argument had “great force.” Id. , at
209. His successor disagreed, see License Cases , 5 How. 504,
578–579 (1847) (Taney, C. J.), but by the latter half of the
19th century the dormant Commerce Clause was firmly established,
see, e.g. , Case of the State Freight Tax , 15 Wall.
232, 279–280 (1873), and it played an important role in the
economic history of our Nation. See Cushman, Formalism and Realism
in Commerce Clause Jurisprudence, 67 U. Chi. L. Rev. 1089, 1107
(2000).

															In recent years, some Members of the Court have
authored vigorous and thoughtful critiques of this interpretation.
See, e.g ., Camps Newfound/Owatonna, Inc. v. Town
of Harrison , 520 U.S.
564 , 609–620 (1997) (Thomas, J., dissenting); Tyler Pipe
Industries, Inc. v. Washington State Dept. of Revenue , 483 U.S.
232 , 259–265 (1987) (Scalia, J., concurring in part and
dissenting in part); cf. post , at 2–3 (Gorsuch, J.,
dissenting) (deeming doctrine “peculiar”). But the proposition that
the Commerce Clause by its own force restricts state protectionism
is deeply rooted in our case law. And without the dormant Commerce
Clause, we would be left with a constitutional scheme that those
who framed and ratified the Constitution would surely find
surprising.

															That is so because removing state trade barriers
was a principal reason for the adoption of the Constitution. Under
the Articles of Confederation, States notoriously obstructed the
interstate shipment of goods. “Interference with the arteries of
commerce was cutting off the very life-blood of the nation.” M.
Farrand, The Framing of the Constitution of the United States 7
(1913). The Annapolis Convention of 1786 was convened to address
this critical problem, and it culminated in a call for the
Philadelphia Convention that framed the Constitution in the summer
of 1787.[ 3 ] At that Convention,
discussion of the power to regulate interstate commerce was almost
uniformly linked to the removal of state trade barriers, see Abel,
The Commerce Clause in the Constitutional Convention and in
Contemporary Comment, 25 Minn. L. Rev. 432, 470–471 (1941), and
when the Constitution was sent to the state conventions, fostering
free trade among the States was prominently cited as a reason for
ratification. In The Federalist No. 7, Hamilton argued that state
protectionism could lead to conflict among the States, see The
Federalist No. 7, pp. 62–63 (C. Rossiter ed. 1961), and in No. 11,
he touted the benefits of a free national market, id ., at
88–89. In The Federalist No. 42, Madison sounded a similar theme. Id ., at 267–268.

															In light of this background, it would be strange
if the Constitution contained no provision curbing state
protectionism, and at this point in the Court’s history, no
provision other than the Commerce Clause could easily do the job.
The only other provisions that the Framers might have thought would
fill that role, at least in part, are the Import-Export Clause,
Art. I, §10, cl. 2, which generally prohibits a State from
“lay[ing] any Imposts or Duties on Imports or Exports,” and the
Privileges and Immunities Clause, Art. IV, §2, which provides that
“[t]he Citizens of each State shall be entitled to all Privileges
and Immunities of Citizens in the several States.” But the
Import-Export Clause was long ago held to refer only to
international trade. See Woodruff v. Parham , 8 Wall.
123, 136–137 (1869). And the Privileges and Immunities Clause has
been interpreted not to protect corporations, Western &
Southern Life Ins. Co. v. State Bd. of Equalization of
Cal. , 451 U.S.
648 , 656 (1981) (citing Hemphill v. Orloff , 277 U.S.
537 , 548–550 (1928)), and may not guard against certain
discrimination scrutinized under the dormant Commerce Clause, see
Denning, Why the Privileges and Immunities Clause of Article IV
Cannot Replace the Dormant Commerce Clause Doctrine, 88 Minn.
L. Rev. 384, 393–397 (2003). So if we accept the Court’s
established interpretation of those provisions, that leaves the
Commerce Clause as the primary safeguard against state
protectionism.[ 4 ]

															It is not surprising, then, that our cases have
long emphasized the connection between the trade barriers that
prompted the call for a new Constitution and our dormant Commerce
Clause jurisprudence. In Guy v. Baltimore , 100 U.S.
434 , 440 (1880), for example, the Court wrote that state
protectionist measures, “if maintained by this court, would
ultimately bring our commerce to that ‘oppressed and degraded
state,’ existing at the adoption of the present Constitution, when
the helpless, inadequate Confederation was abandoned and the
national government instituted.” More recently, we observed that
our dormant Commerce Clause cases reflect a “ ‘central concern
of the Framers that was an immediate reason for calling the
Constitutional Convention: the conviction that in order to succeed,
the new Union would have to avoid the tendencies toward economic
Balkanization that had plagued relations among the Colonies and
later among the States under the Articles of Confederation.’ ” Granholm , 544 U. S., at 472 (quoting Hughes v. Oklahoma , 441 U.S.
322 , 325–326 (1979)).

															In light of this history and our established
case law, we reiterate that the Commerce Clause by its own force
restricts state protectionism.

															B

															Under our dormant Commerce Clause cases, if a
state law discriminates against out-of-state goods or nonresident
economic actors, the law can be sustained only on a showing that it
is narrowly tailored to “ ‘advanc[e] a legitimate local
purpose.’ ” Department of Revenue of Ky. v. Davis , 553 U.S.
328 , 338 (2008). See also, e.g. , Oregon Waste
Systems, Inc. v. Department of Environmental Quality of
Ore. , 511 U.S.
93 , 100–101 (1994); Maine v. Taylor , 477 U.S.
131 , 138 (1986).

															Tennessee’s 2-year durational-residency
requirement plainly favors Tennesseans over nonresidents, and
neither the Association nor the dissent below defends that
requirement under the standard that would be triggered if the
requirement applied to a person wishing to operate a retail store
that sells a commodity other than alcohol. See 883 F. 3d, at
626. Instead, their arguments are based on §2 of the Twenty-first
Amendment, to which we will now turn.

															III

															A

															Section 2 of the Twenty-first Amendment
provides as follows:

															“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.”

															Although the interpretation of any provision of
the Constitution must begin with a consideration of the literal
meaning of that particular provision, reading §2 to prohibit the
transportation or importation of alcoholic beverages in violation
of any state law[ 5 ]
would lead to absurd results that the provision cannot have been
meant to produce. Under the established rule that a later adopted
provision takes precedence over an earlier, conflicting provision
of equal stature, see, e.g. , United States v. Tynen , 11 Wall. 88, 92 (1871); Posadas v. National
City Bank , 296 U.S.
497 , 503 (1936); A. Scalia & B. Garner, Reading Law 327–328
(2012); 1A N. Singer & J. Singer, Sutherland on Statutory
Construction §23:9 (7th ed. 2009), such a reading of §2 would mean
that the provision would trump any irreconcilable provision of the
original Constitution, the Bill of Rights, the Fourteenth
Amendment, and every other constitutional provision predating
ratification of the Twenty-first Amendment in 1933. This would
mean, among other things, that a state law prohibiting the
importation of alcohol for sale to persons of a particular race,
religion, or sex would be immunized from challenge under the Equal
Protection Clause. Similarly, if a state law prohibited the
importation of alcohol for sale by proprietors who had expressed an
unpopular point of view on an important public issue, the First
Amendment would provide no protection. If a State imposed a duty on
the importation of foreign wine or spirits, the Import-Export
Clause would have to give way. If a state law retroactively made it
a crime to have bought or sold imported alcohol under specified
conditions, the Ex Post Facto Clause would provide no
barrier to conviction. The list goes on.

															Despite the ostensibly broad text of §2, no one
now contends that the provision must be interpreted in this way.
Instead, we have held that §2 must be viewed as one part of a
unified constitutional scheme. See California Retail Liquor
Dealers Assn. v. Midcal Aluminum, Inc. , 445 U.S.
97 , 109 (1980); Hostetter v. Idlewild Bon Voyage
Liquor Corp. , 377 U.S.
324 , 331–332 (1964); cf. Scalia & Garner, supra , at
167–169, 180–182. In attempting to understand how §2 and other
constitutional provisions work together, we have looked to history
for guidance, and history has taught us that the thrust of §2 is to
“constitutionaliz[e]” the basic structure of federal-state alcohol
regulatory authority that prevailed prior to the adoption of the
Eighteenth Amendment. Craig v. Boren , 429
U.S. 190 , 206 (1976). We therefore examine that history.

															B

															Throughout the 19th century, social problems
attributed to alcohol use prompted waves of state regulation, and
these measures were often challenged as violations of various
provisions of the Federal Constitution.

															One wave of state regulation occurred during the
first half of the century. The country’s early years were a time of
notoriously hard drinking, see D. Okrent, Last Call: The Rise and
Fall of Prohibition 7 (2010),[ 6 ] and the problems that this engendered prompted States
to enact a variety of regulations, including licensing
requirements, age restrictions, and Sunday-closing laws. See Byse,
Alcoholic Beverage Control Before Repeal, 7 Law & Contemp.
Prob. 544, 546–551 (1940).

															Three States’ alcohol licensing laws came before
this Court in 1847 in the License Cases , 5 How. 504. The
principal claim in those cases was similar to the one now before
us; licensing laws enacted in three States were challenged under
the Commerce Clause. The Court unanimously rejected those claims,
but six Justices authored opinions; no opinion commanded a
majority; and the general status of dormant Commerce Clause claims
was left uncertain. See 5 C. Swisher, The Taney Period, 1836–64,
History of the Supreme Court of the United States 373–374
(1974).

															Following the Civil War, the Court considered a
steady stream of alcohol-regulation cases. The postwar period saw a
great proliferation of saloons,[ 7 ] and myriad social problems were attributed to this
development. In response, many States passed laws restricting the
sale of alcohol. By 1891, six States had banned alcohol production
and sale completely. R. Hamm, Shaping the Eighteenth Amendment 25
(1995) (Hamm).

															During this period, state laws regulating the
alcohol trade were unsuccessfully challenged in this Court on a
variety of constitutional grounds. See, e.g. , Mugler v. Kansas , 123 U.S.
623 (1887) (Privileges or Immunities and Due Process Clauses of
Fourteenth Amendment); Beer Co. v. Massachusetts , 97 U.S. 25 (1878) (Contracts Clause); Bartemeyer v. Iowa , 18
Wall. 129 (1874) (Privileges or Immunities and Due Process Clauses
of Fourteenth Amendment). In those decisions, the Court staunchly
affirmed the “right of the States,” in exercising their “police
power,” to “protect the health, morals, and safety of their
people,” but the Court also cautioned that this objective could be
pursued only “by regulations that do not interfere with the
execution of the powers of the general government, or violate
rights secured by the Constitution of the United States.” Mugler , 123 U. S., at 659. For that reason, the Court
continued, “mere pretences” could not sustain a law regulating
alcohol; rather, if “a statute purporting to have been enacted to
protect the public health, the public morals, or the public safety,
has no real or substantial relation to those objects, or is a
palpable invasion of rights secured by the fundamental law, it is
the duty of the courts to so adjudge, and thereby give effect to
the Constitution.” Id. , at 661.

															Dormant Commerce Clause challenges also reached
the Court. States that banned the production and sale of alcohol
within their borders found that these laws did not stop residents
from consuming alcohol shipped in from other States. To curb that
traffic, States passed laws regulating or prohibiting the
importation of alcohol, and these enactments were quickly
challenged.

															By the late 19th century, the Court was firmly
of the view that the Commerce Clause by its own force restricts
state regulation of interstate commerce. See Bowman v. Chicago & Northwestern R. Co. , 125
U.S. 465 (1888); Leisy v. Hardin , 135 U.S.
100 (1890). Dormant Commerce Clause cases from that era
“advanced two distinct principles,” an understanding of which is
critical to gauging the States’ pre-Prohibition power to regulate
alcohol. Granholm , 544 U. S., at 476.

															First, the Court held that the Commerce Clause
prevented States from discriminating “against the citizens and
products of other States,” Walling v. Michigan , 116
U.S. 446 , 460 (1886). See also Scott v. Donald , 165 U.S.
58 (1897); Tiernan v. Rinker , 102 U.S.
123 (1880). Applying that rule, the Walling Court struck
down a discriminatory state fee that applied only to those in the
business of selling imported alcohol. 116 U. S., at 454, 458.
Similarly, in Scott , the Court invalidated a law that gave
an “unjust preference [to] the products of the enacting State as
against similar products of the other States.” 165 U. S., at
101. The Court did not question the States’ use of the police power
to regulate the alcohol trade but stressed that such regulation
must have a “ bona fide ” relation to protecting “ ‘the
public health, the public morals or the public safety,’ ” id., at 91 (quoting Mugler , supra, at 661),
and could not encroach upon Congress’s “power to regulate commerce
among the several States,” Walling , supra, at
458.

															Second, the Court “held that the Commerce Clause
prevented States from passing facially neutral laws that placed an
impermissible burden on interstate commerce.” Granholm , 544
U. S., at 477. At the time of these decisions, the
“original-package doctrine” defined the outer limits of Congress’s
authority to regulate interstate commerce. Ibid. See Brown v. Maryland , 12 Wheat. 419 (1827). Under that
doctrine, “goods shipped in interstate commerce were immune from
state regulation while in their original package,” because at that
point they had not yet been comingled with the mass of domestic
property subject to state jurisdiction. Granholm , 544
U. S., at 477; see id., at 477–478 (citing Vance v. W. A. Vandercook Co. , 170 U.S.
438 , 444–445 (1898)). Applying this doctrine to state alcohol
laws, the Court struck down an Iowa statute that required importers
to obtain special certificates, Bowman , supra , as
well as another Iowa law that, with limited exceptions, banned the
importation of liquor, Leisy , supra .

															These decisions left dry States “in a bind.” Granholm , supra , at 478. See Rogers, Interstate
Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, 4 Va.
L. Rev. 174 (1916), 288 (1917) (noting “practical nullification of
state laws” by original-package decisions). States could ban the
production and sale of alcohol within their borders, but those bans
“were ineffective because out-of-state liquor was immune from any
state regulation as long as it remained in its original package.” Granholm, supra , at 478 . In effect, the Court’s
interpretation of the dormant Commerce Clause conferred favored
status on out-of-state alcohol, and that hamstrung the dry States’
efforts to enforce local prohibition laws. Representatives of those
States and temperance advocates thus turned to Congress, which
passed two laws to solve the problem.

															The first of these was the Wilson Act, enacted
in 1890. Ch. 728, 26Stat. 313, 27 U. S. C. §121. Named
for Senator James F. Wilson of Iowa, whose home State’s laws had
fallen in Bowman and Leisy , the Wilson Act aimed to
obviate the problem presented by the “original-package” rule.
Dormant Commerce Clause restrictions apply only when Congress has
not exercised its Commerce Clause power to regulate the matter at
issue, cf. Bowman , supra, at 485; Leisy , supra, at 123–124, and the strategy of those who favored the
Wilson Act was for Congress to eliminate the problem that had
surfaced in Bowman and Leisy by regulating the
interstate shipment of alcohol, see Hamm 77–80; Rogers, supra , at 194–195. During the late 19th century and early
20th century, Congress enacted laws that entirely prohibited the
transportation of certain goods and persons across state lines, and
some but not all of these measures were held to be valid exercises
of the commerce power. See Lottery Case , 188 U.S.
321 (1903) (upholding law prohibiting interstate shipment of
lottery tickets); Hoke v. United States , 227 U.S.
308 (1913) (sustaining Mann Act prohibition on bringing women
across state lines for prostitution); Hammer v. Dagenhart , 247 U.S.
251 (1918) (striking down provision banning interstate shipment
of goods produced by child labor).

															Unlike these laws, the Wilson Act did not
attempt to ban all interstate shipment of alcohol. Its goal was
more modest: to leave it up to each State to decide whether to
admit alcohol. Its critical provision specified that all alcoholic
beverages “transported into any State or Terri- tory” were subject
“upon arrival” to the same restrictions imposed by the State “in
the exercise of its police powers” over alcohol produced in the
State.[ 8 ] Thus, the Wilson Act
mandated equal treatment for alcohol produced within and outside a
State, not favorable treatment for local products. See Granholm,
supra , at 479 (discussing Scott , 165 U. S., at
100–101). And the only state laws that it attempted to shield were
those enacted by a State “in the exercise of its police powers,”
which, as we have seen, applied only to bona fide health and safety
measures. See, e.g. , id. , at 91 (citing Mugler , 123 U. S., at 661).

															Despite Congress’s clear aim, the Wilson Act
failed to relieve the dry States’ predicament. In Rhodes v. Iowa , 170 U.S.
412 (1898), and Vance v. W. A. Vandercook Co. , supra , the Court read the Act’s reference to the “arrival”
of alcohol in a State to mean delivery to the consignee, not
arrival within the State’s borders. Granholm , 544
U. S., at 480. The upshot was that residents of dry States
could continue to order and receive imported alcohol. Ibid. See also Hamm 178. In 1913, Congress tried to patch this hole by
passing the Webb-Kenyon Act, ch. 90, 37Stat. 699, 27
U. S. C. §122.

															The aim of the Webb-Kenyon Act was to give each
State a measure of regulatory authority over the importation of
alcohol, but this created a drafting problem. There were those who
thought that a federal law giving the States this authority would
amount to an unconstitutional delegation of Congress’s legislative
power over interstate commerce.[ 9 ] So the Act was framed not as a measure conferring power
on the States but as one prohibiting conduct that violated state
law. The Act provided that the shipment of alcohol into a State for
use in any manner, “either in the original package or otherwise,”
“in violation of any law of such State,” was prohibited.[ 10 ] This formulation is significant
for present purposes because it would provide a model for §2 of the
Twenty-first Amendment.

															The Webb-Kenyon Act attempted to fix the hole in
the Wilson Act and thus to “eliminate the regulatory advantage
. . . afforded imported liquor,” Granholm , supra , at 482; see also Clark Distilling Co. v. Western Maryland R. Co. , 242 U.S.
311 , 324 (1917), but its wording, unlike the Wilson Act’s, did
not explicitly mandate equal treatment for imported and
domestically produced alcohol. And it referred to “ any law
of such State,” 37Stat. 700 (emphasis added), whereas the Wilson
Act referred to “the laws of such State or Territory enacted in
the exercise of its police powers .” 26Stat. 313 (emphasis
added). But despite these differences, Granholm held, over a
strenuous dissent, 544 U. S., at 505–514 (opinion of Thomas,
J.), that the Webb-Kenyon Act did not purport to authorize States
to enact protectionist measures.

															There is good reason for this holding. As we
have noted, the Court’s pre-Webb-Kenyon Act decisions upholding
state liquor laws against challenges based on constitutional
provisions other than the Commerce Clause had cau- tioned that
protectionist laws disguised as exercises of the police power would
not escape scrutiny. See supra, at 14–15.[ 11 ] The Webb-Kenyon Act, by regulating
commerce, could obviate dormant Commerce Clause problems, but it
could not override the limitations imposed by these other
constitutional provisions and the traditional understanding
regarding the bounds of the States’ inherent police powers.
Therefore the Wilson Act’s reference to laws “enacted in the
exercise of [a State’s] police powers,” 26Stat. 313, merely
restated what this Court had already found to be a constitutional
necessity, and consequently, there was no need to include such
language in the Webb-Kenyon Act. Even without limiting language
like that in the Wilson Act, the shelter given by the Webb-Kenyon
Act applied only where “the States treated in-state and
out-of-state liquor on the same terms.” Granholm , supra , at 481.[ 12 ]

															Following passage of the Webb-Kenyon Act,
temperance advocates began the final push for nationwide
Prohibition, and with the ratification of the Eighteenth Amendment
in 1919, their goal was achieved. The manufacture, sale,
transportation, and importation of alcoholic beverages anywhere in
the country were prohibited.

															IV

															A

															By 1933, support for Prohibition had
substantially diminished but not vanished completely. Thirty-eight
state conventions eventually ratified the Twenty-first Amendment,
but 10 States either rejected or took no action on the Amendment.
Section 1 of the Twenty-first Amendment repealed the Eighteenth
Amendment and thus ended nationwide Prohibition, but §2, the
provision at issue here, gave each State the option of banning
alcohol if its citizens so chose.

															As we have previously noted, the text of §2
“closely follow[ed]” the operative language of the Webb-Kenyon Act,
and this naturally suggests that §2 was meant to have a similar
meaning. Craig , 429 U. S., at 205–206. The decision to
follow that unusual formulation is especially revealing since the
drafters of §2, unlike those who framed the Webb-Kenyon Act, had no
need to worry that a more straightforward wording might trigger a
constitutional challenge. Accordingly, we have inferred that §2 was
meant to “constitutionaliz[e]” the basic understanding of the
extent of the States’ power to regulate alcohol that prevailed
before Prohibition. Id., at 206. See also Granholm , supra, at 484. And as recognized during that period, the
Commerce Clause did not permit the States to impose protectionist
measures clothed as police-power regulations. See supra , at
14–15. See also, e.g. , Railroad Co. v. Husen , 95 U.S.
465 , 472 (1878) (a State “may not, under the cover of exerting
its police powers, substantially prohibit or burden either foreign
or inter-state commerce”).

															This understanding is supported by the debates
on the Amendment in Congress[ 13 ] and the state ratifying conventions. The records of
the state conventions provide no evidence that §2 was understood to
give States the power to enact protectionist laws,[ 14 ] “a privilege [the States] had not
enjoyed at any earlier time.” Granholm , supra , at
485.

															B

															Although our later cases have recognized that
§2 cannot be given an interpretation that overrides all previously
adopted constitutional provisions, the Court’s earliest cases
interpreting §2 seemed to feint in that direction. In 1936, the
Court found that §2’s text was “clear” and saw no need to consider
whether history supported a more modest interpretation, State
Bd. of Equalization of Cal. v. Young’s Market Co. , 299 U.S.
59 , 63–64 (1936)—an approach even the dissent rejects, see infra , at 24, n. 16; post , at 2.[ 15 ] The Court read §2 as granting each
State plenary “power to forbid all importations which do not comply
with the conditions which it prescribes,” Young’s Market , supra , at 62; see also Ziffrin, Inc. v. Reeves , 308 U.S.
132 , 138–139 (1939), including laws that discriminated against
out-of-state products. See, e.g., Young’s Market, supra , at
62; Mahoney v. Joseph Triner Corp. , 304 U.S.
401 , 403 (1938); Indianapolis Brewing Co. v. Liquor
Control Comm’n , 305 U.S.
391 , 394 (1939). The Court went so far as to assume that the
Fourteenth Amendment imposed no barrier to state legislation in the
field of alcohol regulation. See Young’s Market , supra, at 64 (“A classification recognized by the
Twenty-first Amendment cannot be deemed forbidden by the
Fourteenth”).

															With subsequent cases, however, the Court saw
that §2 cannot be read that way, and it therefore scrutinized state
alcohol laws for compliance with many constitutional provisions.
See, e.g. , 44 Liquormart, Inc. v. Rhode
Island , 517 U.S.
484 (1996) (Free Speech Clause); Larkin v. Grendel’s
Den, Inc. , 459 U.S.
116 (1982) (Establishment Clause); Craig v. Boren , supra (Equal Protection Clause); Wisconsin v. Constantineau , 400
U.S. 433 (1971) (Due Process Clause); Department of
Revenue v. James B. Beam Distilling Co. , 377 U.S.
341 (1964) (Import-Export Clause).

															The Court also held that §2 does not entirely
supersede Congress’s power to regulate commerce. Instead, after
evaluating competing federal and state interests, the Court has
ruled against state alcohol laws that conflicted with federal
regulation of the export of alcohol, Hostetter , 377
U. S., at 333–334, federal antitrust law, Midcal
Aluminum, 445 U. S., at 110–111, 113–114; 324 Liquor
Corp. v. Duffy , 479 U.S.
335 , 346–347, 350–351 (1987), and federal regulation of the
airwaves, Capital Cities Cable, Inc. v. Crisp, 467 U.S.
691 , 713, 716 (1984).

															As for the dormant Commerce Clause, the
developments leading to the adoption of the Twenty-first Amendment
have convinced us that the aim of §2 was not to give States a free
hand to restrict the importation of alcohol for purely
protectionist purposes. See Granholm , supra, at
486–487; Bacchus , 468 U. S., at 276.

															C

															Although some Justices have argued that §2
shields all state alcohol regulation—including discriminatory
laws—from any application of dormant Commerce Clause
doctrine,[ 16 ] the Court’s
modern §2 precedents have repeatedly rejected that view. We have
examined whether state alcohol laws that burden interstate commerce
serve a State’s legitimate §2 interests. And protectionism, we have
stressed, is not such an interest. Ibid. Applying that principle, we have invalidated
state alcohol laws aimed at giving a competitive advantage to
in-state businesses. The Court’s decision in Bacchus “provides a particularly telling example.” Granholm , supra , at 487. There, the Court was confronted with a tax
exemption that favored certain in-state alcohol producers. In
defending the law, the State argued that even if the discriminatory
exemption violated “ordinary Commerce Clause principles, it [was]
saved by the Twenty-first Amendment.” Bacchus , 468
U. S., at 274. We rejected that argument and held instead that
the relevant question was “whether the principles underlying the
Twenty-first Amendment are sufficiently implicated by the
[discriminatory] exemption . . . to outweigh the Commerce
Clause principles that would otherwise be offended.” Id., at
275. Ultimately, we held that §2 did not save the disputed tax
because it clearly aimed “ ‘to promote a local
industry’ ” rather than “to promote temperance or to carry out
any other purpose of the Twenty-first Amendment.” Id., at
276.

															The same went for the state law in Healy v. Beer Institute , 491 U.S.
324 (1989), which required out-of-state shippers of beer to
affirm that their wholesale price for products sold in Connecticut
was no higher than the prices they charged to wholesalers in
bordering States. Connecticut argued that the “Twenty-first
Amendment sanction[ed]” this law “regardless of its effect on
interstate commerce,” id. , at 341, but we held that the law
violated the Commerce Clause, noting that it “discriminate[d]
against brewers and shippers of beer engaged in interstate
commerce” without justification “by a valid factor unrelated to
economic protectionism,” id. , at 340–341.[ 17 ]

															Most recently, in Granholm , we struck
down a set of discriminatory direct-shipment laws that favored
in-state wineries over out-of-state competitors. After surveying
the history of §2, we affirmed that “the Twenty-first Amendment
does not immunize all laws from Commerce Clause challenge.” 544
U. S., at 488. We therefore examined whether the challenged
laws were reasonably necessary to protect the States’ asserted
interests in policing underage drinking and facilitating tax
collection. Id. , at 489–493. Concluding that the answer to
that question was no, we invalidated the laws as inconsistent with
the dormant Commerce Clause’s nondiscrimination principle. Id., at 492–493.

															To summarize, the Court has acknowledged that §2
grants States latitude with respect to the regulation of alcohol,
but the Court has repeatedly declined to read §2 as allowing the
States to violate the “nondiscrimination principle” that was a
central feature of the regulatory regime that the provision was
meant to constitutionalize. Id. , at 487.

															D

															The Association resists this reading. Although
it concedes (as it must under Granholm ) that §2 does not
give the States the power to discriminate against out-of-state
alcohol products and producers , the Association presses the
argument, echoed by the dissent, that a different rule applies to
state laws that regulate in-state alcohol distribution. There is no
sound basis for this distinction.[ 18 ]

															1

															The Association’s argument encounters a
problem at the outset. The argument concedes that §2 does not
shield state laws that discriminate against interstate commerce
with respect to the very activity that the provision explicitly
addresses—the importation of alcohol. But at the same time, the
Association claims that §2 protects something that §2’s text, if
read literally, does not cover—laws restricting the licensing of
domestic retail alcohol stores. That reading is implausible. Surely
if §2 granted States the power to discriminate in the field of
alcohol regulation, that power would be at its apex when it comes
to regulating the activity to which the provision expressly
refers.

															The Association and the dissent point out that Granholm repeatedly spoke of discrimination against
out-of-state products and producers, but there is an obvious
explanation: The state laws at issue in Granholm discriminated against out-of-state producers. See 883 F. 3d,
at 621. And Granholm never said that its reading of history
or its Commerce Clause analysis was limited to discrimination
against products or producers. On the contrary, the Court stated
that the Clause prohibits state discrimination against all
“ ‘out-of-state economic interests ,’ ” Granholm , 544 U. S., at 472 (emphasis added), and noted
that the direct-shipment laws in question “contradict[ed]” dormant
Commerce Clause principles because they “deprive[d] citizens of their right to have access to the markets of other States on
equal terms.” Id., at 473 (emphasis added). Granholm also described its analysis as consistent with the rule set forth
in Bacchus , Brown-Forman Distillers Corp. v. New
York State Liquor Authority , 476 U.S.
573 (1986), and Healy that “ ‘[w]hen a state
statute directly regulates or discriminates against interstate
commerce, or when its effect is to favor in-state economic interests over out-of-state interests , we have
generally struck down the statute without further inquiry.’ ” Granholm , supra , at 487 (quoting Brown-Forman , supra , at 579; emphasis added).

															The Association counters that even if the Granholm Court did not explicitly limit its holding to
products and producers, the Court implicitly did so when it
rejected the argument that its analysis would call into question
the constitutionality of state laws setting up three-tiered alcohol
distribution systems. See Granholm , supra, at
488–489. This argument, which the dissent also advances, see post , at 12–13, reads far too much into Granholm ’s
discussion of the three-tiered model. Although Granholm spoke approvingly of that basic model, it did not suggest that §2
sanctions every discriminatory feature that a State may incorporate
into its three-tiered scheme. At issue in the present case is not
the basic three-tiered model of separating producers, wholesalers,
and retailers, but the durational-residency requirement that
Tennessee has chosen to impose on new applicants for liquor store
licenses. Such a requirement is not an essential feature of a
three-tiered scheme. Many such schemes do not impose
durational-residency requirements—or indeed any residency
requirements—on individual or corporate liquor store owners. See, e.g., Brief for State of Illinois et al. as Amici
Curiae 24–25, 27 (identifying States that have either
“dispos[ed] with the durational aspect of the [residency]
requirement” or “d[o] not regulate the residency of the applicant
corporation or partnership”). Other three-tiered schemes differ in
other ways. See, e.g., id., at 24–28 (noting variations);
FTC, Possible Anticompetitive Barriers to E-Commerce: Wine 7–9
(July 2003), https://
www .ftc . gov / sites /default/files/documents/reports/possible-anticompetitive-barriers-e-commerce-wine/winereport2_0.
pdf (as last visited June 24, 2019) (same). Because we agree with
the dissent that, under §2, States “remai[n] free to pursue” their
legitimate interests in regulating the health and safety risks
posed by the alcohol trade, post , at 12, each variation must
be judged based on its own features.

															2

															In support of the argument that the Tennessee
scheme is constitutional, the Association and its amici claim that discriminatory distribution laws, including in-state
presence and residency requirements, long predate Prohibition and
were adopted by many States following ratification of the
Twenty-first Amendment.[ 19 ]
Indeed, the Association notes that the 2-year durational-residency
requirement now before us dates back to 1939 and is consistent with
durational-residency regimes adopted by several other States around
the same time.[ 20 ] According
to the Association, that history confirms that §2 was intended to
broadly exempt all in-state distribution laws from dormant Commerce
Clause scrutiny. The dissent relies heavily on this same
argument.

															This argument fails for several reasons. Insofar
as it relies on state laws enacted shortly after the ratification
of the Twenty-first Amendment and this Court’s early decisions
interpreting it, the Association and the dissent’s argument does
not take into account the overly expansive interpretation of §2
that took hold for a time in the immediate aftermath of its
adoption. See supra, at 22–23. Thus, some state laws adopted
soon after the ratification of the Twenty-first Amendment may have
been based on an understanding of §2 that can no longer be
defended. It is telling that an argument similar to the one now
made by the Association would have dictated a contrary result in Granholm , since state laws disfavoring imported products
were passed during this same period. See, e.g. , Young’s
Market Co. , 299 U. S., at 62 (discriminatory license fee
on imported beer); Mahoney , 304 U. S., at 403
(prohibition on import of certain liquors); Indianapolis Brewing
Co. , 305 U. S., at 394 (same). But our later cases have
rejected this interpretation of §2. See Granholm , supra , at 487.

															Insofar as the Association’s argument is based
on state laws adopted prior to Prohibition, it infers too much from
the existence of laws that were never tested in this Court. Had
they been tested here, there is no reason to conclude that they
would have been sustained. During that time, the Court repeatedly
invalidated, on dormant Commerce Clause grounds, a variety of state
and local efforts to license those engaged in interstate
business,[ 21 ] and as noted,
pre-Prohibition decisions of this Court and the lower courts held
that state alcohol laws that discriminated against interstate
commerce were unconstitutional, see supra , at 15.

															Contrary to the Association’s contention, not
all of these decisions involved discrimination against alcohol
produced out of State or alcohol importers. The tax in Walling , for example, applied to those engaged in the
business of selling imported alcohol within the State. 116 U.S.
446 . And in concluding that the law violated the Commerce
Clause, the Court affirmed that, without the dormant Commerce
Clause, there would “be no security against conflicting regulations
of different states, each discriminating in favor of its own
products and citizens , and against the products and citizens of other states.” Id., at 456–457 (emphasis
added). So too, the dispensary law in Scott was challenged
on the ground that it discriminated “against products of other
States and against citizens of other States.” 165
U. S., at 62 (emphasis added); see also id., at 94.

															Nor have States historically enjoyed absolute
authority to police alcohol within their borders. As discussed
earlier, far from granting the States plenary authority to adopt
domestic regulations, the Court’s police-power precedents required
an examination of the actual purpose and effect of a challenged
law. See, e.g. , Mugler , 123 U. S., at 661 (“It
does not at all follow that every statute enacted ostensibly for
the promotion” of “the public health, the public morals, or the
public safety” is “to be accepted as a legitimate exertion of the
police powers of the State”); see also Husen , 95 U. S.,
at 472; Welton v. Missouri , 91 U.S.
275 , 278 (1876). Cf. H. Black, Intoxicating Liquors §30, p. 40
(1892) (stating that certain 19th-century licensing and residency
requirements were valid because their “purpose and effect” was to
prevent “the unlawful selling of liquors, and not to
discriminate against citizens of other states ” (emphasis
added)).

															For these reasons, we reject the Association’s
overly broad understanding of §2. That provision allows each State
leeway to enact the measures that its citizens believe are
appropriate to address the public health and safety effects of
alcohol use and to serve other legitimate interests, but it does
not license the States to adopt protectionist measures with no
demonstrable connection to those interests.

															V

															Having concluded that §2 does not confer
limitless authority to regulate the alcohol trade, we now apply the
§2 analysis dictated by the provision’s history and our
precedents.

															If we viewed Tennessee’s durational-residency
requirements as a package, it would be hard to avoid the conclusion
that their overall purpose and effect is protectionist. Indeed, two
of those requirements—the 10-year residency requirement for license
renewal and the provision that shuts out all publicly traded
corporations—are so plainly based on unalloyed protectionism that
neither the Association nor the State is willing to come to their
defense. The provision that the Association and the State seek to
preserve—the 2-year residency requirement for initial license
applicants—forms part of that scheme. But we assume that it can be
severed from its companion provisions, see 883 F. 3d, at
626–628, and we therefore analyze that provision on its own.

															Since the 2-year residency requirement
discriminates on its face against nonresidents, it could not be
sustained if it applied across the board to all those seeking to
operate any retail business in the State. Cf. C & A Carbone,
Inc. v. Clarkstown , 511 U.S.
383 , 391–392 (1994); Lewis v. BT Investment Managers,
Inc. , 447 U.S.
27 , 39 (1980). But because of §2, we engage in a different
inquiry. Recognizing that §2 was adopted to give each State the
authority to address alcohol-related public health and safety
issues in accordance with the preferences of its citizens, we ask
whether the challenged requirement can be justified as a public
health or safety measure or on some other legitimate
nonprotectionist ground. Section 2 gives the States regulatory
authority that they would not otherwise enjoy, but as we pointed
out in Granholm , “mere speculation” or “unsupported
assertions” are insufficient to sustain a law that would otherwise
violate the Commerce Clause. 544 U. S., at 490, 492. Where the
predominant effect of a law is protectionism, not the protection of
public health or safety, it is not shielded by §2.

															The provision at issue here expressly
discriminates against nonresidents and has at best a highly
attenuated relationship to public health or safety. During the
course of this litigation, the Association relied almost entirely
on the argument that Tennessee’s residency requirements are simply
“not subject to Commerce Clause challenge,” 259 F. Supp. 3d, at
796, and the State itself mounted no independent defense. As a
result, the record is devoid of any “concrete evidence” showing
that the 2-year residency requirement actually promotes public
health or safety; nor is there evidence that nondiscriminatory
alternatives would be insufficient to further those interests. Granholm , supra , at 490; see 883 F. 3d, at
625–626.

															In this Court, the Association has attempted to
defend the 2-year residency requirement on public health and safety
grounds, but this argument is implausible on its face. The
Association claims that the requirement ensures that retailers are
“amenable to the direct process of state courts,” Brief for
Petitioner 48 (internal quotation marks omitted), but the
Association does not explain why this objective could not easily be
achieved by ready alternatives, such as requiring a nonresident to
designate an agent to receive process or to consent to suit in the
Tennessee courts. See Cooper v. McBeath , 11 F.3d 547 , 554 (CA5 1994).

															Similarly unpersuasive is the Association’s
claim that the 2-year requirement gives the State a better opportu-
nity to determine an applicant’s fitness to sell alcohol and guards
against “undesirable nonresidents” moving into the State for the
purpose of operating a liquor store. Brief for Petitioner 10
(internal quotation marks omitted). The State can thoroughly
investigate applicants without requiring them to reside in the
State for two years before obtaining a license. Tennessee law
already calls for criminal background checks on all applicants, see
Tenn. Code Ann. §57–3–208, and more searching checks could be
demanded if necessary. As the Fifth Circuit observed in a similar
case, “[i]f [the State] desires to scrutinize its applicants
thoroughly, as is its right, it can devise nondiscriminatory means
short of saddling applicants with the ‘burden’ of residing” in the
State. Cooper , 11 F. 3d, at 554.

															The 2-year residency requirement, in any event,
poorly serves the goal of enabling the State to ensure that only
law-abiding and responsible applicants receive licenses. As the
Tennessee attorney general explained, if a nonresident moves to the
State with the intention of applying for a license once the 2-year
period ends, the TABC will not necessarily have any inkling of the
future applicant’s intentions until that individual applies for a
license, and consequently, the TABC will have no reason to begin an
investigation until the 2-year period has ended. App. to Brief in
Opposition 17a. And all that the 2-year requirement demands is
residency. A prospective applicant is not obligated during that
time “to be educated about liquor sales, submit to inspections, or
report to the State.” Ibid .

															The 2-year residency requirement is not needed
to en- able the State to maintain oversight over liquor store
operators. In Granholm , it was argued that the prohibition
on the shipment of wine from out-of-state sources was justified
because the State could not adequately monitor the activities of
nonresident entities. Citing “improvements in technology,” we found
that argument insufficient. 544 U. S., at 492. See also Cooper , supra , at 554 (“In this age of split-second
communications by means of computer networks . . . there
is no shortage of less burdensome, yet still suitable, options”).
In this case, the argument is even less persuasive since the stores
at issue are physically located within the State. For that reason,
the State can monitor the stores’ operations through on-site
inspections, audits, and the like. See §57–3–104. Should the State
conclude that a retailer has “fail[ed] to comply with state law,”
it may revoke its operating license. Granholm , 544
U. S., at 490. This “provides strong incentives not to sell
alcohol” in a way that threatens public health or safety. Ibid. In addition to citing the State’s interest in
regulatory control, the Association argues that the 2-year
residency requirement would promote responsible alcohol
consumption. According to the Association, the requirement makes it
more likely that retailers will be familiar with the communities
served by their stores, and this, it is suggested, will lead to
responsible sales practices. Brief for Petitioner 48–49. The idea,
it seems, is that a responsible neighborhood proprietor will
counsel or cut off sales to patrons who are known to be abusing
alcohol, who manifest the effects of alcohol abuse, or who perhaps
appear to be purchas- ing too much alcohol. No evidence has been
offered that durational-residency requirements actually foster such
sales practices, and in any event, the requirement now before us is
very poorly designed to do so.

															For one thing, it applies to those who hold a
license, not to those who actually make sales. For another, it
requires residence in the State, not in the community that a store
serves. The Association cannot explain why a proprietor who lives
in Bristol, Virginia, will be less knowledgeable about the needs of
his neighbors right across the border in Bristol, Tennessee, than
someone who lives 500 miles away in Memphis. And the rationale is
further undermined by other features of Tennessee law, particularly
the lack of durational-residency requirements for owners of bars
and other establishments that sell alcohol for on-premises
consumption. §57–4–201.

															Not only is the 2-year residency requirement ill
suited to promote responsible sales and consumption practices (an
interest that we recognize as legitimate, contrary to the dissent’s
suggestion, post , at 9, 12, 14), but there are obvious
alternatives that better serve that goal without discriminating
against nonresidents. State law empowers the relevant authorities
to limit both the number of retail licenses and the amount of
alcohol that may be sold to an individual. Cf. §57–3–208(c)
(permitting local governments to “limit . . . the number
of licenses issued within their jurisdictions”); §57–3–204(d)(7)(C)
(imposing volume limits on certain sales of alcohol to patrons);
Rules of TABC, ch. 0100–01, §0100–01–.03(15) (2018) (same). The
State could also mandate more extensive training for managers and
employees and could even demand that they demonstrate an adequate
connection with and knowledge of the local community. Cf., e.g., Tenn. Code Ann. §57–3–221 (requiring managers of
liquor stores to obtain permits, satisfy background checks, and
undergo “alcohol awareness” training). And the State of course
remains free to monitor the practices of retailers and to take
action against those who violate the law.

															Given all this, the Association has fallen far
short of showing that the 2-year durational-residency requirement
for license applicants is valid. Like the other discriminatory
residency requirements that the Association is unwilling to defend,
the predominant effect of the 2-year residency requirement is
simply to protect the Association’s members from out-of-state
competition. We therefore hold that this provision violates the
Commerce Clause and is not saved by the Twenty-first
Amendment.[ 22 ]

															*  *  *

															The judgment of the Court of Appeals for the
Sixth Circuit is affirmed.

															It is so ordered. Notes 1 For purposes of the
provisions at issue here, Tennessee law defines “alcoholic
beverage[s]” to include “spirits, liquor, wine, high alcohol
content beer,” and “any liquid product containing distilled alcohol
capable of being consumed by a human being, manufactured or made
with distilled alcohol, regardless of alcohol content,” Tenn. Code
Ann. §57–3–101(a)(1)(A) (2018). This definition excludes “beer,”
which is defined and regulated by separate statutory provisions,
see §57–5–101(b). 2 See Letter from H.
Slatery III, Tenn. Atty. Gen., to S. Harris, Clerk of Court (Nov.
13, 2018). 3 See, e.g. , R.
Beeman, Plain, Honest Men: The Making of the American Constitution
18–20 (2009); D. Stewart, The Summer of 1787: The Men Who Invented
the Constitution 9–10 (2007); M. Farrand, The Framing of the
Constitution of the United States 7–10 (1913). 4 Before Woodruff ,
there was authority suggesting that the Import-Export Clause
applied to trade between States. See Brown v. Maryland , 12 Wheat. 419, 449 (1827) (Marshall, C. J.); Almy v. California , 24 How. 169 (1861). And more
recently Woodruff has been questioned. See Camps
Newfound/Owatonna, Inc. v. Town of Harrison , 520 U.S.
564 , 624–636 (1997) (Thomas, J., dissenting). But one way or
the other, it would grossly distort the Constitution to hold that
it provides no protection against a broad swath of state
protectionist measures. Even at the time of the adoption of the
Constitution, it would have been asking a lot to require that
Congress pass a law striking down every protectionist measure that
a State or unit of local government chose to enact. Cf. Friedman
& Deacon, A Course Unbroken: The Constitutional Legitimacy of
the Dormant Commerce Clause, 97 Va. L. Rev. 1877, 1898–1903
(2011); 3 The Records of the Federal Convention of 1787,
p. 549 (M. Farrand ed. 1911) (the Virginia Plan’s proposal of
a congressional negative was “justly abandoned, as, apart from
other objections, it was not practicable among so many States,
increasing in number, and enacting, each of them, so many
laws”). 5 As we will explain, §2
followed the wording of the 1913 Webb-Kenyon Act, ch. 90, 37Stat.
699, see Craig v. Boren , 429
U.S. 190 , 205–206 (1976), and, given this Court’s case law at
the time, it went without saying that the only state laws that
Congress could protect from constitutional challenge were those
that represented the valid exercise of the police power, which was
not understood to authorize purely protectionist measures with no
bona fide relation to public health or safety. See infra , at
14–15, 18–19. 6 Between 1780 and 1830,
Americans consumed “more alcohol, on an individual basis, than at
any other time in the history of the nation,” with per capita
consumption double that of the modern era. R. Mendelson, From Demon
to Darling: A Legal History of Wine in America 11
(2009). 7 By 1872, about 100,000
had sprung up across the country, and by the end of the century,
that number had climbed to almost 300,000. Id. , at 31. This
increase has been linked to the introduction of the English
“tied-house” system. Under the tied-house system, an alcohol
producer, usually a brewer, would set up saloonkeepers, providing
them with premises and equipment, and the saloonkeepers, in
exchange, agreed to sell only that producer’s products and to meet
set sales requirements. Ibid. ; T. Pegram, Battling Demon
Rum: The Struggle for a Dry America, 1800–1933, p. 95 (1998). To
meet those requirements, saloonkeepers often encouraged
irresponsible drinking. Id. , at 97. The three-tiered
distribution model was adopted by States at least in large part to
preclude this system. See Arnold’s Wines, Inc. v. Boyle , 571 F.3d 185, 187 (CA2 2009). 8 The provision read as
follows: “That all fermented, distilled, or other intoxicating
liquors or liquids transported into any State or Territory or
remaining therein for use, consumption, sale or storage therein,
shall upon arrival in such State or Territory be subject to the
operation and effect of the laws of such State or Territory enacted
in the exercise of its police powers, to the same extent and in the
same manner as though such liquids or liquors had been produced in
such State or Territory, and shall not be exempt therefrom by
reason of being introduced therein in original packages or
otherwise.” Ch. 728, 26Stat. 313, 27 U. S. C.
§121. 9 That was the position
expressed in an opinion issued by Attorney General Wickersham, 30
Op. Atty. Gen. 88 (1913), and President Taft’s veto, which Congress
overrode, was based on exactly this ground. 49 Cong. Rec. 4291
(1913) (Veto Message of the President). 10 The
Act provided: “That the shipment or transportation . . .
of any spirituous, vinous, malted, fermented, or other intoxicating
liquor of any kind, from one State . . . into any other
State . . . which said spirituous, vinous, malted,
fermented, or other intoxicating liquor is intended, by any person
interested therein, to be received, possessed, sold, or in any
manner used, either in the original package or otherwise, in
violation of any law of such State . . . is hereby
prohibited.” 37Stat. 699–700. 11 This
principle was also invoked in dormant Commerce Clause cases
involving other products. See, e.g. , Minnesota v. Barber , 136 U.S.
313 , 319, 323 (1890); Railroad Co. v. Husen , 95 U.S.
465 , 472 (1878). 12 Lower
court decisions issued between the enactment of the Webb-Kenyon Act
and the ratification of the Eighteenth Amendment interpreted the
Act this way. See Evansville Brewing Assn. v. Excise
Comm’n of Jefferson Cty., Ala. , 225 F. 204 (ND Ala. 1915); Southern Express Co. v. Whittle , 194 Ala. 406, 69 So.
652 (1915); Brennen v. Southern Express Co. , 106
S. C. 102, 90 S.E. 402 (1916); Charleston &
W. C. R. Co. v. Gosnell , 106 S. C. 84,
90 S.E. 264 (1916) (Hydrick, J., concurring); Monumental Brewing
Co. v. Whitlock , 111 S. C. 198, 97 S.E. 56 (1918).
See also Pacific Fruit & Produce Co. v. Martin , 16 F. Supp. 34 , 39–40 (WD Wash. 1936); Friedman, Constitutional
Law: State Regulation of Importation of Intoxicating Liquor Under
Twenty-first Amendment, 21 Cornell L. Q. 504, 509
(1936). 13 See, e.g. , 76 Cong. Rec. 4172 (1933) (statement of Sen. Borah)
(§2 of Twenty-first Amendment would “incorporat[e] [Webb-Kenyon]
permanently in the Constitution of the United States”); id. ,
at 4168 (statement of Sen. Fess) (“[T]he second section of the
joint resolution . . . is designed to permit the Federal
authority to assist the States that want to be dry to remain dry”); id. , at 4518 (statement of Rep. Robinson) (“Section 2
attempts to protect dry states”). 14 See
Nielson, No More “Cherry-Picking”: The Real History of the 21st
Amendment’s §2, 28 Harv. J. L. & Pub. Pol’y 281, 286,
n. 21 (2004). See generally E. Brown, Ratification of the
Twenty-first Amendment to the Constitution of the United States;
State Convention Records and Laws (1938). 15 The
dissent characterizes the Court as a “committee of nine” that has
“stray[ed] from the text” of the Twenty-first Amendment and
“impose[d] [its] own free-trade rules” on the States. Post, at 8, 15 (opinion of J. Gorsuch). This is empty rhetoric. The
dissent itself strays from a blinkered reading of the Amendment.
The dissent interprets §2 of the Amendment to mean more than it
literally says, arguing that §2 covers the residency requirements
at issue even though they are not tied in any way to what the
Amendment actually addresses, namely, “the transportation or
importation” of alcohol across state lines. See post, at 2,
n. 1. And the dissent agrees that §2 cannot be read as broadly
as one might think if its language were read in isolation and not
as part of an integrated constitutional scheme. See post, at
2. The dissent asserts that §2 does not abrogate all previously
adopted constitutional provisions, just the dormant Commerce
Clause. But the dissent does not say whether it thinks §2 allows
the States to adopt alcohol regulations that serve no conceivable
purpose other than protectionism. Even the dissent below did not go
that far. See n. 18, infra . If §2 gives the States carte blanche to engage in protectionism, we suppose that
Tennessee could restrict licenses to persons who can show that
their lineal ancestors have lived in the State since 1796 when the
State entered the Union. Does the dissent really think that this is
what §2 was meant to permit? 16 See, e.g., Granholm v. Heald , 544
U.S. 460 , 497–498 (2005) (Thomas, J., dissenting); Healy v. Beer Institute , 491 U.S.
324 , 349 (1989) (Rehnquist, C. J., dissenting); 324
Liquor Corp. v. Duffy , 479 U.S.
335 , 352–353 (1987) (O’Connor, J., dissenting); Bacchus
Imports, Ltd. v. Dias , 468 U.S.
263 , 281–282 (1984) (Stevens, J., dissenting). The dissent
rehashes this debate, see post , at 5–8, 14, asserting that
the Webb-Kenyon Act, and thus §2, were “understood” to repudiate
not only the original-package cases, but also the
antidiscrimination rule articulated in cases including Scott v. Donald , 165 U.S.
58 (1897). But this Court’s modern §2 decisions—not simply the
lower court decisions at which the dissent takes aim, see post , at 6, n. 3—establish that those enactments,
though no doubt aimed at granting States additional “discretion to
calibrate alcohol regulations to local preferences,” post ,
at 2, did not exempt States from “the nondiscrimination principle
of the Commerce Clause.” Granholm , supra , at
487. 17 Justice Scalia, for his part, thought
the “statute’s invalidity [was] fully established by its facial
discrimination against interstate commerce”—discrimination that in
his view “eliminate[d] the immunity afforded by the Twenty-first
Amendment.” Healy , supra , at 344 (opinion concurring
in part and concurring in judgment) (citing Bacchus , supra , at 275–276). 18 The
Association’s argument is more extreme than that of the dissent
below, which recognized that in-state distribution laws that “serve
no purpose besides ‘economic protectionism’ ” remain subject
to dormant Commerce Clause scrutiny. Byrd v. Tennessee
Wine and Spirits Retailers Assn. , 883 F.3d 608, 633 (CA6 2018)
(Sutton, J., concurring in part and dissenting in part) (quoting Bacchus , supra ,at 276). 19 See Granholm , 544 U. S., at 518, and n. 6 (Thomas, J.,
dissenting) (licensing schemes adopted by three-tier States
following ratification of Twenty-first Amendment discriminated “by
requiring in-state residency or physical presence as a condition of
obtaining licenses”) (collecting statutes); Brief for Petitioner
33–34 (collecting residency-requirement statutes). See also Brief
for State of Illinois et al. as Amici Curiae 7–8
(referencing 19th-century state statutes that required “retailers
to reside in-state or to maintain an in-state
presence”). 20 See
1939 Tenn. Pub. Acts, ch. 49, §§5–8; Brief for Petitioner 34
(collecting durational-residency requirement statutes); Brief for
State of Illinois et al. as Amici Curiae 24
(same). 21 Real
Silk Hosiery Mills v. Portland , 268
U.S. 325 , 335–336 (1925) (license tax on solicitors of orders
to be filled by an out-of-state manufacturer); Shafer v. Farmers Grain Co. of Embden , 268 U.S.
189 , 197–201 (1925) (license requirement for the purchase of
grain shipped immediately out of the State); Stewart v. Michigan , 232 U.S.
665 , 669–670 (1914) (state law requiring a license for catalog
sales); Crenshaw v. Arkansas , 227
U.S. 389 , 399–401 (1913) (state law requiring a foreign
corporation actively soliciting sales in State to obtain a
license); Dozier v. Alabama , 218
U.S. 124 , 127–128 (1910) (licensing requirement on the
solicitors of photography enlargement services and frames
manufactured out of State); International Textbook Co. v. Pigg , 217 U.S.
91 , 107–111 (1910) (state law requiring an out-of-state
educational publishing company to pay a license fee for exchanging
materials with customers); Rearick v. Pennsylvania , 203 U.S.
507 , 510–511 (1906) (ordinance requiring license to solicit
orders for out-of-state goods); Norfolk & Western R. Co. v. Sims , 191 U.S.
441 , 449–451 (1903) (state licensing requirement on express
company acting as agent for importer of a sewing machine); Brennan v. Titusville , 153 U.S.
289 , 306–308 (1894) (licensing tax on persons engaged in trade
on behalf of firms doing business outside the State); Corson v. Maryland , 120 U.S.
502 , 505–506 (1887) (state licensing requirement as applied to
agent of out-of-state firm soliciting sales); Welton v. Missouri , 91 U.S.
275 , 278, 282–283 (1876) (state law requiring payment of
license tax by sellers of out-of-state goods). 22 Our
analysis and conclusion apply as well to the provision requiring
all officers and directors of corporate applicants to satisfy the
2-year residency requirement. See 883 F. 3d, at 623. SUPREME COURT OF THE UNITED STATES

															_________________

															No. 18–96

															_________________

															TENNESSEE WINE AND SPIRITS RETAILERS
ASSOCIATION, PETITIONER v. RUSSELL F. THOMAS, EXECUTIVE
DIRECTOR OF THE TENNESSEE ALCOHOLIC BEVERAGE COMMISSION,
et al.

															on writ of certiorari to the united states
court of appeals for the sixth circuit

															[June 26, 2019]

															Justice Gorsuch, with whom Justice Thomas
joins, dissenting.

															Alcohol occupies a complicated place in this
country’s history. Some of the founders were enthusiasts; Benjamin
Franklin thought wine was “proof that God loves us.” Letter from B.
Franklin to A. Morellet (July 1779), in 7 Writings of Benjamin
Franklin 437 (A. Smyth ed. 1907). Many in the Prohibition era were
decidedly less enamored; they saw “liquor [a]s a lawlessness unto
itself.” Duckworth v. Arkansas , 314 U.S.
390 , 398 (1941) (Jackson, J., concurring in result). Over time,
the people have adopted two separate constitutional Amendments to
adjust and then readjust alcohol’s role in our society. But through
it all, one thing has always held true: States may impose residency
requirements on those who seek to sell alcohol within their borders
to ensure that retailers comply with local laws and norms. In fact,
States have enacted residency requirements for at least 150 years,
and the Tennessee law at issue before us has stood since 1939.
Today and for the first time, the Court claims to have discovered a
duty and power to strike down laws like these as unconstitutional.
Respectfully, I do not see it.

															Start with the text of the Constitution. After
the Nation’s failed experiment with Prohibition, the people
assembled in conventions in each State to adopt the Twenty-first
Amendment. In §1, they repealed the Eighteenth Amendment’s
nationwide prohibition on the sale of alcohol. But in §2, they
provided that “[t]he transportation or importation into any State
. . . for delivery or use therein of intoxicating
liquors, in violation of the laws thereof, is hereby prohibited.”
The Amendment thus embodied a classically federal compromise:
Nationwide prohibition ended, but States gained broad discretion to
calibrate alcohol regulations to local preferences. And under the
terms of this compromise, Tennessee’s law imposing a two-year
residency requirement on those who seek to sell liquor within its
jurisdiction would seem perfectly permissible.[ 1 ]

															Of course, §2 does not immunize state laws from all constitutional claims. Everyone agrees that state laws
must still comply with, say, the First Amendment or the Equal
Protection Clause. Ante , at 11–12. But the challenge before
us isn’t based on any constitutional provision like that. Instead,
we are asked to decide whether Tennessee’s residency requirement
impermissibly discriminates against out-of-state residents and
recent arrivals in violation of the “dormant Commerce Clause”
doctrine. And that doctrine is a peculiar one. Unlike most
constitutional rights, the dormant Commerce Clause doctrine

															cannot be found in the text of any
constitutional provision but is (at best) an implication from one.
Under its banner, this Court has sometimes asserted the power to
strike down state laws that discriminate against nonresidents on
the ground that they usurp the authority to regulate interstate
commerce that the Constitution assigns in Article I to Congress.
But precisely because the Constitution assigns Congress the
power to regulate interstate commerce, that body is free to rebut
any implication of unconstitutionality that might otherwise arise
under the dormant Commerce Clause doctrine by authorizing States to
adopt laws favoring in-state residents. Prudential Ins. Co. v. Benjamin , 328 U.S.
408 , 434–436 (1946).

															And that’s exactly what happened here. In the
Webb-Kenyon Act of 1913, Congress gave the States wide latitude to
restrict the sale of alcohol within their borders. See 37Stat. 699
(codified at 27 U. S. C. §122). Not only is that law
still on the books today, §2 of the Twenty-first Amendment closely
“followed the wording of the 1913 Webb-Kenyon Act.” Ante , at
11, n. 5. Accordingly, the people who adopted the Amendment
naturally would have understood it to constitutionalize an
“exception to the normal operation of the [dormant] Commerce
Clause.” Craig v. Boren , 429
U.S. 190 , 206 (1976). After all, what Congress can do by
statute “surely the people may do . . . through the
process of amending our Constitution.” Granholm v. Heald , 544 U.S.
460 , 494 (2005) (Stevens, J., dissenting). So in this area, at
least, we should not be in the business of imposing our own
judge-made “dormant Commerce Clause” limitations on state
powers.

															What the relevant constitutional and statutory
texts suggest, history confirms. Licensing requirements for the
sale of liquor are older than the Nation itself. Byse, Alcoholic
Beverage Control Before Repeal, 7 Law & Contemp. Prob. 544,
544–547 (1940). Colonial authorities generally allowed sales only
by those who were deemed “ ‘fit and suitable’ ” and who
agreed to post a bond conditioned upon compliance with local
regulations. Id. , at 545. States started adopting residency
requirements as early as 1834, when New Hampshire began requiring
any person who sold liquor “in any quantity less than one gallon”
to obtain a license “from the selectmen of the town or place where
such person resides.” State v. Adams , 6 N. H.
532, 533 (1834). In 1845, Missouri adopted a law nearly identical
to the Tennessee statute now before us, requiring those seeking to
sell liquor to have resided in the State for two years. Mo. Rev.
Stat. app., p. 1099. In the decades that followed, several
other States and Territories followed suit and enacted laws like
Tennessee’s.[ 2 ]

															At the time these residency requirements were
adopted they were widely understood to be constitutional, and
courts generally upheld them against legal challenges. H. Black,
Laws Regulating the Manufacture and Sale of Intoxicating Liquors
§30, pp. 39–40, and n. 33 (1892) (collecting cases).
Indeed, in the mid-19th century this Court “recognized a broad
authority in state governments to regulate the trade of alcoholic
beverages within their borders free from implied restrictions under
the Commerce Clause.” Craig , 429 U. S., at 205 (citing
the License Cases , 5 How. 504, 579 (1847)).

															Things became more contentious only toward the
end of the 19th century. By then, this Court had begun to take a
more muscular approach to the dormant Commerce Clause and started
using that implied doctrine to strike down state laws that
restricted the sale of imported liquor. See Bowman v. Chicago & Northwestern R. Co. , 125 U. S.

															465 (1888); Leisy v. Hardin , 135 U.S.
100 (1890). But this judicial activism did not go unnoticed,
and in 1890 Congress responded by passing the Wilson Act. Ch. 728,
26Stat. 313 (codified at 27 U. S. C. §121). That law
sought to bolster the authority of States to regulate the
distribution of liquor within their borders by providing that
liquor shipped into a State would “upon arrival in such State
. . . be subject to the operation and effect of the laws
of such State . . . to the same extent and in the same
manner as though such [liquor] had been produced in such
State.”

															Still, the Court did not seem to get the
message. A second wave of dormant Commerce Clause attacks on state
laws soon followed, and in the process they highlighted some of the
Wilson Act’s limitations. In Scott v. Donald , 165 U.S.
58 (1897), the Court addressed South Carolina’s state monopoly
system for the sale of liquor, which required state agents to favor
domestic products and prohibited consumers from receiving
out-of-state shipments for personal use. The Court held that this
system unconstitutionally discriminated in favor of domestic
products “as against similar products of the other States.” Id. , at 101. Citing the text of the Wilson Act, including
the phrase “to the same extent and in the same manner,” the Court
emphasized that the Act did not go so far as to authorize States to
“discriminate injuriously against products of other States.” Id. , at 100. Then, in Rhodes v. Iowa , 170 U.S.
412 (1898), the Court further curbed the States’ authority to
restrict liquor distribution by construing the Wilson Act’s phrase
“upon arrival in such State” to mean arrival at the purchaser’s
address, rather than arrival within the State’s borders. Id. , at 421, 426; see also Vance v. W. A. Vandercook Co., 170 U.S.
438 (1898).

															Once more, however, Congress stepped in to
repudiate this Court’s decisions, this time in unmistakably
sweeping language. In the Webb-Kenyon Act of 1913, Congress went so
far as to “[take] the protection of interstate commerce away ” from the distribution of liquor within a State’s
borders. Clark Distilling Co. v. Western Maryland
R. Co. , 242 U.S.
311 , 325 (1917) (emphasis added). The language Congress used
could not have been plainer: The Act “prohibited” any “shipment or
transportation” of alcoholic beverages “into any State” when they
are “intended, by any person interested therein, to be received,
possessed, sold, or in any manner used . . . in violation
of any law of such State.” 27 U. S. C. §122. Within a few
years, the Court conceded the Webb-Kenyon Act’s constitutionality,
acknowledging along the way that the law was designed to—and
did—“prevent the immunity characteristic of interstate commerce
from being used to permit the receipt of liquor through such
commerce in States contrary to their laws.” Clark
Distilling , 242 U. S., at 324.[ 3 ]

															This history bears special relevance because
everyone agrees that, whatever other powers §2 grants the States,
at a minimum it “ ‘constitutionaliz[ed]’ ” the similarly
worded Webb-Kenyon Act. Ante , at 11, n. 5, 21. Nor can
there be much doubt how most everyone understood the terms of the
Act and the Amendment that embodied it. Because “centralized
regulation did not work,” the Twenty-first Amendment both ended
nationwide prohibition in §1 and authorized local control in §2.
Yablon, The Prohibition Hangover: Why We Are Still Feeling the
Effects of Prohibition, 13 Va. J. Soc. Pol’y & L. 552, 584
(2006). As a leading study noted at the time, “it was a mistake to
regard the United States as a single community in which a uniform
policy of liquor control could be enforced.” R. Fosdick & A.
Scott, Toward Liquor Control 10 (1933) (Fosdick & Scott). Ours
is a vast and diverse Nation, and those who adopted the Amendment
believed that what works for one State may not work for another.
Consistent with this widespread public understanding of the
Amendment’s terms, at least 18 States adopted residency
requirements for retailers within the first 15 years after its
ratification.[ 4 ]

															This Court’s initial cases also reflected the
same understanding of the Amendment’s effect. Just a few years
after ratification, a unanimous Court upheld discriminatory state
liquor laws against a dormant Commerce Clause attack, explaining
that “to construe the Amendment as saying, in effect: [the State]
must let imported liquors compete with the domestic on equal terms
. . . would involve not a construction of the Amendment,
but a rewrit-

															ing of it.” State Bd. of Equalization of
Cal. v. Young’s Market Co. , 299 U.S.
59 , 62 (1936). Other early cases reached similar conclusions.
See, e.g. , Mahoney v. Joseph Triner Corp. , 304 U.S.
401 , 403 (1938) (“[D]iscrimination against imported liquor is
permissible”); Indianapolis Brewing Co. v. Liquor Control
Comm’n , 305 U.S.
391 , 394 (1939) (“Whether the Michigan law should not more
properly be described as a protective measure, we have no occasion
to consider,” for “whatever its character, the law is valid”). In
short, this Court “recognized from the start” that the Twenty-first
Amendment allowed the States to regulate alcohol “ ‘unfettered
by the Commerce Clause.’ ” Granholm , 544 U. S., at
517 (Thomas, J., dissenting).[ 5 ]

															Straying from the text, state practice, and
early precedent, and leaning instead on the Amendment’s famously
sparse legislative history, the Court says it can find no evidence
that §2 was intended to authorize “protectionist” state
laws. Ante , at 21, 22 n. 15. But even there plenty of
evidence can be found that those who ratified the Amendment wanted
the States to be able to regulate the sale of liquor free of
judicial meddling under the dormant Commerce Clause—and there is no
evidence they wanted judges to have the power to decide that state
laws restricted

															competition “too much.”[ 6 ] After all, both before Prohibi- tion and after
repeal, robust competition in the liquor industry was far from
universally considered an unalloyed good; lower prices enabled
higher consumption and invited social problems along the way. T.
Pegram, Battling Demon Rum 94–96 (1998); Fosdick & Scott 43–44,
81. The point of §2 was to allow each State the opportunity to
assess for itself the costs and benefits of free trade in alcohol.
Reduced competition and increased prices were foreseeable
consequences of allowing such unfettered state regulation, but they
were consequences the people willingly accepted with the compromise
of the Twenty-first Amendment.[ 7 ]

															That leaves only our modern precedent to
consider—and even here the initial returns support Tennessee. In Hostetter v. Idlewild Bon Voyage Liquor Corp ., 377 U.S.
324 (1964), for example, this Court addressed a New York law
that interfered with the federally regulated sale of alcohol to
passengers departing from an airport, which the passengers would
not receive until they arrived at their “foreign destination.” Id. , at 325. Emphasizing that “ultimate delivery and use”
was “in a foreign country,” this Court held that the Twenty-first
Amendment did not permit New York 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.” Id. , at 333–334. But at the same time, the
Court took pains to reassure everyone that the States’ core
authority to “restrict, regulate, or prevent the traffic and
distribution of intoxicants within [their] borders” remained
“unquestioned” and “unconfined” by the dormant Commerce Clause. Id. , at 330; see also Capital Cities Cable , Inc. v. Crisp , 467 U.S.
691 , 713 (1984) (describing “the core §2 power” as a State’s
authority “directly to regulate the sale or use of liquor within
its borders”).

															Consistent with that understanding, this Court
in Heublein , Inc. v. South Carolina Tax
Comm’n , 409 U.S.
275 (1972), unanimously upheld a South Carolina law permitting
producers to transfer liquor to in-state wholesalers only through
“resident representative[s].” Id. , at 277. Because the
requirement was an “appropriate element in

															the State’s system” of regulating the sale of
alcohol “ ‘within its borders,’ ” this Court held that
the State could enforce it “ ‘unconfined by traditional
Commerce Clause limitations.’ ” Id. , at 283 (quoting Hotstetter , 377 U. S., at 330). To be sure, in even
later cases the Court declined to uphold state laws that, in
substantial effect, regulated the sale of alcohol in other states. E.g. , Brown-Forman Distillers Corp. v. New
York State Liquor Authority , 476 U.S.
573 (1986); Healy v. Beer Institute , 491 U.S.
324 (1989). But those decisions merely tracked the text of the
Twenty-first Amendment, which grants States the power to regulate
liquor only “for delivery or use therein .”

															The truth is, things have begun to shift only in
very recent years. Bending to the same impulses that moved it at
the beginning of the 20th century, this Court has lately begun
flexing its dormant Commerce Clause muscles once more to strike
down state laws even in core areas of state authority under §2. So,
for example, in Bacchus Imports , Ltd. v. Dias , 468 U.S.
263 (1984), the Court considered Hawaii’s tax exemption for
certain liquor products manufactured in-state. As the Court
described it, Hawaii’s sole “purpose” in adopting its tax exemption
was “ ‘to promote a local industry,’ ” not “to promote
temperance.” Id. , at 276. And a narrow majority considered
this fact fatal because the law, in its judgment, did not implicate
“any clear concern” of the Amendment—even though the Amendment was
adopted to insulate state regulation from judicial charges of
unduly interfering with interstate commerce. Ibid. Yet, even under as bold a decision as Bacchus , Tennessee’s residency requirement should
survive—and easily. A residency requirement may not be the only way
to ensure retailers will be amenable to state regulatory oversight,
but it is surely one reasonable way of accomplishing that
admittedly legitimate goal.[ 8 ]
Residency also increases the odds that retailers will have a stake
in the communities they serve.[ 9 ] As Judge Sutton observed in the proceedings below, this
same commonsense rationale may explain why Congress requires
federal court of appeals judges to live within their circuits, 28
U. S. C. §44(c), and district court judges to live within
their districts, §134(b). Byrd v. Tennessee Wine and
Spirits Retailers Assn. , 883 F.3d 608, 633 (2018). Surely,
Tennessee cannot be faulted for sharing a similar view. Of course,
Tennessee’s residency requirement reduces competition in the liquor
market by excluding nonresidents or recent arrivals. But even that
effect might serve a legitimate state purpose by increasing the
price of alcohol and thus moderating its use, an objective States
have always remained free to pursue under the bargain of the
Twenty-first Amendment.[ 10 ]

															To defend its judgment today, the Court is thus
left to try to wring support from our 2005 decision in Granholm . Granholm extended Bacchus and its
reasoning to strike down on dormant Commerce Clause grounds a state
law for disfavoring out-of-state wine producers, holding that

															“Section 2 does not allow States to regulate the
direct shipment of wine on terms that discriminate in favor of
in-state producers .” 544 U. S., at 476 (emphasis
added). But even this holding doesn’t spell doom for Tennessee’s
retailer residency requirements. As even the Court today
acknowledges, “ Granholm repeatedly spoke of discrimination
against out-of-state products and producers” and did not refer more
generally to discrimination against nonresidents. Ante , at
27.[ 11 ]

															To claim Granholm ’s support, the majority
is thus forced to characterize Granholm ’s framing of the
issue before it as purely incidental—the state laws at issue there
happened to discriminate against out-of-state products, so the
Court just happened to talk a lot about products. As the Court
seems to read Granholm , then, it really meant to disapprove any discrimination against out-of-staters. But this badly
misreads Granholm . The distinction between producers and
other levels of the distribution system was integral to its
reasoning and result—in fact, it was precisely how Granholm sought to reconcile its result with the longstanding tradition of
state residency requirements. So yes, Granholm held that the
Twenty-first Amendment does not protect laws that discriminate
against out-of-state products, but it also expressly
reaffirmed the “ ‘unquestionabl[e] legitima[cy]’ ” of
state laws that require “ ‘all liquor sold for use in the
State [to] be purchased from a licensed in-state
wholesaler.’ ” 544 U. S., at 489 (quoting North
Dakota v. United States , 495 U.S.
423 , 432 (1990); id. , at 447 (Scalia, J., concurring in
judgment)). And I would have thought that restatement of the law
more than

															enough to resolve today’s case.

															Having now effectively abandoned Granholm ’s distinction between products and their
distribution and promising to subject both to dormant Commerce
Clause scrutiny, it’s hard not to wonder what’s left of Webb-Kenyon
and §2. For its part, the Court assures us that it will still allow
each State “leeway to enact the measures that its citizens
believe are appropriate” to address public health and safety. Ante , at 31 (emphasis added). Yet the Court then proceeds to
turn around and dismantle the longstanding judgment of the citizens
of Tennessee on just these questions, dismissing them as
“protectionist measures with no demonstrable connection” to public
health and safety. Ibid. And it promises it will not sustain
any state law whose protectionist “effect[s] . . .
predomina[te].” Ante , at 32–33.

															What are lower courts supposed to make of this?
How much public health and safety benefit must there be to overcome
this Court’s worries about protectionism “predominat[ing]”? Does
reducing competition in the liquor market, raising prices, and thus
reducing demand still count as a public health benefit, as many
States have long supposed? And if residency requirements are
problematic, what about simple physical presence laws? After
all, can’t States “thoroughly investigate applicants” for liquor
licenses without requiring them to have a brick-and-mortar store in
the State? Ante , at 34. The Court offers lower courts no
more guidance than to proclaim delphically that “each variation
must be judged based on its own features.” Ante , at 28.

															As judges, we may be sorely tempted to
“rationalize” the law and impose our own free-trade rules for all
goods and services in interstate commerce. Certainly, that
temptation seems to have proven nearly irresistible for this Court
when it comes to alcohol. And as Justice Cardozo once observed, “an
intellectual passion . . . for symmetry of form and
substance” is “an ideal which can never fail to exert some measure
of attraction upon the professional experts who make up the lawyer
class.” B. Cardozo, The Nature of the Judicial Process 34 (1921).
But real life is not always so tidy and satisfactory, and neither
are the democratic compromises we are bound to respect as judges.
Like it or not, those who adopted the Twenty-first Amendment took
the view that reasonable people can disagree about the costs and
benefits of free trade in alcohol. They left us with clear
instructions that the free-trade rules this Court has devised for
“cabbages and candlesticks” should not be applied to alcohol. Carter v. Virginia , 321 U.S.
131 , 139 (1944) (Frankfurter, J., concurring). Under the terms
of the compromise they hammered out, the regulation of alcohol
wasn’t left to the imagination of a committee of nine sitting in
Washington, D. C., but to the judgment of the people
themselves and their local elected representatives. State
governments were supposed to serve as “lab- orator[ies]” of
democracy, New State Ice Co. v. Liebmann , 285 U.S.
262 , 311 (1932) (Brandeis, J., dissenting), with “broad power
to regulate liquor under §2,” Granholm , 544 U. S., at
493. If the people wish to alter this arrangement, that is their
sovereign right. But until then, I would enforce the Twenty-first
Amendment as they wrote and originally understood it. Notes 1 The Court suggests that
Tennessee’s residency requirement may fall outside the terms of the
Amendment because retailers may not be involved in the
“transportation or importation” of liquor into the State. Ante , at 26. But the parties do not dispute that
“transportation or importation” into the State is involved here.
And understandably so: Unless the liquor stores intend to sell only
Tennessee-made liquor (and no one so alleges), it is hard to see
how transportation or importation would not be
involved. 2 See, e.g ., 1859
Neb. Terr. Laws p. 256; Iowa Code §1575 (1860); 1875 Pa. Laws
p. 42; N. Y. Rev. Stat. ch. 29, §23 (1896); S. C. Code Ann.
§562 (1902); Minn. Stat. §1529 (1905); R. I. Gen. Laws, ch. 123, §2
(1909); 1911 Ala. Acts no. 259; Neb. Rev. Stat. §3844 (1913); Ind.
Code §8323(e) (1914). 3 The Court cites a few
pre-Prohibition cases—from one federal district court and two state
courts—that, it says, construed Webb-Kenyon to preserve a rule
against discrimination. Ante , at 20, n. 12. But these
cases offer negligible support. True, two cases construed the Act’s
authorization of “any laws” as limited to “valid laws,” a category
from which these courts excluded laws discriminating against the
products of other States. See Evansville Brewing Assn. v. Excise Comm’n of Jefferson Cty. , Ala. , 225 F. 204,
208 (ND Ala. 1915); Brennen v. Southern Express Co. ,
106 S. C. 102, 108–111, 90 S.E. 402, 404 (1916). But there is
little reason to think courts would have considered residency
requirements for liquor retailers “invalid,” as those laws had
generally been upheld prior to Webb-Kenyon. And at least one of the
cited cases appears to support the opposite view: “[A]ll commands
or prohibitions ancillary and reasonably related to the state’s
purpose to promote temperance . . . cannot be thwarted or
annulled on any idea that constitutional rights are thereby
violated.” Southern Express Co. v. Whittle , 194 Ala.
406, 436, 69 So. 652, 661 (1915). At any rate, a few scattered,
thinly reasoned state and district court cases hardly settle
anything. 4 Granholm v. Heald , 544 U.S.
460 , 518, and n. 6 (2005) (Thomas, J., dissenting)
(collecting state statutes); Brief for Petitioner 33–34 (same). See
also Note, Economic Localism in State Alcoholic Beverage
Laws—Experience Under the Twenty-first Amendment, 72 Harv. L. Rev.
1145, 1148–1149, and n. 25 (1959). At least 10 States,
including Tennessee, required a fixed period of residency of one
year or more. Brief for Petitioner 34 (collecting
statutes). 5 The Court discounts the
compelling evidence of postratification practice because, it
suggests, States may have been relying on the Court’s expansive
interpretation of §2 in State Bd. of Education of Cal. v. Young’s Market , 299 U.S.
59 (1936), rather than their own independent understanding of
the Amendment. Ante , at 29. But most of the residency
requirements were enacted before that November 1936
decision. Although many of the statutes were codified after Young’s Market , a large majority were enacted earlier. Compare, e.g. , Wyo. Stat. Ann. §53–204 (1945);
Idaho Code Ann. §18–130 (1940); R. I. Gen. Laws ch. 163 §4
(1938); N. J. Rev. Stat. §33:1–25 (1937); with 1935 Wy. Sess.
Laws ch. 87; 1935 Idaho Sess. Laws ch. 103; 1934 R. I. Laws
p. 52; 1933 N. J. Laws p. 1193. 6 See, e.g. , 76
Cong. Rec. 4143 (1933) (statement of Sen. Blaine) (“The purpose of
section 2 is to restore to the States by constitutional amendment
absolute control in effect over interstate commerce affecting
intoxicating liquors”); id ., at 4225 (statement of Sen.
Swanson) (“[I]t is left entirely to the States to determine in what
manner intoxicating liquors shall be sold or used and to what
places such liquors may be transported”); Ratification of the
Twenty-first Amendment to the Constitution of the United States:
State Convention Records and Laws 50 (E. Brown ed. 1938) (statement
of President Robinson of the Connecticut convention)
(“[F]undamentally our fight has been . . . for the return
to the peoples of the several states of their constitutional right
to govern themselves in their internal affairs”); id ., at
174 (statement of Del. Simmons to the Kentucky convention) (“The
regulation of the sale of liquor is a state concern”); id .,
at 247 (statement of Mme. Chairman Gaylord of the Missouri
convention) (“We have never been in favor of a National Regulation
to take the place of the 18th Amendment . . . . We
believe that each state should work out sane and sensible liquor
control measures, responsive to the sentiment of the people of each
state”); id ., at 322 (statement of Gov. White of Ohio)
(“[T]he control of intoxicating liquors presents a problem of first
magnitude,” and “[t]he solution of the problem will be returned to
the several states”). 7 The majority worries that
giving full effect to §2 might allow a State to pass a statute
restricting licenses to persons whose ancestors have resided in the
State for 200 years. Ante , at 22, n. 15. But under parts of
the Constitution that §2 left intact, such as the Equal Protection
and Due Process clauses, any state law must bear a rational
relationship to a legitimate state interest. Besides and
understandably, the evidence before us suggests that the people who
ratified §2 weren’t as concerned with States adopting fanciful laws
like the majority’s as they were with eliminating a very real
threat—that judges would continue to use the dormant Commerce
Clause to meddle with state regulatory authority. 8 See Southern Wine & Spirits of Am. , Inc . v. Division
of Alcohol and Tobacco Control , 731 F.3d 799, 811 (CA8 2013)
(Colloton, J.); Hinebaugh v. James , 119 W. Va. 162,
164, 192 S.E. 177, 179 (1937); Welsh v. State , 126
Ind. 71, ___, 25 N.E. 883, 885 (1890); Note, 72 Harv. L. Rev., at
1148. 9 See Byrd v. Tennessee Wine and Spirits Retailers Assn. , 883 F.3d 608,
633 (2018) (CA6 2018) (Sutton, J., concurring in part and
dissenting in part); Southern Wine & Spirits , 731
F. 3d, at 811. 10 See
Brief for U. S. Alcohol Policy Alliance et al. as Amici
Curiae 5–24; Lawson, The Future of The Three-Tiered System as a
Control of Marketing Alcoholic Beverages, in Social and Economic
Control of Alcohol 32–34 (C. Jurkiewicz & M. Painter eds.,
2008); 883 F. 3d, at 634 (opinion of Sutton, J.); cf. 44
Liquormart , Inc . v. Rhode Island , 517 U.S.
484 , 504 (1996) (acknowledging a State’s legitimate interest in
“reducing alcohol consumption”). 11 See
also Granholm , 544 U. S., at 486 (“States may not give
a discriminatory preference to their own producers”); id .,
at 484–485 (“The Amendment did not give States the authority to
pass nonuniform laws in order to discriminate against out-of-state
goods, a privilege they had not enjoyed at any earlier
time”).

Summary: The Supreme Court struck down Tennessee's durational residency requirements for liquor store license applicants, deeming them a violation of the Commerce Clause. The Court found that the state's two-year residency requirement for initial license applicants blatantly favored Tennessee residents and had little relation to public health and safety, and thus was unconstitutional. While states have some leeway in regulating alcohol under the Twenty-first Amendment, it does not allow for protectionist restrictions on commerce.