I don’t have a fundamental problem with divining constitutional principles by implication, provided the implication progresses logically and unavoidably to a particular conclusion. For example, the rights granted in the Bill of Rights usually start out “Congress shall make no law…” — so if you’re only going to respect clearly and literally expressed intent, you would have to conclude that the U.S. Congress can’t abridge your right to free speech, but your state legislature and town council can censor you all they want. The only reason the First Amendment has been interpreted to prevent states and municipalities and not just Congress from abridging your right to free speech is by implication from the Fourteenth Amendment, which provides “nor shall any State deprive any person of life, liberty, or property, without due process of law.” It doesn’t specifically say no state shall deprive you of your First Amendment rights, but it’s a fair implication that most (but not all) people who’ve considered the issue accept. I don’t think that poses a particular problem for originalists or textualists, since the touchstone in interpreting the Constitution isn’t so much what the framers *meant*, but what they *wrote*.

I would also argue that the implication of the Supreme Court’s decision regarding shipments by out-of-state wineries is that the same result should obtain in a controversy over shipments by out-of-state retailers, since I can see no constitutionally meaningful distinction between a wine producer and a wine retailer.

The short answers are #1) Repeals by implications are generally not favored for that exact reason, but how explicit must a repeal be? The 21st Amendment is pretty explicit. and #2) For just that reason — an explicit exception is carved out, so the original provision remains operative except within the scope of the exception. The constitutional issue wasn’t whether the states have the power to regulate commerce in liquor (that much is settled), but whether the state regulation at issue violated some other constitutional principle. For example, a state couldn’t, consistent with its power to regulate commerce in liquor, pass a law stating that the penalty for selling liquor to minors is torture, because that would violate the 8th Amendment. So can the state, consistent with its power to regulate commerce in liquor, pass a law stating that mail shipment by in-state wineries is OK but out-of-state wineries is felonious? SCOTUS said no on the grounds that the dormant commerce clause prohibts discrimination between the states (and since the 21st Amendment says nothing about that, it can’t be read to repeal that part of the dormant commerce clause).

If you are still with this, I have a couple of questions, not for argument sake, but for clarification.

You stated: “If the 21st Amendment indeed contradicts an earlier constitutional clause, we must regard that clause as amended out of the Constitution to the extent of the contradiction.”

If this is true, and if an amendment can be worded so as to omit a specific reference yet still contradict and null a specific clause, what assurance is there that the complete congress understood what they were amending and, more important, that the ratification process went ahead without prejudice or ignorance?

Plus, if it is true, why did the Supreme Court even waste its time claiming that there is a constitutional issue. If the passage of the 21st Amendment already singled out alcohol as a special commerce not to enjoy the same benefits as other interstate commerce, then why would one any facet of the commerce clause apply while the rest does not?

You write that the 21st Amendment “contradicts an earlier and still existing Constitutional clause.” But there’s nothing problematic and unusual about this. Indeed, the whole point of constitutional amendments is usually to contradict an existing clause of the Constitution — and thereby amend and override it. Most famously, of course, the clauses ending slavery contradicted the existing clauses of the Constitution explicitly providing for it. If the 21st Amendment indeed contradicts an earlier constitutional clause, we must regard that clause as amended out of the Constitution to the extent of the contradiction.

The clause in question, as you point out, is the “dormant commerce clause.” This problem here is that the dormant commerce clause is not a clause of the Constitution at all. There is a “commerce clause” which provides that “[t]he Congress shall have Power . . . [t]o regulate Commerce . . . among the several States.” The courts have deduced that if Congress has this power, the state governments do not, and that logical deduction became the so-called “dormant commerce clause.”

Thus, Judge Easterbrook of the Seventh Circuit, writing the opinion in the 2000 wine-shipping case of Bridenbaugh v. Freeman-Wilson, 227 F.3d 848 (7th Cir. 2000), cast the question before the Court as follows: “This case pits the twenty-first amendment, which appears in the Constitution, against the ‘dormant commerce clause,’ which does not. . . . [The 21st Amendment] directly authorizes state control over imports, while the premise of dormant commerce clause jurisprudence is an inference that the grant of power to Congress in Art. I § 8 cl.3 implies a limitation on state authority over the same subject.”

Since the commerce clause came first and the 21st Amendment came later, the two clauses, read in concert with one another, would provide that Congress shall have the exclusive power to regulate commerce among the states except insofar as the regulations pertain to “[t]he transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors.” The 21st Amendment gives the states non-exclusive regulatory authority in that sphere.

The current state of the law following the Supreme Court’s interstate wine-shipping case is that the states do indeed have this regulatory authority but if they exercise it must do so on a non-discriminatory basis. I.e., they may ban all wine shipments, but cannot ban wine shipments originating in some states but not others.

The ideal solution from a policy perspective would be to repeal Section 2 of the 21st Amendment. But these days, when people don’t like what the Constitution says, they tend to ask the courts to rule that it says something else, rather than jump through the hoops of actually amending it. This is one of the main reasons that there are hardly any Americans left today who can distinguish between their interpretation of what the Constitution says and their opinion of what the law should be.