For partisans of the Constitution, quite a battle is shaping up in the Court of Appeals for the Second Circuit regarding the right of New Yorkers to make interstate purchases of wine over the Internet. The case pits a vintner at Virginia, Juanita Swedenburg, against wine wholesalers in the state of New York, where wine lovers are endowed with the right to buy wine from in-state merchants online, but prohibited by the state’s alcoholic beverage control law from purchasing out-of-state wine that hasn’t gone through New York state wholesalers. Such wholesalers, including Peerless Importers and Charmer Industries, reckon New York’s alcoholic beverage control law guarantees them a take on every bottle shipped into the state.

The wholesalers lost the argument at the district court level, when Judge Richard Berman ruled the state alcoholic beverage control law unconstitutional. He did so on the grounds that it was discriminatory; it allowed in-state vintners to ship directly to consumers while denying that right to out-of-state vintners. When a law similar to New York’s was challenged in North Carolina, the judges who ride the Fourth United States Appeals Circuit got around the problem by banning in-state direct shipments. In the case of New York, however, such a solution would, as it did in North Carolina, make illegal an action — buying wine over the Internet from instate sellers — that the state Legislature deemed acceptable.

The lawyer for the plaintiffs, Clint Bolick of the Institute for Justice, put his objection to this sort of solution thusly: “Courts should not be in the business of creating new crimes out of thin air.” It would be better were New York to resolve this conflict in the manner that Virginia chose. In a move friendly to consumers, that state’s Legislature simply removed the ban on Virginians using the phone, fax, mail, or Internet to purchase wine from the rest of the country. Absent action by the Legislature, though, New Yorkers will have to look for protection to the constitutional bedrock known as the Commerce Clause.

It is the idea that only the federal government can regulate interstate commerce, i.e., that states can’t put up protectionist barriers. As Hamilton put it in Federalist No. 11: “The veins of commerce in every part will be replenished, and will acquire additional motion and vigor from a free circulation of the commodities of every part.”The Second Circuit is only the latest to sit on this issue. The Fourth and Fifth Circuits have ruled that discriminatory direct shipment bans like New York’s are unconstitutional. The judges who ride the Seventh Circuit have taken a different view, which is one of the things that makes this case watched so widely. When one of the circuits gets out of sync with the others, it often takes the Supreme Court to sort the matter out.