What Would Scalia Do With 2,447 Bottles of Wine?
Sometimes the name of a case says it all. Pennsylvania v. 2,447 Bottles of Wine is such an instance. After a county judge’s ruling, the state is poised to pour more than 1,300 bottles of fine wine down the drain -- all because of a misinterpretation of an obsolete, arcane law.
The court got this one wrong. In fact, it doesn’t matter which approach to statutory interpretation you prefer: Justice Antonin Scalia’s textualism or Justice Stephen Breyer’s purposivism. Either way, the wine shouldn’t be wasted.
The facts are pretty straightforward. Pennsylvania prohibits its residents from buying alcohol outside the state and bringing across the border. (It’s allowed to do this because the 21st Amendment to the Constitution, which repealed Prohibition, says you can’t bring liquor into a state in violation of that state’s laws.)
One Arthur Goldman of Pennsylvania was charged with buying wine outside the state system and selling it without a license. The state seized the eponymous 2,447 bottles from Goldman. He subsequently cut a deal that let him keep 1,043 of the bottles, worth about $150,000. That left 1,404, less whatever was broken in the process of the seizure and a few bottles seized as evidence.
The state law is straightforward, too -- sort of. A provision of Pennsylvania law dating back to the 1930s says that alcohol confiscated by the state can be destroyed or transferred “to a hospital for its use.”
Hoping to take advantage of this provision, the Chester County Hospital applied to the court to ask for the confiscated wine. The hospital intended to use the wine “to fund raise for charitable purposes.”
But Chester County Judge Edward Griffith refused to grant the request. In a nine-page order, he reasoned that in its original context, the law must’ve contemplated the use of confiscated liquor for medicinal purposes. 1 Now, Griffith said, the law would not permit transferring the liquor to the hospital for sale. “Since the Liquor Code makes no provision for condemned wine to be sold for any purpose,” he reasoned, “the wine may not be delivered to a hospital for sale.”
This cramped interpretation of the law is unsatisfactory -- both for legal literalists and for those who think the law should be interpreted in the light of achieving its most reasonable purpose.
Start with literalism, or as its proponents call it, textualism. The leading textualists, most prominently Justice Scalia, eschew the use of legislative history to make sense of a law. What they care about is what the law says.
The law in force doesn’t say anything about how or why liquor transferred to hospitals should be used. The purpose is nowhere in the statute book. Thus, on Scalian textualist principles, it’s none of the court’s business what the hospital intends to do with the wine.
Of course, if other provisions of the state’s law, rightly interpreted, prohibit the hospital from putting the wine up for a charity auction, it won’t be able to do so. But there are lots of other things the hospital could do with the wine in support of its charitable purposes. It could hold a bash for donors, and encourage them to write big checks. It could perhaps give the wine to its best employees as a bonus. Depending on Pennsylvania law and how it's interpreted, it could perhaps even find a way to sell the asset out of state.
But even if you think, as I do, that the judge should consider the purpose of the law, he still got the result wrong. Accept for the sake of argument that liquor was once used as medicine, and that this was the reason Pennsylvania law originally contemplated giving confiscated alcohol to hospitals. That rationale has long passed from the scene. The law’s original purpose, in other words, no longer makes any sense.
What should a court do when faced with a statutory purpose that is archaic, obsolete and no longer sensible? The law is still on the books, and it can’t be completely ignored. But it can be interpreted. And the interpreting court should follow Aristotle’s immortal advice: Imagine that those who drafted the law were reasonable people, and act as they would’ve wanted in the light of the new realities that now obtain.
Assuming the framers of the original law wanted confiscated liquor to help hospitals, what would they now want? Most likely, they would still want confiscated liquor to help hospitals. 2 At one time, perhaps, that assistance came through medicinal use. Now it would come in other ways. Regardless, the statute’s true purpose is to take advantage of alcohol confiscation for the benefit of public health.
The judge admitted that giving the wine to the hospital “would serve a good and noble purpose.” That noble purpose can be reached, wholly consistent with the best interpretation of the law. Let’s hope there’s an appeal.
This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.
Another provision of the old liquor code allowed hospital, doctors, dentists and vets to “administer liquor in the regular course of their professional work.” Really.
The court noted that confiscated boats or cars used in liquor smuggling were to be sold not destroyed, unlike liquor -- but that’s at least in part because at one time nonmedicinal liquor consumption was itself condemned as immoral -- a view now abandoned by the law.
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