NATIONAL PROHIBITION CASES
Nos. 29, 30, Original, and Nos. 696, 752, 788, 794, 837
SUPREME COURT OF THE UNITED STATES
Argued March 8, 9, 10, 29, 30, 1920. Decided June 7, 1920.
253 U.S. 350
ORIGINAL, AND APPEALS FROM THE DISTRICT COURTS OF THE UNITED STATES FOR THE DISTRICT OF MASSACHUSETTS, THE WESTERN DISTRICT OF KENTUCKY, THE DISTRICT OF NEW JERSEY, THE EASTERN DISTRICT OF WISCONSIN, AND THE EASTERN DISTRICT OF MISSOURI.
The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. P. 386.
The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present—assuming the presence of a quorum—and not a vote of two-thirds of the entire membership, present and absent. Id. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276.
The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Id. Hawke v. Smith, ante, 221.
The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the Eighteenth Amendment, is within the power to amend reserved by
That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument. Id.
The first section of the Amendment—the one embodying the prohibition—is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every legislative act—whether by Congress, by a state legislature, or by a territorial assembly—which authorizes or sanctions what the section prohibits. Id.
The words “concurrent power” in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several States or any of them; nor do they mean that the power to enforce is divided between Congress and the several States along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs. Id.
The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several States or any of them. Id.
That power may be exerted against the disposal for beverage purposes of liquors manufactured before the Amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being enforced. Id.
While there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, those limits are not transcended by the provision of the
Nos. 29 and 30, Original, bills dismissed; No. 794, reversed; Nos. 696, 752, 788 (264 Fed. Rep. 186), and 837, affirmed.
Statement.
THE seven cases here given one name for convenient reference involved the validity of the Eighteenth Amendment and of certain general features of the National Prohibition Act designed for its enforcement. They were as follows:
No. 29, Original. State of Rhode Island v. A. Mitchell Palmer, Attorney General, and Daniel C. Roper, Commissioner of Internal Revenue. Bill dismissed.
No. 696. George C. Dempsey v. Thomas J. Boynton, United States Attorney for Massachusetts, and Andrew J. Casey, Acting Collector of Internal Revenue for Massachusetts. Appeal from the District Court of the United States for the District of Massachusetts. Decree refusing injunction affirmed.
No. 752. Kentucky Distilleries & Warehouse Company v. W. V. Gregory, District Attorney for the United States for the Western District of Kentucky, and Elwood Hamilton, Collector of Internal Revenue for the Collection District of Kentucky. Appeal from the District Court of the United States for the Western District of Kentucky. Decree refusing injunction affirmed.
No. 788. Christian Feigenspan, a corporation, v. Joseph L. Bodine, United States Attorney for the District of New Jersey, and Charles V. Duffey, Collector of Internal Revenue of the Fifth District of New Jersey. Appeal from the District Court of the United States for the District of New Jersey. Decree refusing injunction affirmed.
No. 794. Hiram A. Sawyer, as United States Attorney for the Eastern District of Wisconsin, Burt Williams, as Collector of Internal Revenue of the Second District of Wisconsin, and Thomas A. Delaney, as Federal Prohibition Enforcement Director for Wisconsin v. Manitowoc Products Company. Appeal from the District Court of the United States for the Eastern District of Wisconsin. Decree granting injunction reversed.
No. 837. St. Louis Brewing Association, a corporation, v. George H. Moore, Collector of Internal Revenue of the First District of Missouri, Walter L. Hensley, United States Attorney for the Eastern District of Missouri, and Frank L. Diggs, Prohibition Agent for the First Internal Revenue District of Missouri. Appeal from the District Court of
Counsel for Parties.
Mr. Herbert A. Rice, Attorney General of Rhode Island, for the plaintiff in No. 29, Original. Mr. A. A. Capotosto, Assistant Attorney General, was on the briefs. See post, p. 354.
Mr. Thomas F. McCran, Attorney General of New Jersey, for the plaintiff in No. 30, Original. Mr. Francis H. McGee, Assistant Attorney General, was on the briefs. See post, p. 356.
Mr. Patrick Henry Kelley for the appellant in No. 696. See post, p. 357.
Mr. Levy Mayer and Mr. William Marshall Bullitt for the appellant in No. 752. See post, p. 357.
Mr. Elihu Root and Mr. William D. Guthrie for the appellant in No. 788. Mr. Robert Crain and Mr. Bernard Hershkopf were on the briefs. See post, pp. 361, 368.
Mr. Ralph W. Jackman for the appellee in No. 794. Mr. William H. Austin was on the brief. See post, p. 380.
Mr. Charles A. Houts, Mr. John T. Fitzsimmons and Mr. Edward C. Crow, for the appellant in No. 837, submitted. See post, p. 380.
The Solicitor General and Mr. William L. Frierson, Assistant Attorney General of the United States, for the defendants in No. 29, Original, the appellees in Nos. 752 and 788, and the appellants in No. 794. Mr. Frierson for the defendants in No. 30, Original, and for the appellees in No. 696, The Solicitor General appearing also on the briefs
By leave of court, briefs of amici curiæ were filed, viz: By Mr. Charles E. Hughes, with the attorneys general of numerous States, supporting the motions to dismiss the bill in No. 29, Original, and against the appeal in No. 752; by Mr. Elihu Root with Messrs. William D. Guthrie, Robert Crain and Bernard Hershkopf, supporting the bill in No. 29, Original; by Mr. Alexander Lincoln with Mr. Michael J. Lynch, supporting the bills in Nos. 29 and 30, Original; by Mr. Aaron A. Ferris, supporting the bill in No. 29, Original; by Mr. Wayne B. Wheeler with Messrs. George S. Hobart, G. Rowland Monroe, R. C. Minton, J. A. White, B. W. Hicks, E. L. McIntyre and Walter H. Bender, against the appeals in Nos. 696, 752 and 788, and supporting the appeal in No. 794; and by Mr. Levi Cooke with Mr. George R. Beneman, supporting the appeal in No. 788.
The chief contentions made in the numerous arguments will be here indicated as fairly as space limits permit—more fully in some of the cases to avoid undue abridgment and repetition in all.
Argument for the State of Rhode Island.
Mr. Rice, for the State of Rhode Island, in No. 29, Original, confined his argument to the validity of the Amendment. Various objections were stated, the one chiefly elaborated being that the Amendment is an invasion of the sovereignty of the complaining State and her people, not contemplated by the amending clause of the Constitution. The amending power, it was contended, is not a substantive power but a precautionary safeguard inserted incidentally to insure the ends set forth in that instrument against errors and oversights committed in its formation. Amendments, as the term indeed implies, are to be limited to the correction of such errors.
All sovereignty resides in the people. The Constitution therefore was submitted for ratification to conventions chosen directly by the people. The possibility of federal encroachment upon state sovereignty was the subject of principal concern when the Constitution was in process of adoption, and, practically as a part of the process, the first ten amendments were added to prevent such encroachments. And it was generally understood and agreed that the boundaries set between state and federal powers were fundamental and permanent.
It is “This Constitution” that may be amended. “This Constitution” is not a code of transient laws but a framework of government and an embodiment of fundamental principles. By an amendment, the identity or purpose of the instrument is not to be changed; its defects may be cured, but “This Constitution” must remain. It would be the greatest absurdity to contend that there was a purpose to create a limited government and at the same time to confer upon that government a power to do away with its own limitations. All of the prior amendments have been declaratory and interpretative or have had relation to a power or to a subject-matter dealt with in the instrument itself. The amending function (under
In the case of this so-called amendment, the representatives of the people of the United States have attempted, not to amend the Constitution of the United States, but to amend the constitution of every State in the Union. If the amending function is construed as coextensive with absolute sovereignty, then the basis of our political system is no longer the right of the people of a State to make and alter their constitution, for their political institutions are at the mercy of others and may be changed against their will.
Argument for the State of New Jersey.
Mr. McCran, for the State of New Jersey, in No. 30, Original, attacked the Amendment as an invasion of state sovereignty not authorized by the amending clause and as not, properly speaking, an amendment, but legislation, revolutionary in character.
The right to amend the Constitution, in the manner provided by
The Amendment is also invalid because its proposal was not affirmatively voted by two-thirds in number of both houses of Congress, and because the proposal did not on
Three-fourths of the States have not ratified it in the constitutional sense, because, in a number of the States counted, the proposal has been, or is subject to be, referred to the people, in pursuance of their constitutions.
Concurrent power under the Amendment is a power in the Federal Government to enforce it only as it relates to the external concerns of the United States or to the domain of the Federal Government in the regulation of interstate commerce heretofore recognized, as distinguished from the right of the State of New Jersey to enforce the Amendment intrastate by virtue of the power conferred upon her exclusively under the Amendment.
The National Prohibition Act is not appropriate legislation under the Amendment. It purports to regulate the manufacture, possession, sale and use of beverages which are not intoxicating and of liquor devoted to medicinal and other non-beverage uses.
Mr. Patrick Henry Kelley, for the appellant in No. 696, took the ground that the Amendment is not self-executing; that, until it is put in execution in the manner prescribed, the existing laws of the States concerning intoxicating liquors must stand unaffected; and that the only way in which the laws and sovereign powers of the States could be superseded under it would be by legislation enacted by the concurrent power of Congress and the several States in the only manner provided for such concurrent action, viz., as authorized by
Argument for Appellant in No. 752.
Mr. Levy Mayer and Mr. William Marshall Bullitt for the appellant in No. 752:
The power of “amendment” contained in
If amendment under
A construction should be judged by its consequences. The fact that a construction “radically changes the whole theory of the relations of the State and Federal Governments to each other and of both these governments to the people” is an irresistible argument against it, “in the absence of language which expresses such a purpose too clearly to admit of doubt.” Slaughter-House Cases, 16 Wall. 36, 78.
“The power of amending the Constitution was intended to apply to amendments which would modify the mode of carrying into effect the original provisions and powers of the Constitution, but not to enable three-fourths of the States to grasp new power at the expense of any unwilling State.” Curtis, Const. History of the United States, vol. 2, p. 160. Every one of the preceding seventeen amendments is concerned with and pertains to “the original provisions and powers of the Constitution.” In addition, the Thirteenth, Fourteenth and Fifteenth Amendments were the result of the arbitrament of war, and their acceptance by the seceding States was made a condition of their readmission into the Union.
If it be decided that the legislatures of three-fourths of the States may, by ratification, validate any amendment, “the indestructible Union of indestructible States” will turn out to be a mere dream and the States will cease “to be coexistent with the National Government.” Texas v. White, 7 Wall. 700, 725; Lane County v. Oregon, 7 Wall. 71, 76; Railroad Co. v. Peniston, 18 Wall. 5, 31.
It is a well-known and established historical fact that the Constitution was ratified by the original States with the distinct agreement that the Bill of Rights expounded in the first ten amendments would be immediately adopted. The States went into the Union with the understanding that by these amendments the sovereignty of the several States would be perpetually preserved, against all federal
Two-thirds of both houses of Congress did not vote to propose the Eighteenth Amendment; and hence, it was never properly submitted to the States for ratification.
The Eighteenth Amendment has not been ratified by the legislatures of three-fourths of the States. Of the forty-five States which have purported to ratify it, one of them, Ohio, has rejected the Amendment by popular vote; and in twelve others petitions for a referendum with respect to the Amendment have been presented, but have not yet been submitted to the electorate. In these States the people have reserved the right to make themselves a part of the “legislature.”
The Eighteenth Amendment, like
Argument for Appellant in No. 788.
Mr. Root for the appellant in No. 788:
I. The substantive and operative part of the so-called Eighteenth Amendment is contained in its first section. This provision does not relate to the powers or organization of government, as does an ordinary constitutional
To uphold such a power of amendment would do violence to what Hamilton (Federalist, No. 22, p. 135, Ford‘s ed.) described as “the fundamental maxim of republican government ... which requires that the sense of the majority should prevail.” If the so-called Eighteenth Amendment be a valid part of the Constitution, its repeal can hereafter be perpetually prevented by a minority, for if but one State more than one-fourth of the States refuse to assent thereto, it is irrepealable. The census of 1910 discloses that there are in the Union thirteen States whose aggregate population does not equal five per cent. of the entire population of the United States. Consequently, however vast the majority of the population in the future may be who are persuaded by experience that this direct legislative regulation of their lives and personal habits was or has become unwise and unnecessary, they will be helpless to change the law if there be dissent on the part of a minority representing only five per cent. of the population or perhaps less.
There is plainly a distinction in this respect between the so-called amendment as adopted and as it would be if it had conferred power upon Congress to prohibit the use of intoxicating liquors. An amendment in the latter form would, it is true, be precisely as irrepealable as the one here in question, but the conduct of individual life thereunder would at all times be within the control of representatives of the majority of the people. Congress would then have the power to prohibit intoxicants or not, completely or qualifiedly, as it from time to time deemed
This fundamental consideration differentiates sharply the Eighteenth Amendment from the Thirteenth Amendment, to which the Eighteenth bears a superficial resemblance. As is now universally conceded, slavery was the creation of positive law, and it was always unauthorized unless some exercise of government permitted it. A constitutional declaration that slavery was prohibited, would, therefore, in substance, be only the withdrawal from every governmental authority of the power to license or permit involuntary servitude. That amendment, consequently, only affected the powers of government, and did not constitute, as does the so-called Eighteenth Amendment, a direct legislative exercise of those powers.
It does not advance the discussion to urge that the people can adopt any amendment to the Constitution they see fit. No doubt an amendment of any sort could be adopted by the same means as were employed in the adoption of the Constitution itself. In that manner alone do or can the people themselves act. But the amending authorities provided for in
Ratification by state legislatures does not as matter of fact provide an opportunity for the people to express their will regarding the proposed Eighteenth Amendment as the calling of conventions might have done. Thus, for example, the Missouri legislature ratified it, notwithstanding an express provision of the
If, as contended by the defendants, the power of amendment vested in Congress and three-fourths of the state legislatures be absolute and unrestricted, then there would be no limitation whatever upon their legislative authority. They could then by amendment establish a state religion, or oppress or discriminate against any denomination, or authorize the taking away of life, liberty and property, without due process of law, etc., etc. This would destroy the most essential limitation upon power under the American system of government, which is that the rights of the individual citizen shall be protected by withholding from the legislative function the power to do certain things inconsistent with individual liberty. This was the reason of the irresistible demand for the first ten amendments.
When the Federal Constitution was adopted, the people of practically every State had limited by bills of rights their own governments in their own States, which were composed of men elected by themselves. We are not at liberty to assume that in and by
The so-called Eighteenth Amendment directly invades the police powers of the States and directly encroaches upon their right of local self-government. If this amendment be valid, then any amendment which directly impairs the police powers of the States and absolutely withdraws from them their right to local self-government in any important particular, heretofore indisputably a matter of internal concern, must likewise be valid. In other words, if the so-called Eighteenth Amendment be lawful, then the States are not in truth indestructible. It must be manifest that the precedent necessarily erected by a holding that the Eighteenth Amendment is constitutional, would authorize the complete subversion of our dual and federal system of government. It is submitted that the authority conferred in
The Civil War amendments afford no justification for the Eighteenth Amendment. Their primary purpose was to crystallize into the Constitution some of the essentials of a free republican government, and it was expressly made the constitutional duty of the Federal Government to guarantee to the States such a form of government. This federal duty the Civil War amendments helped to realize; and the fact that, as an incident and indirectly, they interfered to some extent with the States is of no consequence. They are not like the Eighteenth Amendment, which is germane to no original federal duty, and which directly, primarily and deliberately invades the right of the States to govern themselves.1
Mr. Guthrie for the appellant in No. 788:
The correct construction of § 2 of the Eighteenth Amendment required the concurrence of the State of New Jersey in any legislation of Congress regulating internal or intrastate commerce in intoxicating liquors, and conversely required the concurrence of Congress in any legislation of the State regulating interstate or foreign commerce in intoxicating liquors; but that section did not impair or qualify the existing reserved power of the several States independently to regulate their own internal or intrastate commerce or the existing power of
Id. at 701, 705; Rathbone v. Wirth, 150 N. Y. 459, 470, 483-4; Calder v. Bull, 3 Dall. 386, 388; Loan Association v. Topeka, 20 Wall. 655, 662-3; Veazie Bank v. Fenno, 8 Wall. 533, 541; Id. at 125, 127; Downes v. Bidwell, 182 U. S. 244, 290-1; Id.; Matter of Fraser v. Brown, 203 N. Y. 136, 143; Keller v. United States, 213 U. S. 138, 148; Colon v. Lisk, 153 N. Y. 188, 194; Brown v. Maryland, 12 Wheat. 419, 439; Civil Rights Cases, 109 U. S. 3, 11-15, 19, 20; In re Rahrer, 140 U. S. 545, 554-6; Matter of Heff, 197 U. S. 488, 505; South Carolina v. United States, 199 U. S. 437, 448, 451, 453-4; Id.; License Cases, 5 How. 504, 583, 628; Noble State Bank v. Haskell, 219 U. S. 104, 111; Sligh v. Kirkwood, 237 U. S. 52, 59; Ives v. South Buffalo R. Co., 201 N. Y. 271, 300; Patterson v. Kentucky, 97 U. S. 501, 503; Id. at 659, 667; Ex parte Rowe, 4 Ala. App. 254; Stone v. Mississippi, 101 U. S. 814, 819-20; N. Y. & N. E. R. R. Co. v. Bristol, 151 U. S. 556, 567; Atlantic Coast Line R. R. Co. v. Goldsboro, 232 U. S. 548, 558; 2 Hare on American Constitutional Law, p. 766; Cooley on Constitutional Limitations (7th ed.), pp. 101-2, 243, 263; Dartmouth College v. Woodward, 4 Wheat. 518, 629; Id.; Ex parte Bain, 121 U. S. 1, 12; Story on the Constitution, § 1908; Slaughter-House Cases, 16 Wall. 36, 67, 68, 70-1, 77-8; Northern Securities Co. v. United States, 193 U. S. 197, 348; Kentucky v. Dennison, 24 How. 66, 107; Guinn v. United States, 238 U. S. 347, 362; United States v. Railroad Co., 17 Wall. 322, 327; Pollock v. Farmers’ Loan & Tr. Co., 157 U. S. 429, 584; Congressional Globe, 38th Cong., 1st sess., p. 2985; Elliot‘s Debates, vol. II, pp. 304, 309; vol. IV, pp. 53, 58; 2 Curtis on the Constitutional History of the United States, pp. 160-1; Miller on the Constitution, pp. 24, 412; 1 Tucker on the Con-
The prohibition contained in § 1 of the Amendment is self-executing. Civil Rights Cases, 109 U. S. 3, 20. If the Amendment contained no grant of power of enforcement, Congress would have complete power to enforce the prohibition as it saw fit in interstate or foreign commerce or domestically in the District of Columbia, etc., and the States would have power to enforce it within their respective jurisdictions as to their intrastate or internal commerce. But Congress then would have no power under the Constitution to legislate in respect of the internal commerce of a State even with its consent and a State could not constitutionally legislate in respect of interstate or foreign commerce without the assent or concurrence of Congress. The second section of the Amendment granted to Congress the additional or supplemental power to authorize federal officers to enter the States and apply and enforce the sanctions of federal or state legislation in respect of their internal affairs provided the State concurred in such legislation, and it granted to the respective States the power to apply and enforce their legislation or the legislation of Congress against interstate and foreign
stitution, pp. 323-4; United States v. Cruikshank, 92 U. S. 542, 552, 554, 555; Wilkinson v. Leland, 2 Pet. 627, 647, 657; State v. Keith, 63 N. C. 140, 144; Eason v. State, 11 Ark. 481, 491; Coyle v. Oklahoma, 221 U. S. 559, 580; 2 Madison‘s Notes (Farrand), pp. 629-31; Maxwell v. Dow, 176 U. S. 581, 601-2; State v. St. Louis & S. W. Ry. Co., 197 S. W. 1012, 1013 (Tex.); Alexander v. People, 7 Colo. 155, 167; Federalist (Ford‘s ed.), Nos. 39 and 43, pp. 251, 291-2; Spies v. Illinois, 123 U. S. 131, 161; Barron v. Baltimore, 7 Pet. 243, 250; Minn. & St. Louis R. R. v. Bombolis, 241 U. S. 211, 217; Barbier v. Connolly, 113 U. S. 27, 31; Bartemeyer v. Iowa, 18 Wall. 129, 138; Id. at 663; In re Kemmler, 136 U. S. 436, 448, 449; Stewart v. Kahn, 11 Wall. 493, 507; Dred Scott v. Sandford, 19 How. 393; Cong. Globe, 39th Congress, 1st sess., pt. 3, p. 2766; id., pt. 4, p. 2961.
This construction would give reasonable scope and effect to
Section 1 shows that the controlling thought of Congress was to secure national prohibition; and § 2 shows a purpose to commend this main proposal to the States for their acceptance by assuring them of the least possible interference with their police powers. This would tend to secure ratification when a proposition to surrender or abdicate their police powers would probably have been rejected. The question, therefore, upon which state legislatures voted was, Shall there be national prohibition without loss of state control over local affairs? The construction now urged by the Government, however, would result practically in complete loss of state control. Disguise it as they may, the learned counsel for the Government ask the court to give no practical effect whatever to the clause which was the inducement to the States to ratify the proposed prohibition Amendment.
The history of the proposed Amendment in the Sixty-fifth Congress should be traced and the following facts emphasized, namely, that both houses rejected the form originally proposed which vested power in “the Congress and the several States independently or concurrently to
Ordinary definitions of the adjective “concurrent” show its current meaning to be “concurring or acting in conjunction; agreeing in the same act, contributing to the same event or effect; operating with; coincident” (Century Dictionary). See also Webster and Standard Dictionaries. The exact meaning can be determined by a consideration of the subject-matter, probable purpose and context. Cherokee Nation v. Georgia, 5 Pet. 1, 19; 1 Story on the Constitution, § 455; Wedding v. Meyler, 192 U. S. 573, 584; In re Mattson, 69 Fed. Rep. 535, 542; Ex parte Desjeiro, 152 Fed. Rep. 1004, 1007; Nielsen v. Oregon, 212 U. S. 315.
For thirty years prior to the framing of the Eighteenth Amendment there had been a public movement and tendency to secure coöperation, that is, concurrence,
The Eighteenth Amendment, therefore, embodied in a permanent constitutional provision a principle that had
The principal ground upon which the supremacy of the
The clause vesting concurrent power cannot mean one thing as applied to the action of the several States, and quite another and different thing when applied to the action of Congress. It cannot mean that if there be conflict, the action of Congress must control, for that would plainly be to say that the power of the States was not concurrent, but subordinate, and, in practical effect, no power at all. Wedding v. Meyler, 192 U. S. 573, 584; Nielsen v. Oregon, 212 U. S. 315; In re Mattson, 69 Fed. Rep. 535, 542; Ex parte Desjeiro, 152 Fed. Rep. 1004, 1007; Houston v. Moore, 5 Wheat. 1, 22; Passenger Cases, 7 How. 282,
It is not contended by the appellant that Congress and the several States must adopt identical or practically identical enforcement measures, or that any enforcement act adopted by one must be wholly inoperative if not adopted by the other. But it is assumed that no unnecessary fundamental change in the federal system and its controlling and vivifying spirit was intended or contemplated, that the Nation and the State were to continue supreme and independent each within its own historic and constitutional sphere, that no undue interference of one with the other was intended, and that additional or supplemental power was being granted to both, which would authorize each to enter the sphere of the other provided the latter concurred; in other words, coöperated by concurring.
The appellant further contends that Title II of the
It is conceded of record by the Government and not challenged in its argument that the definition contained in
The power of Congress in peace times to enforce the specific prohibition of intoxicating liquors is not as broad and comprehensive as the police powers of the States.
Incidental power to enforce a grant of power to Congress cannot be used to enlarge and expand the grant itself—particularly when to allow it would impinge upon the reserved powers of the States. Civil Rights Cases, 109 U. S. 3. The mere fact that the prohibition of non-intoxicating beverages may in the judgment of Congress tend to aid and render more effective the enforcement of prohibition against intoxicating liquors is insufficient. United States v. Dewitt, 9 Wall. 41; Civil Rights Cases, 109 U. S. 3; Hodges v. United States, 203 U. S. 1; Hammer v. Dagenhart, 247 U. S. 251.
The first section of Title II of the
No more objectionable or dangerous doctrine could be imagined than that an enactment, clearly avowed and intended to be a definition of a constitutional term and
It may be proper, in reviewing state legislation which has been upheld by a state court as within the legislative powers of a State, for this court to attribute the intent as found by the state court, and not at all permissible to attribute an intent not expressed in the case of a provision in an act of Congress purporting on its face solely to be a definition and passed in the exercise of a distinctly limited power of legislation—as here limited to intoxicating liquors. Congress is always exercising delegated, limited, circumscribed and enumerated powers, and not the broad and elastic police powers of a State.
The
Sixty years of regulation by Congress of the alcoholic content of beverages has demonstrated that adequate provisions for licensing and supervising the production of non-intoxicating malt or vinous liquors at the breweries or places of manufacture, and for licenses, stamps, labels and inspection certificates before shipment, could easily have been framed, as was done in respect of analogous subjects in the
If non-intoxicating beer, ale and porter may be prohibited, and even the use of their names made a criminal offense, because they look like intoxicating liquor, then grape juice, which looks like many kinds of wine, and syruped soda-water, nearly all the varieties of which look like some species of intoxicating liquors, may also be prohibited. It may be properly mentioned in this connection as a reductio ad absurdum that water looks like gin! It seems to be urged that it is merely a question of degree of regulation, and that the court ought not to override the judgment of Congress on any question of degree in the exercise of its constitutional powers. But the court is constantly called upon to determine just such questions of degree.
The case of Purity Extract Co. v. Lynch, 226 U. S. 192, principally relied on by the Government, is readily distinguishable if it be borne in mind that the state legislation then in question was enacted in the exercise of the unlimited police power of the State and that the legislation had been sustained by the highest court of the State as not prohibited by the state constitution.
The definition of intoxicating liquors as those containing one-half of one per cent. or more by volume of alcohol is arbitrary and contrary to conceded facts. This standard of alcoholic content originated for purposes of federal internal revenue taxation in connection with the
The definition of an intoxicating liquor contained in
Mr. Jackman for the appellee in No. 794, advanced the following propositions:
Neither Congress nor the several States have power to define “intoxicating liquor” under the
Congress cannot under the enforcement clause enlarge the express grant of power so as to include beverages non-intoxicating in fact.
The State of Wisconsin having, under the power reserved and granted it by the Amendment, enacted legislation to enforce the prohibition, and not having concurred in the later congressional legislation, the act of Congress cannot be enforced and the state law overridden as to strictly intrastate transactions.
The Amendment is void because (a) it is not an amendment within the meaning of
Messrs. Houts, Fitzsimmons and Crow, for the appellant in No. 837, submitted, on the following main propositions:
The Amendment has not been ratified by three-fourths of the States.
It is invalid as an amendment, leading to the destruction of the system of dual sovereignties, and also as an attempt to exercise ordinary legislative power.
Under
The
Argument of The Solicitor General and Mr. Assistant Attorney General Frierson:
The bills filed by the States of Rhode Island and New Jersey can not be maintained. They seek to enjoin officers of the Federal Government from enforcing criminal laws enacted by Congress. The sole ground upon which the original jurisdiction of this court can be invoked is that they involve controversies between a State and the citizens of other States. The fact that a State assumes to sue and names as defendants citizens of other States is not conclusive that this court must take jurisdiction. The judicial power of the United States over controversies to which a State is a party extends only to those cases “in which a State may, of right, be made a party defendant, as well as in all cases in which a State may, of right, institute a suit in a court of the United States.” United States v. Texas, 143 U. S. 621, 644; Wisconsin v. Pelican Insurance Co., 127 U. S. 265. A State can not invoke judicial action by making the case of its citizens its own and thus suing in vindication of grievances of particular individuals. New Hampshire v. Louisiana, 108 U. S. 76; South Dakota v. North Carolina, 192 U. S. 286; Louisiana v. Texas, 176 U. S. 1, 16, 24-25.
The questions as to whether the
The
The fact that the
No State by any provision of its laws or its constitution can make the ratification of an amendment to the Constitution of the United States by its legislature subject to a referendum vote of the people. The only method of ratification mentioned in the Constitution is through representatives assembled either in the legislature or a convention called for that purpose. It is clearly contemplated that the action of the State in ratifying shall not be by direct vote of the people but by their representatives, and the body, or bodies, who shall be recognized as acting for the States are specifically named. A legislature in ratifying an amendment, therefore, derives its power not from the State or the people of the State but from the people of the United States through the Constitution of the United States. This power can not be abrogated, limited, or restricted by any state statute or constitution, Dodge v. Woolsey, 18 How. 331, 348; McPherson v. Blacker, 146 U. S. 1, 34; Gales and Seaton, Annals of Congress, vol. 1, p. 716; Davis v. Ohio, 241 U. S. 565.
The
In order to enforce, with any degree of efficiency, the
The fact that by the passage of the
The fact that the Amendment does not provide compensation for liquors previously manufactured does not render it invalid.
MR. JUSTICE VAN DEVANTER announced the conclusions of the court.
Power to amend the Constitution was reserved by
“The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legisla-
tures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
The text of the
“Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited.
“Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
We here are concerned with seven cases involving the validity of that Amendment and of certain general features of the National Prohibition Law, known as the
1. The adoption by both houses of Congress, each by a two-thirds vote, of a joint resolution proposing an amendment to the Constitution sufficiently shows that the proposal was deemed necessary by all who voted for it. An express declaration that they regarded it as necessary is not essential. None of the resolutions whereby prior amendments were proposed contained such a declaration.
2. The two-thirds vote in each house which is required in proposing an amendment is a vote of two-thirds of the members present—assuming the presence of a quorum—and not a vote of two-thirds of the entire membership, present and absent. Missouri Pacific Ry. Co. v. Kansas, 248 U. S. 276.
3. The referendum provisions of state constitutions and statutes cannot be applied, consistently with the Constitution of the United States, in the ratification or rejection of amendments to it. Hawke v. Smith, ante, 221.
4. The prohibition of the manufacture, sale, transportation, importation and exportation of intoxicating liquors for beverage purposes, as embodied in the
5. That Amendment, by lawful proposal and ratification, has become a part of the Constitution, and must be respected and given effect the same as other provisions of that instrument.
6. The first section of the Amendment—the one embodying the prohibition—is operative throughout the entire territorial limits of the United States, binds all legislative bodies, courts, public officers and individuals within those limits, and of its own force invalidates every
7. The second section of the Amendment—the one declaring “The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation“—does not enable Congress or the several States to defeat or thwart the prohibition, but only to enforce it by appropriate means.
8. The words “concurrent power” in that section do not mean joint power, or require that legislation thereunder by Congress, to be effective, shall be approved or sanctioned by the several States or any of them; nor do they mean that the power to enforce is divided between Congress and the several States along the lines which separate or distinguish foreign and interstate commerce from intrastate affairs.
9. The power confided to Congress by that section, while not exclusive, is territorially coextensive with the prohibition of the first section, embraces manufacture and other intrastate transactions as well as importation, exportation and interstate traffic, and is in no wise dependent on or affected by action or inaction on the part of the several States or any of them.
10. That power may be exerted against the disposal for beverage purposes of liquors manufactured before the Amendment became effective just as it may be against subsequent manufacture for those purposes. In either case it is a constitutional mandate or prohibition that is being enforced.
11. While recognizing that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement, we think those limits are not transcended by the provision of the
Giving effect to these conclusions, we dispose of the cases as follows:
In Nos. 29 and 30, Original, the bills are dismissed.
In No. 794 the decree is reversed.
In Nos. 696, 752, 788 and 837 the decrees are affirmed.
MR. CHIEF JUSTICE WHITE, concurring.
I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court has deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached.
I appreciate the difficulties which a solution of the cases involves and the solicitude with which the court has approached them, but it seems to my mind that the greater the perplexities the greater the duty devolving upon me to express the reasons which have led me to the conclusion that the Amendment accomplishes and was intended to accomplish the purposes now attributed to it in the propositions concerning that subject which the court has just announced and in which I concur. Primarily, in doing this I notice various contentions made concerning the proper construction of the provisions of the Amendment which I have been unable to accept, in order that by contrast they may add cogency to the statement of the understanding I have of the Amendment.
The Amendment, which is reproduced in the announcement for the court, contains three numbered paragraphs or sections, two of which only need be noticed. The first prohibits “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into,
1. It is contended that the result of these provisions is to require concurrent action of Congress and the States in enforcing the prohibition of the first section and hence that in the absence of such concurrent action by Congress and the States no enforcing legislation can exist, and therefore until this takes place the prohibition of the first section is a dead letter. But in view of the manifest purpose of the first section to apply and make efficacious the prohibition, and of the second, to deal with the methods of carrying out that purpose, I cannot accept this interpretation, since it would result simply in declaring that the provisions of the second section, avowedly enacted to provide means for carrying out the first, must be so interpreted as practically to nullify the first.
2. It is said, conceding that the concurrent power given to Congress and to the States does not as a prerequisite exact the concurrent action of both, it nevertheless contemplates the possibility of action by Congress and by the States and makes each action effective, but, as under the Constitution the authority of Congress in enforcing the Constitution is paramount, when state legislation and congressional action conflict the state legislation yields to the action of Congress as controlling. But as the power of both Congress and the States in this instance is given by the Constitution in one and the same provision, I again find myself unable to accept the view urged, because it ostensibly accepts the constitutional mandate as to the concurrence of the two powers and proceeds immediately by way of interpretation to destroy it by making one paramount over the other.
3. The proposition is that the concurrent powers con-
Comprehensively looking at all these contentions, the confusion and contradiction to which they lead serve in my judgment to make it certain that it cannot possibly be that Congress and the States entered into the great and important business of amending the Constitution in a matter so vitally concerning all the people solely in order to render governmental action impossible, or if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated. It is true, indeed, that the mere words of the second section tend to these results, but if they be read in the light of the cardinal rule which compels a consideration of the context in view of the situation and the subject with which the Amendment dealt and the purpose which it was intended to accomplish, the confusion will be seen to be only apparent.
In the first place, it is undisputable, as I have stated,
Mark the relation of the text to this view, since the power which it gives to State and Nation is, not to construct or perfect or cause the Amendment to be completely operative, but as already made completely operative, to enforce it. Observe also the words of the grant which confine the concurrent power given to legislation appropriate to the purpose of enforcement.
I take it that if the second section of the article did not exist no one would gainsay that the first section in and of itself granted the power and imposed the duty upon Congress to legislate to the end that by definition and sanction the Amendment would become fully operative. This being
Limiting the concurrent power to enforce given by the second section to the purposes which I have attributed to it, that is, to the subjects appropriate to execute the Amendment as defined and sanctioned by Congress, I assume that it will not be denied that the effect of the grant of authority was to confer upon both Congress and the States power to do things which otherwise there would be no right to do. This being true, I submit that no reason exists for saying that a grant of concurrent power to Congress and the States to give effect to, that is, to carry out or enforce, the Amendment as defined and sanctioned by Congress, should be interpreted to deprive Congress of the power to create, by definition and sanction, an enforceable amendment.
MR. JUSTICE MCREYNOLDS, concurring.
I do not dissent from the disposition of these causes as ordered by the court, but confine my concurrence to that. It is impossible now to say with fair certainty what construction should be given to the
MR. JUSTICE MCKENNA, dissenting.
These cases are concerned with the
“Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. “Sec. 2. The Congress and the several States shall have concurrent power to enforce this article by appropriate legislation.”
The court in applying it has dismissed certain of the bills, reversed the decree in one, and affirmed the decrees in four others. I am unable to agree with the judgments reversing No. 794 and affirming Nos. 696, 752, 788 and 837.
I am, however, at a loss how, or to what extent, to express the grounds for this action. The court declares conclusions only, without giving any reasons for them. The instance may be wise—establishing a precedent now, hereafter wisely to be imitated. It will undoubtedly decrease the literature of the court if it does not increase lucidity. However, reasons for the conclusions have been omitted, and my comment upon them may come from a misunderstanding of them, their present import and ultimate purpose and force.
There are, however, clear declarations that the
Conclusions 4, 5 and 6, seem to assert the undisputed. I neither assent to them nor dissent from them except so far as I shall presently express.
Conclusion 7 seems an unnecessary declaration. It may, however, be considered as supplementary to some other declaration. My only comment is that I know of no
Conclusions 8 and 9 as I view them, are complements of each other, and express, with a certain verbal detail, the power of Congress and the States over the liquor traffic, using the word in its comprehensive sense as including the production of liquor, its transportation within the States, its exportation from them, and its importation into them—in a word, give power over the liquor business from producer to consumer and to prescribe the quality of the latter‘s beverage. Certain determining elements are expressed. It is said that the words “concurrent power” of § 2 do not mean joint power in Congress and the States, nor the approval by the States of congressional legislation, nor its dependency upon state action or inaction.
I cannot confidently measure the force of the declarations or the deductions that are or can be made from them. They seem to be regarded as sufficient to impel the conclusion that the
I cannot pause to enumerate the contentions in the case. Some of them present a question of joint action—in Congress and the States, either collectively with all or severally with each. Others assert spheres of the powers, involving no collision, it is said, the powers of Congress and the States being supreme and exclusive within the spheres of their exercise—called by counsel “historical fields of jurisdiction.” I submit again, they should have consideration and decision.
The Government has felt and exhibited the necessity of such consideration and decision. It knows the conflicts that exist or impend. It desires to be able to meet them, silence them and bring the repose that will come from a distinct declaration and delimitation of the powers of Congress and the States. The court, however, thinks otherwise, and I pass to the question in the case. It is a simple one, it involves the meaning of a few English words—in what sense they shall be taken, whether in their ordinary sense, or have put upon them an unusual sense.
Recurring to the first section of the Amendment, it will be seen to be a restriction upon state and congressional power, and the deduction from it is that neither the States nor Congress can enact legislation that contravenes its prohibition. And there is no room for controversy as to its requirement. Its prohibition of “intoxicating liquors” “for beverage purposes” is absolute. And, as accessory to that prohibition, there is the further prohibition of their manufacture, sale or transportation within or their importation into or exportation from “the United States.” Its prohibition, therefore, is National, and, considered alone, the means of its enforcement might be such as Congress, the agency of National power, might
What then is meant by the words “concurrent power“? Do they mean united action, or separate and independent action; and, if the actions differ (there is no practical problem unless they differ), shall that of Congress be supreme?
The Government answers that the words mean separate and independent action, and, in case of conflict, that that of Congress is supreme, and asserts besides, that the answer is sustained by historical and legal precedents.1 I contest the assertions and oppose to them the common usage of our language, and the definitions of our lexicons,
Other definitions assign to the words, “existing or happening at the same time,” “concurring together,” “coexistent.” These definitions are, as the others are, inconsistent with the Government‘s contention. If coexistence of the power of legislation is given to Congress and the States by § 2, it is given to be coexistently exercised. It is to be remembered that the
From my standpoint, the exposition of the case is concluded by the definition of the words of § 2. There are, however, confirming considerations; and militating considerations are urged. Among the confirming considerations are the cases of Wedding v. Meyler, 192 U. S. 573, and Nielsen v. Oregon, 212 U. S. 315, in which “concurrent jurisdiction” was given respectively to Kentucky and Indiana over the Ohio River by the
Those cases are examples of the elemental rule of construction that, in the exposition of statutes and constitutions, every word “is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it,” and there cannot be imposed upon the words “any recondite meaning or any extraordinary gloss.” 1 Story, Const., § 451; Lake County v. Rollins, 130 U. S. 662. And it is the rule of reason as well as of technicality, that if the words so expounded be “plain and clear, and the sense distinct and perfect arising on them” interpretation has nothing to do. This can be asserted of § 2. Its words express no “double sense,” and should be accepted in their single sense. It has not yet been erected into a legal maxim of constitutional construction, that words were made to conceal thoughts. Besides, when we depart from the words, ambiguity comes. There are as many solutions
If it be conceded, however, that to the words “concurrent power” may be ascribed the meaning for which the Government contends, it certainly cannot be asserted that such is their ordinary meaning, and I might leave § 2, and the presumptions that support it, to resist the precedents adduced by the Government. I go farther, however, and deny the precedents. The Federalist and certain cases are cited as such. There is ready explanation of both, and neither supports the Government‘s contention. The dual system of government contemplated by the Union encountered controversies, fears, and jealousies that had to be settled or appeased to achieve union, and the Federalist in good and timely sense explained to what extent the “alienation of State sovereignty” would be necessary to “National sovereignty,” constituted by the “consolidation of the States,” and the powers that would be surrendered, and those that would be retained. And the explanation composed the controversies and allayed the fears of the States that their local powers of government would be displaced by the dominance of a centralized control. And this court, after Union had been achieved, fulfilled the assurances of the explanation and adopted its distribution of powers, designating them as follows: (1) Powers that were exclusive in the States—reserved to them; (2) Powers that were exclusive in Congress, conferred upon it; (3) Powers that were not exclusive in either, and hence said to be “concurrent.” And it was decided that, when exercised by Congress, they were supreme—“The authority of the States then retires” to inaction.
The Government nevertheless contends that the decisions (they need not be cited) constitute precedents for its construction of § 2 of the
This has example in other powers of sovereignty that the States and Congress possess. In McCulloch v. Maryland, at pages 425, 430, Chief Justice Marshall said that the power of taxation retained by the States was not abridged by the granting of a similar power to the Government of the Union, and that it was to be concurrently exercised, and these truths, it was added, had never been denied, and that there was no “clashing sovereignty” from incompatibility of right. And necessarily; a con-
It is, however, suggested (not by the Government) that if Congress is not supreme upon the considerations urged by the Government, it is made supreme by
The
If it be said that the States got no power over prohibition that they did not have before, it cannot be said that the power already possessed was not preserved to them by the Amendment, notwithstanding the policy of prohibition was made national; and besides, there was a gift of power to Congress that it did not have before, a gift of a right to be exercised within state lines, but with the limitation or condition that the powers of the States should remain with the States and be participated in by Congress only in concurrence with the States, and thereby preserved from abuse by either, or exercise to the detriment of prohibition. There was, however, a power given to the States, a power over importations. This power was subject to concurrence with Congress and had the same safeguards.
This construction of § 2 is enforced by other considerations. If the supremacy of Congress had been intended, it would have been directly declared as in the
Section 2 was amended in the House upon recommendation of the Judiciary Committee, and the provision giving concurrent power to Congress and to the States was necessarily estimated and intended to be additive of something. The Government‘s contention makes it practically an addition of nothing but words, in fact denuding it of function, making it a gift of impotence, not one of power to be exercised independently of Congress or concurrently with Congress, or, indeed, at all. Of this there can be no contradiction, for what power is assigned to the States to legislate if the legislation be immediately
There is a suggestion, not made by the Government, though assisting its contention, that § 2 was a gift of equal power to Congress and to the States, not, however, to be concurrently exercised, but to be separately exercised; conferred and to be exercised, is the suggestion, to guard against neglect in either Congress or the States, the inactivity of the one being supplied by the activity of the other. But here again we encounter the word “concurrent” and its inexorable requirement of coincident or united action, not alternative or emergency action to safeguard against the delinquency of Congress or the States. If, however, such neglect was to be apprehended, it is strange that the framers of § 2, with the whole vocabulary of the language to draw upon, selected words that expressed the opposite of what the framers meant. In other words, expressed concurrent action instead of substitute action. I cannot assent. I believe they meant what they said and that they must be taken at their word.
The Government with some consciousness that its contention requires indulgence or excuse, at any rate in recognition of the insufficiency of its contention to satisfy the words of § 2, makes some concessions to the States. They are, however, not very tangible to measurement. They seem to yield a power of legislation to the States
I am not, therefore, disposed to regard the concessions seriously. They confuse; “make no light; but rather darkness visible.” Of what use is a concession of power to the States to enact laws which cannot be enforced? Of what use a concession of jurisdiction to the courts of the States when their judgments cannot be executed, indeed the very law upon which it is exercised may be declared void in an antagonistic jurisdiction exerted in execution of an antagonistic power?1 And equally worthless is the analogy that the Government assays between the power of the National Government and the power of the States to criminally punish violations of their respective sovereignties, as for instance in counterfeiting cases. In such cases the exercises of sovereignty are not in antagonism. Each is inherently possessed and independently exercised, and can be enforced no matter what the other sovereignty may do or abstain from doing. On the other hand, under the Government‘s construction of § 2, the legislation of Congress is supreme and exclusive. Whatever the States may do is abortive of effect.
The Government, seeking relief from the perturbation of mind and opinions produced by departure from the words of § 2, suggests a modification of its contention that in case of conflict between state legislation and congres-
From these premises the deduction seems inevitable that there must be united action between the States and Congress, or, at any rate, concordant and harmonious action; and will not such action promote better the purpose of the Amendment—will it not bring to the enforcement of prohibition the power of the States and the power of
It is, however, urged that to require such concurrence is to practically nullify the prohibition of the Amendment, for without legislation its prohibition would be ineffectual; and that it is impossible to secure the concurrence of Congress and the States in legislation. I cannot assent to the propositions. The conviction of the evils of intemperance—the eager and ardent sentiment that impelled the Amendment, will impel its execution through Congress and the States. It may not be in such legislation as the
I am, I think, therefore, justified in my dissent. I am alone in the grounds of it, but, in relief of the solitude of my position, I invoke the coincidence of my views with
MR. JUSTICE CLARKE, dissenting.
I concur in the first seven paragraphs and in the tenth paragraph of the announced “conclusions” of the court, but I dissent from the remaining three paragraphs.
The eighth, ninth and eleventh paragraphs, taken together, in effect, declare the
Such a result, in my judgment, can be arrived at only by reading out of the second section of the
This rule was first announced in 1824 in Gibbons v. Ogden, 9 Wheat. 1; it was applied with emphasis in 1840 in Holmes v. Jennison, 14 Pet. 540, 570; and in the recent case of Knowlton v. Moore, 178 U. S. 41, it is referred to as an elementary canon of constitutional construction.
The authoritative dictionaries, general and law, and the decided cases, agree, that “concurrent” means “joint and equal authority“, “running together, having the same
Such a construction should not be given the Amendment if it can reasonably be avoided, as it very clearly may be, I think, with a resultant giving of a large and beneficent effect to the grant, as it is written. Giving to the word “concurrent” its usual and authoritative meaning, would result in congressional legislation under this grant of power being effective within the boundaries of any State only when concurred in by action of Congress and of such State, which, however, could readily be accomplished by the approval by either of the legislation of the other or by the adoption of identical legislation by both. Such legislation would be concurrent in fact and in law and could be enforced by the courts and officers of either the Nation or the State, thereby insuring a more general and satisfactory observance of it than could possibly be obtained by the federal authorities alone. It would, to a great extent, relieve Congress of the burden and the general government of the odium to be derived from the antagonism which would certainly spring from enforcing, within States, federal laws which must touch the daily life of the people very intimately and often very irritatingly.
By
Under this construction, which I think should be given the Amendment, there would be large scope also for its operation even in States which might refuse to concur in congressional legislation for its enforcement. In my judgment, the law in such a State would be as if no special grant of concurrent power for the enforcement of the first section had been made in the second section, but, nevertheless, the first section, prohibiting the manufacture, sale, transportation, importation or exportation, of intoxicating liquors for beverage purposes, would be the supreme law of the land within the non-concurring States and they would be powerless to license, tax, or otherwise recognize as lawful anything violating that section, so that any state law in form attempting such recognition would be unconstitutional and void. Congress would have full power under the interstate commerce clause,
Doubtless such a construction as I am proposing would not satisfy the views of extreme advocates of prohibition or of its opponents, but in my judgment it is required by the salutary rule of constitutional construction referred to, the importance of which cannot be overstated. It is intended to prevent courts from re-writing the Constitution in a form in which judges think it should have been written instead of giving effect to the language actually used in it; and very certainly departures from it will return to plague the authors of them. It does not require the eye of a seer to see contention at the bar of this court against liberal, paramount, congressional definition of intoxicating liquors as strenuous and determined as that which we have witnessed over the strict definition of the
With respect to the 11th conclusion of the court, it is enough to say that it approves as valid a definition of liquor as intoxicating which is expressly admitted not to be intoxicating in each of the cases in which it is considered. This is deemed warranted, I suppose, as legislation appropriate to the enforcement of the first section, and precedent is found for it in prohibition legislation by States. But I cannot agree that the prohibition of the manufacture, sale, etc., of intoxicating liquors in the first section of the
In the Slaughter-House [16 Wall. 36], and other cases, this court was urged to give a construction to the
The cases now before us seem to me to again present questions of like character to, and of not less importance than, those which were presented in those great cases, and I regret profoundly that I cannot share in the disposition which the majority of my associates think should be made of them.
Notes
And again, “It is to be noted that section 2 does not say that legislation shall be concurrent, but that the concurrent power to legislate shall exist. The concurrent power of the States and Congress to legislate is nothing new. And its meaning has been too long settled, historically and judicially, to now admit of question. The term has acquired a fixed meaning through its frequent use by this court and eminent statesmen and writers, in referring to the concurrent power of Congress and the States to legislate.”
And after citing cases, the Government says: “It will thus be seen that in legal nomenclature the concurrent power of the States and of Congress is clearly and unmistakably defined. It simply means the right of each to act with respect to a particular subject-matter separately and independently.”
Definitions of the dictionaries are as follows: The Century: “Concurrent: **2. Concurring, or acting in conjunction; agreeing in the same act; contributing to the same event or effect; operating with; coincident. 3. Conjoint; joint; concomitant; coördinate; combined.** That which concurs; a joint or contributory thing.” Webster‘s first definition is the same as that of the Century. The second is as follows: “Conjoint; associate; concomitant; existing or happening at the same time.” The Government feels the inconsistency of its concessions and recessions. It asserts at one instant that the legislation of the States may be enforced in their courts, but in the next instant asserts that the conviction or acquittal of an offender there will not bar his prosecution in the federal courts for the same act as a violation of the federal law. From this situation the Government hopes that there will be rescue by giving the Eighteenth Amendment “such a meaning that a prosecution in the courts of one government may be held to bar a prosecution for the same offense in the courts of the other.” The Government considers, however, the question is not now presented.