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(40 Sup.Ct.) governments, and intimately concerning the controlling. But as the power of both Conwelfare of the whole people, the court has gress and the states in this instance is given deemed it proper to state only ultimate con- by the Constitution in one and the same pro clusions without an exposition of the rea- vision, I again find myself unable to accept soning by which they have been reached. the view urged because it ostensibly accepts

I appreciate the difficulties which a solu- the constitutional mandate as to the concurtion of the cases involve and the solicitude rence of the two powers and proceeds immewith which the court has approached them, diately by way of interpretation to destroy but it seems to my mind that the greater the it by making one paramount over the other. perplexities the greater the duty devolving 3. The proposition is that the concurrent upon me to express the reasons which have led me to the conclusion that the amendment powers con*ferred upon Congress and the accomplishes and was intended to accomplish states are not subject to conflict because their the purposes now attributed to it in the exertion is authorized within different areas, propositions concerning that subject which that is, by Congress within the field of federal the court has just announced and in which I authority, and by the states within the concur. Primarily in doing this I notice sphere of state power, hence leaving the various contentions made concerning the states free within their jurisdiction to deterproper construction of the provisions of the mine separately for themselves what, within amendment which I have been unable to reasonable limits, is an intoxicating liquor, accept, in order that by contrast they may and to Congress the same right within the add cogency to the statement of the under sphere of its jurisdiction. But the unsoundstanding I have of the amendment.

ness of this more plausible contention seems The amendment, which is reproduced in to me at once exposed by directing attention the announcement for the court, contains to the fact that in a case where no state three numbered paragraphs or sections, two legislation was enacted there would be no of which only need be noticed. The first prohibition, thus again frustrating the first prohibits

section by a construction affixed to the sec

ond. It is no answer to suggest that a reg“the manufacture, sale, or transportation of ulation by Congress would in such event be intoxicating liquors within, the importation operative in such a state, since the basis of thereof into, *or the exportation thereof from the distinction upon which the argument the United States and all territory subject to rests is that the concurrent power conferred the jurisdiction thereof for beverage purposes." upon Congress is confined to the area of its

jurisdiction and therefore is not operative The second is as follows:

within a state. "Sec. 2. The Congress and the several states Comprehensively looking at all these conshall have concurrent power to enforce this tentions, the confusion and contradiction to article by appropriate legislation."

which they lead, serve in my judgment to

make it certain that it cannot possibly be 1. It is contended that the result of these that Congress and the states entered into the provisions is to require concurrent action of great and important business of amending the Congress and the states in enforcing the pro- Constitution in a matter so vitally concerning hibition of the first section and hence that in all the people solely in order to render govthe absence of such concurrent action by Con- ernmental action impossible, or, if possible, gress and the states no enforcing legislation to so detine and limit it as to cause it to be can exist, and therefore until this takes place productive of no results and to frustrate the the prohibition of the first section is a dead obvious intent and general purpose contemletter. But in view of the manifest purpose of plated. It is true indeed that the mere words the first section to apply and make efficacious of the second section tend to these results, the prohibition, and of the second to deal but if they be read in the light of the cardinal with the methods of carrying out that pur- rule which compels a consideration of the pose, I cannot accept this interpretation, since context in view of the situation and the subit would result simply in declaring that the ject with which the amendment dealt and the provisions of the second section, avowedly en- purpose which it was intended to accomplish, acted to provide means for carrying out the the confusion will be seen to be only apfirst, must be so interpreted as to practically

parent. nullify the first.

In the first place, it is indisputable, as I 2. It is said, conceding that the concurrent power given to Congress and to the states have stated, *that the first section imposes a does not as a prerequisite exact the concur- general prohibition which it was the purpose rent action of both, it nevertheless contem- to make universally and uniformly operative plates the possibility of action by Congress and efficacious. In the second place, as the and by the states and makes each action ef- prohibition did not define the intoxica ting fective, but as under the Constitution the au- beverages which it prohibited, in the absence thority of Congress in enforcing the Consti- of anything to the contrary, it clearly, from tution is paramount, when state legislation the very fact of its adoption, cast upon Conand congressional action conflict the state gress the duty, not only of defining the prolegislation yields to the action of Congress as hibited beverages, but also of enacting such

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regulations and sanctions as were essential | Amendment. Because of the bewilderment to make them operative when defined. In the which it creates, a multitude of questions will third place, when the second section is con- inevitably arise and demand solution here. sidered with these truths in mind it becomes In the circumstances I prefer to remain free clear that it simply manifests a like purpose to consider these questions when they arrive. to adjust, as far as possible, the exercise of

Mr. Justice MCKENNA, dissenting. the new powers cast upon Congress by the

This case is concerned with the Eighteenth amendment to the dual system of government

Amendment of the Constitution of the Unitexisting under the Constitution. In other words, dealing with the new prohibition cre

ed States, its validity and construction. In

order to have it, and its scope in attention, ated by the Constitution, operating through

I quote it: out the length and breadth of the United States, without reference to state lines or the

*"Section 1. After one year from the ratificadistinctions between state and federal power, tion of this article the manufacture, sale, or and contemplating the exercise by Congress transportation of intoxicating liquors within, of the duty cast upon it to make the prohibi- the importation thereof into, or the exportation tion efficacious, it was sought by the second thereof from the United States and all terri. section to unite national and state adminis. tory subject to the jurisdiction thereof for bertrative agencies in giving effect to the amend- erage purposes is hereby prohibited. ment and the legislation of Congress enacted shall have concurrent power to enforce this ar.

“Sec. 2. The Congress and the several states to make it completely operative.

ticle by appropriate legislation." Mark the relation of the text to this view, since the power which it gives to state and The court in applying it has dismissed nation is, not to construct or perfect or cause certain of the bills, reversed the decree in the amendment to be completely operative, one, and affirmed the decrees in four others. but as already made completely operative, to I am unable to agree with the judgment reenforce it. Observe also the words of the versing No. 794 and aflirming Nos. 752, 696, grant which confines the concurrent power | 788, and 837. given to legislation appropriate to the pur- I am, however, at a loss how or to what pose of enforcement.

extent to express the grounds for this action. I take it that if the second section of the The court declares conclusions only, without article did not exist no one would gainsay giving any reasons for them. The instance that the first section in and of itself granted may be wise-establishing a precedent now, the power and imposed the duty upon Con- hereafter wisely to be imitated. It will ungress to legislate to the end that by definition doubtedly decrease the literature of the court and sanction the amendment would become if it does not increase its lucidity. However,

reasons for the conclusions have been omitfully operative. This being *true it would ted, and my comment upon them may come follow, if the contentions under consideration from a misunderstanding of them, their preswere sustained, that the second section gave ent import and ultimate purpose and force. the states the power to nullify the first sec- There are, however, clear declarations tion, since a refusal of a state to define and that the Eighteenth Amendment is part of sanction would again result in no amendment the Constitution of the United States, made to be enforced in such refusing state.

so in observance of the prescribed constituLimiting the concurrent power to enforce tional procedure, and has become part of the given by the second section to the purposes Constitution of the United States, to be rewhich I have attributed to it, that is, to the spected and given effect like other provisions subjects appropriate to execute the amend of that instrument. With these conclusions I ment as defined and sanctioned by Congress, I

agree. assume that it will not be denied that the

Conclusions 4, 5, and 6 seem to assert the effect of the grant of authority was to confer undisputed. I neither assent to them or disupon both Congress and the states power to sent from them except so far as I shall presdo things which otherwise there would be no entiy express. right to do. This being true, I submit that Conclusion 7 seems an unnecessary declano reason exists for saying that a grant of ration. It may, however, be considered as concurrent power to Congress and the states supplementary to some other declaration. to give effect to, that is, to carry out or enforce, the amendment as defined and sanc- My only comment is that I know of no *intitioned by Congress, should be interpreted to mation in the case that section 2 in conferdeprive Congress of the power to create, by ring concurrent power on Congress and the definition and sanction, enforceable states to enforce the prohibition of the first amendment.

section, conferred a power to defeat or ob

struct prohibition. Of course, the power Mr. Justice McREYNOLDS concurring. was conferred as a means to enforce the

I do not dissent from the disposition of prohibition and was made concurrent to enthese causes as ordered by the court, but con- gage the resources and instrumentalities of fine my concurrence to that. It is impossible the nation and the states. The power was now to say with fair certainty what construc- conferred for use, not for abuse. tion should be given to the Eighteenth Conclusions 8 and 9, as I view them, are

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(40 Sup.Ct.) complements of each other, and express, with ment, it will be seen to be a restriction upon a certain verbal detail, the power of Con- state and congressional power, and the degress and the states over the liquor traffic, duction from it is that neither the states nor using the word in its comprehensive sense Congress can enact legislation that contraas including the production of liquor, its venes its prohibition. And there is no room transportation within the states, its exporta- for controversy as to its requirement. Its tion from them, and its importation into prohibition of "intoxicating liquors" "for them. In a word, give power over the liq- beverage purposes" is absolute. And, as acuor business from producer to consumer, cessory to that prohibition, is the further proprescribe the quality of latter's beverage. hibition of their manufacture, sale or transCertain determining elements are expressed. portation within or their importation into or It is said that the words "concurrent power" exportation "from the United States.” Its of section 2 do not mean joint power in Con- prohibition, therefore, is national, and congress and the states, nor the approval by the sidered alone, the means of its enforcement states of congressional legislation, nor its de might be such as Congress, the agency of pendency upon state action or inaction.

I cannot confidently measure the force of national power might *prescribe. But it does the declarations or the deductions that are, not stand alone. Section 2 associates Conor can be made from them. They seem to be gress and the states in power to enforce it. regarded as sufficient to impel the conclu- Its words are: sion that the Volstead Act is legal legislation "The Congress and the several states shall and operative throughout the United States. have concurrent power to enforce this article But are there no opposing considerations, no

by appropriate legislation." conditions upon its operation? And what of What, then, is meant by the words "conconflicts, and there are conflicts, and more current power”? Do they mean united acthere may be, between it and state legislation, or separate and independent action, tion? The conclusions of the court do not an- and, if the actions differ (there is no practiswer the questions and yet they are submit. cal problem unless they differ), shall that of ted for decision; and their importance ap- Congress be supreme? peals for judgment upon them. It is to be re

The government answers that the words membered states are litigants as well as pri- mean separate and independent action, and, vate citizens, the former presenting the rights in case of conflict, that of Congress is suof the states, the latter seeking protection preme, and asserts besides, that the answer against the asserted aggression of the act in is sustained by historical and legal prececontroversy. And there is opposing state dents. I contest the assertions and oppose

to them the common usage of our language, legislation, why not a deci*sion upon it? Is

*397 it on account of the nature of the actions be- and the definitions of our lexicons, *general ing civil and in equity, the proper forum be- and legal.2 Some of the definitions assign to ing a criminal court investigating a criminal

1 The following is the contention of the governcharge? There should be some way to avert ment which we give to accurately represent it: the necessity or odium of either.

"It is true that the word 'concurrent' has various I cannot pause to enumerate the conten- meanings, according to the connection in which it is tions in the case. Some of them present a

used. It may undoubtedly be used to indicate that

something is to be accomplished by two or more question of joint action in Congress and the persons acting together. It is equally true that states, either collectively with all or several- it means, in other connections, a right which two ly with each. Others assert spheres of the or more persons, acting separately and apart from

each other, may exercise at the same time, powers, involving no collision, it is said, the would be idle, however, to go into all the meanpowers of Congress and the states being su- ings which may attach to this word. In certain preme and exclusive within the spheres of connections, it has a well-fixed and established their exercise called by counsel "historical meaning, which is controlled in this case."

And again: “It is to be noted that section 2 does fields of jurisdiction." I submit again, they not say that legislation shall be concurrent, but should have consideration and decision. that concurrent power to legislate shall exist. The The government has felt and exhibited the concurrent power of the states and Congress to

And its meaning has been necessity of such consideration and decision. too long settled, historically and judicially, to now

legislate is nothing new. It knows the conflicts that exist or impend. admit of question. The term has acquired a fixed It desires to be able to meet them, silence meaning through its frequent use by this court them and bring the repose that will come

and eminent statesmen and writers in referring to

the concurrent power of Congress and the states to from a distinct declaration and delimitation legislate.” of the power of Congress and the states. The And after citing cases, the government says: “It court, however, thinks otherwise and I pass concurrent power of the states and of Congress is

will thus be seen that in legal nomenclature the to the question in the case. It is simple clearly and unmistakably defined. It simply means one, it involves the meaning of a few English the right of each to act with respect to a particular words-in what sense they shall be taken, subject-matter separately and independently." whether in their ordinary sense, or have put

: Definitions of the dictionaries are as follows:

The Century: "Concurrent: • 2. Concurring; upon them an unusual sense.

acting in conjunction; agreeing in the same act; Recurring to the first section of the amend contributing to the same event or effect; operat

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the words "concurrent power" action in con- , rule of construction that in the exposition of junction, contribution of effort, certainly har-statutes and constitutions, every word "is mony of action, not antagonism. Opposing to be expounded in its plain, obvious, and laws are not concurring laws, and to assert common sense, unless the context furnishes the supremacy of one over the other is to as- some ground to control, qualify or enlarge sert the exclusiveness of one over the other, it," and there cannot be imposed upon the not their concomitance. Such is the result of words “any recondite meaning or any extraorthe government's contention. It does not dinary gloss.” 1 Story, Const. § 451; Lake satisfy the definitions, or the requirement of County v. Rollins, 130 U. S. 662, 9 Sup. Ct. section 2—"a concurrent power excludes the 651, 32 L. Ed. 1060. And it is the rule of idea of a dependent power." Mr. Justice reason as well as of technicality, that if the McLean in the Passenger Cases, 7 How. 283, words so expounded be “plain and clear, and 399, 12 L. Ed. 702.

the sense distinct and perfect arising on Other definitions assign to the words "ex-' them" interpretation has nothing to do. This isting or happening at the same time," "con- can be asserted of section 2. Its words excurring together," "coexistent." These defi- press no “double sense," and should be acnitions are, as the others are, inconsistent cepted in their single sense. It has not yet with the government's contention. If co- been erected into a legal maxim of constituexistence of the power of legislation is given tional construction, that words were made to to Congress and the states by section 2, it is conceal thoughts. Besides, when we depart given to be coexistently exercised. It is to from the words, ambiguity comes. There are be remembered that the Eighteenth Amendment was intended to deal with a condition, as many solutions *as there are minds connot a theory, and one demanding something sidering the section, and out of the conflict, more than exhortation and precept. The

I had almost said chaos, one despairs of habits of a people were to be changed, large finding an undisputed meaning. It may be business interests were to be disturbed, and said that the court, realizing this, by a decit was considered that the change and dis- laration of conclusions only, has escaped the turbance could only be effected by punitive expression of antithetical views and considand repressive legislation, and it was natural- ered it better not to blaze the trails, though ly thought that legislation enacted by “the it was believed that they all led to the same Congress and the several states,” by its con- destination. currence would better enforce prohibition

If it be conceded, however, that to the and avail for its enforcement the two great words "concurrent power” may be ascribed

the meaning for which the government condivisions of our governmental system, *the tends, it certainly cannot be asserted that nation and the states, with their influences such is their ordinary meaning, and I might and instrumentalities.

leave section 2, and the presumptions that From my standpoint, the exposition of the support it, to resist the precedents adduced case is concluded by the definition of the by the government. I go farther, however, words of section 2. There are, however, con- and deny the precedents. The Federalist and firming considerations; and militating con

certain cases are cited as such. There is siderations are urged. Among the confirming considerations are the cases of Wedding v. ready explanation of both, and neither sup Meyler, 192 U. S. 573, 24 Sup. Ct. 322, 48 L ports the government's contention. The dual Ed. 570, 66 L. R. A. 833, and Nielsen v. Ore system of government contemplated by the gon, 212 U. S. 315, 29 Sup. Ct. 383, 53 L. Ed. Union encountered controversies, fears, and 528, in which “concurrent jurisdiction” was jealousies that had to be settled or appeased given respectively to Kentucky and Indiana to achieve union, and the Federalist in good over the Ohio river by the Virginia Compact, and timely sense explained to what extent and respectively to Washington and Oregon the “alienation of state sovereignty” would over the Columbia river by act of Congress.

be necessary to "national sovereignty," conAnd it was decided that it conferred equali- stituted by the "consolidation of the states," ty of powers, "legislative, judicial and exec

and the powers that would be surrendered, utive," and that neither state could over

and those that would be retained. And the ride the legislation of the other. Other

explanation composed the controversies and courts have given like definitions. 2 Words allayed the fears of the states that their and Phrases Judicially Defined, p. 1391 et local powers of government would not be seq.; Bouvier's Dictionary, vol. 1, page 579. displaced by the dominance of a centralized Analogy of the word "concurrent” in private control. And this court after union had been instruments may also be invoked.

achieved, fulfilled the assurances of the ex. Those cases are examples of the elemental planation and adopted its distribution of

powers, designating them as follows: (1) ing with; coincident. 3. Conjoint; joint; concom- Powers that were exclusive in the states-re itant; coordinate; combined.

which served to them; (2) powers that were exclu. concurs; a joint or contributory thing." first definition is the same as that of the Century. sive in Congress, conferred upon it; (3) pow. The second is as follows: "Joint; associate; con- ers that were not exclusive in either, and comitant; existing or happening at the same time.” ' hence said to be "concurrent." And it was

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Webster's

(40 Sup.Ct.) decided that, when exercised by Congress, , ment, it is made supreme by article 6 of they were supreme “the authority of the the Constitution. The article is not ap*400

plicable. It is not a declaration of the sustates then retires" to inaction. To understand them, it must be especially observed premacy of one provision of the Constitution

or laws of the United States over another, that their emphasis was, as the fundamental but of the supremacy of the Constitution and principle of the new government was, that laws of the United States over the Constiit had no powers that were not conferred tutions and laws of the states. Gibbons v. upon it, and that all other powers were re Ogden, 9 Wheat. 1, 209, 6 L. Ed. 23, 211; Sec. served to the states. And this necessarily 1838 et seq.; 2 Story, Const., 5th Ed. must not be absent from our minds, whether

The Eighteenth Amendment is part of the construing old provisions of the Constitution Constitution of the United States, therefore or amendments to it or laws passed under of as high sanction as article 6. There seems the amendments.

to be a denial of this, based on article 5. The government nevertheless contends that That article provides that the amendments the decisions (they need not be cited) con proposed by either of the ways there exstitute precedents for its construction of

pressed "shall be valid to all intents and section 2 of the Eighteenth Amendment. In purposes as part of this Constitution.” Some other words, the government contends (or undefinable power is attributed to this in must so contend for its reasoning must bear | connection with article 6, as if article 5 the test of the generalization) that it was de- limits in some way, or defeats, an amendment cided that in all cases where the powers of to the Constitution inconsistent with a preCongress are concurrent with those of the

viously existing provision. Of course, the states, they are supreme as incident to con. immediate answer is that an amendment is currence.

The contention is not tenable; it made to change a previously existing prooverlooks the determining consideration.

vision. What other purpose could an amendThe powers of Congress were not decided to ment have and it would be nullified by the be supreme because they were concurrent

mythical power attributed to article 5, eiwith powers in the states, but becaus of

ther alone or in conjunction with article 6? their source, their source being the Con. A contention that ascribes such power to stitution of the United States and the laws those articles is untenable. The Eighteenth made in pursuance of the Constitution, Amendment is part of the Constitution and as against the source of the powers of the as potent as any other part of it. Section 2, states, their source being the Constitution therefore, is a new provision of power, power and laws of the states, the Constitution and laws of the United States being made to the *states as well as to Congress, and it by article 6 the supreme law of the is a contradiction to say that a power conland, “any Thing in the Constitution or Laws stitutionally concurrent in Congress and the of any Siate to the Contrary notwithstand states, in some way becomes constitutionally ing." McCulloch v. Maryland, 4 Wheat. 316, subordinate in the states to Congress. 426, 4 L. Ed. 579.

If it be said that the states got no power This has example in other powers of sov

over prohibition that they did not have beereignty that the states and Congress pos- fore, it cannot be said that it was not pre

In McCulloch v. Maryland, at pages 425, 430 of 4 Wheat. (4 L. Ed. 579), Chief served to them by the amendment, notwithJustice Marshall said that the power of taxa- standing the policy of prohibition was made tion retained by the states was not abridged national, and besides, there was a gift of

power to Congress that it did not have beby the granting of a similar power to the fore, a gift of a right to be exercised within government of the Union, and that it was

state lines, but with the limitation or condito be concurrently exercised, and these tion that the powers of the states should truths, it was added, had never been denied, remain with the states and be participated in and that there was no “clashing sovereignty” by Congress only in concurrence with the from incompatibility of right. And, neces- states, and thereby preserved from abuse by sarily, a con*currence of power in the states either, or exercise to the detriment to proand Congress excludes the idea of supremacy hibition. There was, however, a power given in either. Therefore, neither principle nor to the states, a power over importations. precedent sustains the contention that section This power was subject to concurrence with 2 by giving concurrent power to Congress and Congress and had the same safeguards. the states, gave Congress supreme power over

This construction of section 2 is enforced the states. I repeat the declaration of Mr. by other considerations. If the supremacy Justice McLean:

of Congress had been intended it would have "A concurrent power excludes the idea of a Fourteenth and Fifteenth Amendments. And

been directly declared as in the Thirteenth, dependent power.”

such was the condition when the amendment It is, however, suggested (not by the gov- left the Senate. The precedent of preceding ernment) that if Congress is not supreme amendments was followed, there was a single upon the considerations urged by the govern- declaration of jurisdiction in Congress.

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