(40 Sup.Ct.) I appreciate the difficulties which a solution of the cases involve 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. *390 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 proclusions 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 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*ferred upon Congress and the states are not subject to conflict because their exertion is authorized within different areas, that is, by Congress within the field of federal authority, and by the states within the sphere of state power, hence leaving the states free within their jurisdiction to determine separately for themselves what, within reasonable limits, is an intoxicating liquor, and to Congress the same right within the sphere of its jurisdiction. But the unsoundness of this more plausible contention seems to me at once exposed by directing attention to the fact that in a case where no state legislation was enacted there would be no prohibition, thus again frustrating the first section by a construction affixed to the second. It is no answer to suggest that a regulation by Congress would in such event be operative in such a state, since the basis of the distinction upon which the argument rests is that the concurrent power conferred upon Congress is confined to the area of its jurisdiction and therefore is not operative within a state. 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 *389 "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." The second is as follows: "Sec. 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." 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 pur pose, 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 to practically nullify the first. 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. *391 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 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 and efficacious. In the second place, as the prohibition did not define the intoxicating beverages which it prohibited, in the absence of anything to the contrary, it clearly, from the very fact of its adoption, cast upon Congress the duty, not only of defining the prohibited beverages, but also of enacting such Amendment of the Constitution of the UnitThis case is concerned with the Eighteenth order to have it, and its scope in attention, ed States, its validity and construction. In I quote it: 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 amendment to the dual system of government existing under the Constitution. In other words, dealing with the new prohibition created by the Constitution, operating throughout 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 terrisection to unite national and state adminis-tory subject to the jurisdiction thereof for bevtrative agencies in giving effect to the amend- erage purposes is hereby prohibited. ment and the legislation of Congress enacted to make it completely operative. 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 confines 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 *392 fully operative. This being true it would follow, if the contentions under consideration were sustained, that the second section gave the states the power to nullify the first section, since a refusal of a state to define and sanction would again result in no amendment to be enforced in such refusing state. 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 stafes 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. *393 "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 judgment reversing No. 794 and affirming Nos. 752, 696, 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 its 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 Eighteenth Amendment is part of the Constitution of the United States, made so in observance of the prescribed constitutional procedure, and has become part of the Constitution of the United States, to be respected and given effect like other provisions of that instrument. With these conclusions I agree. Conclusions 4, 5, and 6 seem to assert the undisputed. I neither assent to them or 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. *394 My only comment is that I know of no *intimation in the case that section 2 in conferring concurrent power on Congress and the states to enforce the prohibition of the first section, conferred a power to defeat or obstruct prohibition. Of course, the power was conferred as a means to enforce the prohibition and was made concurrent to engage the resources and instrumentalities of the nation and the states. The power was conferred for use, not for abuse. 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 Eighteenth Conclusions 8 and 9, as I view them, are (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. *396 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 Volstead Act is legal legislation and operative throughout the United States. But are there no opposing considerations, no conditions upon its operation? And what of conflicts, and there are conflicts, and more there may be, between it and state legislation? The conclusions of the court do not answer the questions and yet they are submitted for decision; and their importance appeals for judgment upon them. It is to be remembered states are litigants as well as private citizens, the former presenting the rights of the states, the latter seeking protection against the asserted aggression of the act in controversy. And there is opposing state *395 legislation, why not a deci*sion upon it? Is it on account of the nature of the actions being civil and in equity, the proper forum being a criminal court investigating a criminal charge? There should be some way to avert the necessity or odium of either. 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 power 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. national power might prescribe. But it does "The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation." 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 of Congress is supreme, and asserts besides, that the answer is sustained by historical and legal precedents. I contest the assertions and oppose to them the common usage of our language, and the definitions of our lexicons, *general and legal.2 Some of the definitions assign to *397 1 The following is the contention of the government which we give to accurately represent it: "It is true that the word 'concurrent' has various meanings, according to the connection in which it is used. It may undoubtedly be used to indicate that something is to be accomplished by two or more persons acting together. It is equally true that it means, in other connections, a right which two or more persons, acting separately and apart from each other, may exercise at the same time. It would be idle, however, to go into all the meanings which may attach to this word. In certain connections, it has a well-fixed and established meaning, which is controlled in this case." And again: "It is to be noted that section 2 does not say that legislation shall be concurrent, but that 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." 2 Definitions of the dictionaries are as follows: The Century: "Concurrent: 2. Concurring; acting in conjunction; agreeing in the same act; Recurring to the first section of the amend-contributing to the same event or effect; operat the words "concurrent power" action in conjunction, contribution of effort, certainly harmony of action, not antagonism. Opposing laws are not concurring laws, and to assert the supremacy of one over the other is to assert the exclusiveness of one over the other, not their concomitance. Such is the result of the government's contention. It does not satisfy the definitions, or the requirement of section 2-"a concurrent power excludes the idea of a dependent power." Mr. Justice McLean in the Passenger Cases, 7 How. 283, 399, 12 L. Ed. 702. 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, 9 Sup. Ct. 651, 32 L. Ed. 1060. 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 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, I had almost said chaos, one despairs of more than exhortation and precept. The 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 Congress and the several states," by its concurrence would better enforce prohibition and avail for its enforcement the two great *398 divisions of our governmental system, *the nation and the states, with their influences and instrumentalities. From my standpoint, the exposition of the case is concluded by the definition of the words of section 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, 24 Sup. Ct. 322, 48 L. Ed. 570, 66 L. R. A. 833, and Nielsen v. Oregon, 212 U. S. 315, 29 Sup. Ct. 383, 53 L. Ed. 528, in which "concurrent jurisdiction" was given respectively to Kentucky and Indiana over the Ohio river by the Virginia Compact, and respectively to Washington and Oregon over the Columbia river by act of Congress. And it was decided that it conferred equality of powers, "legislative, judicial and executive," and that neither state could override the legislation of the other. Other courts have given like definitions. 2 Words and Phrases Judicially Defined, p. 1391 et seq.; Bouvier's Dictionary, vol. 1, page 579. Analogy of the word "concurrent" in private instruments may also be invoked. *399 it was believed that they all led to the same destination. 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 section 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 not 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 exclu sive in Congress, conferred upon it; (3) powThe second is as follows: "Joint; associate; coners that were not exclusive in either, and comitant; existing or happening at the same time." hence said to be "concurrent." And it was Those cases are examples of the elemental ing with; coincident. 3. Conjoint; joint; concom- *400 (40 Sup.Ct.) decided that, when exercised by Congress, | ment, it is made supreme by article 6 of The article is not apthey were supreme-"the authority of the the Constitution. plicable. It is not a declaration of the sustates then retires" to inaction. To under-premacy of one provision of the Constitution stand them, it must be especially observed 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 construing old provisions of the Constitution or amendments to it or laws passed under the amendments. currence. The Eighteenth Amendment is part of the Constitution of the United States, therefore of as high sanction as article 6. There seems to be a denial of this, based on article 5. That article provides that the amendments proposed by either of the ways there expressed "shall be valid to all intents and purposes as part of this Constitution." Some undefinable power is attributed to this in connection with article 6, as if article 5 limits in some way, or defeats, an amendment to the Constitution inconsistent with a previously existing provision. Of course, the immediate answer is that an amendment is made to change a previously existing provision. What other purpose could an amendment have and it would be nullified by the mythical power attributed to article 5, either alone or in conjunction with article 6? A contention that ascribes such power to those articles is untenable. The Eighteenth Amendment is part of the Constitution and as potent as any other part of it. Section 2, therefore, is a new provision of power, power The government nevertheless contends that the decisions (they need not be cited) constitute precedents for its construction of section 2 of the Eighteenth Amendment. In other words, the government contends (or must so contend for its reasoning must bear the test of the generalization) that it was decided that in all cases where the powers of Congress are concurrent with those of the states, they are supreme as incident to conThe contention is not tenable; it overlooks the determining consideration. The powers of Congress were not decided to be supreme because they were concurrent with powers in the states, but because of their source, their source being the Constitution of the United States and the laws made in pursuance of the Constitution, as against the source of the powers of the states, their source being the Constitution 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 State 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. This has example in other powers of sovereignty that the states and Congress possess. In McCulloch v. Maryland, at pages 425, 430 of 4 Wheat. (4 L. Ed. 579), 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*currence of power in the states and Congress excludes the idea of supremacy in either. Therefore, neither principle nor precedent sustains the contention that section 2 by giving concurrent power to Congress and the states, gave Congress supreme power over the states. I repeat the declaration of Mr. Justice McLean: *401 #402 If it be said that the states got no power. over prohibition that they did not have before, it cannot be said that it 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 condítion 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 to 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 section 2 is enforced by other considerations. If the supremacy of Congress had been intended it would have been directly declared as in the Thirteenth, "A concurrent power excludes the idea of a Fourteenth and Fifteenth Amendments. And dependent power." It is, however, suggested (not by the government) that if Congress is not supreme upon the considerations urged by the govern such was the condition when the amendment left the Senate. The precedent of preceding amendments was followed, there was a single declaration of jurisdiction in Congress. |