This case is concerned with the Eighteenth Amendment of the Constitution of the Unitorder 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 distinctions between state and federal power, and contemplating the exercise by Congress of the duty cast upon it to make the prohibition efficacious, it was sought by the second section to unite national and state administrative agencies in giving effect to the amendment 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 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 Eighteenth *393 *"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. shall have concurrent power to enforce this article by appropriate legislation." "Sec. 2. The Congress and the several states 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. 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. 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. *396 national power might *prescribe. But it does not stand alone. Section 2 associates Congress and the states in power to enforce it. Its words are: "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, #397 and the definitions of our lexicons, general and legal.2 Some of the definitions assign to 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 It may undoubtedly be used to indicate that used. 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. would be idle, however, to go into all the meanings which may attach to this word. In certain connections, it has a It 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 concurrent power of the states and of Congress is will thus be seen that in legal nomenclature the 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 con- rule of construction that in the exposition of junction, 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. 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 section 2, it is given to be coexistently exercised. It is to be remembered that the Eighteenth Amendment was intended to deal with a condition, not a theory, and one demanding something more than exhortation and precept. habits of a people were to be changed, large business interests were to be disturbed, and it was considered that the change and disturbance could only be effected by punitive and repressive legislation, and it was naturally 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 The 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. 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 them" interpretation has nothing to do. This can be asserted of section 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 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) ing with; coincident. 3. Conjoint; joint; concom- Powers that were exclusive in the states-reitant; coordinate; combined. That which served to them; (2) powers that were excluconcurs; a joint or contributory thing." Webster's sive in Congress, conferred upon it; (3) powfirst definition is the same as that of the Century. The 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 Other Those cases are examples of the elemental (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 applicable. It is not a declaration of the supremacy of one provision of the Constitution or laws of the United States over another, $400 states then retires" to inaction. To understand them, it must be especially observed that their emphasis was, as the fundamental principle of the new government was, that it had no powers that were not conferred upon it, and that all other powers were reserved to the states. And this necessarily 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. Gibbons v. but of the supremacy of the Constitution and 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 de cided 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. *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, notwith 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 taxa-standing the policy of prohibition was made tion 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 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 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 If the supremacy by other considerations. of Congress had been intended it would have been directly declared as in the Thirteenth, Fourteenth and Fifteenth Amendments. And 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. "A concurrent power excludes the idea of a dependent power." 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 im *403 I am not, therefore, disposed to regard the concessions seriously. They confuse-"make not light, but 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?3 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 inthe exercises of sovereignty are not in anstance, in counterfeiting cases. In such cases mediately superseded-indeed, as this case shows, is possibly forestalled and precluded by the power exercised in the Volstead Act. And meaningless is the difference the gov-tagonism. Each is inherently possessed and ernment suggests between concurrent power and concurrent legislation. A power is given to be exercised, and we are cast into helpless and groping bewilderment in trying to think of it apart from its exercise or the effect of its exercise. The addition to section 2 was a conscious adaptation of means to the purpose. It changed the relation between the states and the national government. The lines of exclusive power in one or the other were removed, and equality and community of powers substituted. There is a suggestion, not made by the government, though assisting its contention, that section 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 emergent 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 section 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, but at any rate in recognition of the insufficiency of its contention to satisfy the words of section 2, makes some concessions to the states. They are, however, not very tangible to measurement. They seem to independently exercised, and can be enforced The government seeking relief from the perturbation of mind and opinions produced by departure from the words of section 2, suggests a modification of its contention, The government feels the inconsistency of its concessions and recessions. It asserts at one in stant 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 meaning that a prosecution in the courts of one government may be held to bar a prosecution for the same offence in the courts of the other." The government considers, however, the question is not now presented. |