National Prohibition Cases, 253 U.S. 350 (1920)

Author: Justice McKenna

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National Prohibition Cases, 253 U.S. 350 (1920)

MR. JUSTICE McKENNA, dissenting.

This case is concerned with the Eighteenth Amendment of the Constitution of the United States, its validity and construction. In order to have it and its scope in attention, I quote it:

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 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. My only comment is that I know of no intimation in the case that § 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 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, prescribe the quality of 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 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 legislation, why not a decision 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.

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 requirements. Its prohibition of "intoxicating liquors" "for beverage purposes" is absolute. And, as accessory to that prohibition, 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 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.{1} 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 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 § 2 -- "a concurrent power excludes the idea of a dependent power." Mr. Justice McLean, in the Passenger Cases, 7 How. 283, 399.

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 Eighteenth Amendment was intended to deal with a condition, not a theory, and one demanding something more than exhortation and precept. The 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 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 § 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 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, p. 579. Analogy of the word "concurrent" in private instruments may also be invoked.

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 as there are minds considering the section, and out of the conflict, I had almost said chaos, one despairs of finding an undisputed meaning. It may be said that the Court, realizing this, by a declaration of conclusions only, has escaped the expression of antithetical views and considered it better not to blaze the trails, though 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 § 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 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. 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.

The government nevertheless contends that the decisions (they need not be cited) constitute precedents for its construction of § 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 concurrence. The 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 by Article VI the supreme law of the land, "any Thing in the Constitution or Laws of any state to the Contrary notwithstanding." McCulloch v. Maryland, 4 Wheat. 316, 426.

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 concurrence of power in the states and Congress excludes the idea of supremacy in either. Therefore, neither principle nor precedent sustains the contention that § 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: "A concurrent power excludes the idea of a dependent power."

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 Article VI of 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, but of the supremacy of the Constitution and laws of the United States over the constitutions and laws of the states. Gibbons v. Ogden, 9 Wheat. 1, 209, 211; 2 Story, Const., 5th ed., § 1838 et seq.

The Eighteenth Amendment is part of the Constitution of the United States, therefore of as high sanction as Article VI. There seems to be a denial of this based on Article V. 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 VI, as if Article V 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 V, either alone or in conjunction with Article VI? 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 to the states as well as to Congress, and it is a contradiction to say that a power constitutionally concurrent in Congress and the states, in some way becomes constitutionally subordinate in the states to Congress.

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 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 § 2 is enforced by other considerations. If the supremacy 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 left the Senate. The precedent of preceding amendments was followed; there was a single declaration of jurisdiction in Congress.

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 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 government 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 § 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 § 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 there 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 § 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 § 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 and a power of jurisdiction to their courts, but, almost at the very instant of concession, the power and jurisdiction are declared to be without effect.

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 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 congressional legislation, that of Congress would prevail, by intimating that, if state legislation be more drastic than congressional legislation, it might prevail, and, in support of the suggestion, urges that § 1 is a command to prohibition, and that the purpose of § 2 is to enforce the command, and whatever legislation is the most prohibitive subserves best the command, displaces less restrictive legislation, and becomes paramount. If a state therefore should define an intoxicating beverage to be one that has less than one-half of 1 percent of alcohol, it would supersede the Volstead Act, and a state might even keep its legislation supreme by forestalling congressional retaliation by prohibiting all artificial beverages of themselves innocuous, the prohibition being accessory to the main purpose of power, adducing Purity Extract Co. v. Lynch, 226 U.S. 192, and Ruppert v. Caffey, 251 U.S. 264. Of course, this concession of the more drastic legislation destroys all that is urged for congressional supremacy, for necessarily supremacy cannot be transferred from the states to Congress or from Congress to the states as the quantity of alcohol may vary in the prohibited beverage. Section 2 is not quite so flexible to management. I may say, however, that one of the conclusions of the court has limited the range of retaliations. It recognizes "that there are limits beyond which Congress cannot go in treating beverages as within its power of enforcement," and declares "that those limits are not transcended by the provisions of the Volstead Act." Of course, necessarily, the same limitations apply to the power of the states as well.

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 Congress, make all the instrumentalities of the states, its courts, and officers agencies of the enforcement, as well as the instrumentalities of the United States, its court and officers, agencies of the enforcement? Will it not bring to the states as well, or preserve to them, a partial autonomy, satisfying, if you will, their prejudices, or better say, their predilections, and it is not too much to say that our dual system of government is based upon them. And this predilection for self-government the Eighteenth Amendment regards and respects, and by doing so sacrifices nothing of, the policy of prohibition.

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 Volstead Act, with its 1/2 of 1 percent of alcohol, or in such legislation as some of the states have enacted with their 2.75 percent of alcohol, but it will be in a law that will be prohibitive of intoxicating liquor for beverage purposes. It may require a little time to achieve, it may require some adjustments, but of its ultimate achievement there can be no doubt. However, whatever the difficulties of achievement in view of the requirement of § 2, it may be answered as this Court answered in Wedding v. Meyler, supra:

The conveniences and inconveniences of concurrent power by the Congress and the states are obvious, and do not need to be stated. We have nothing to do with them when the lawmaking power has spoken.

I am, I think, therefore justified in my dissent. I am alone in the grounds of it, but in the relief of the solitude of my position I invoke the coincidence of my views with those entertained by the minority membership of the Judiciary Committee of the House of Representatives, and expressed in its report upon the Volstead Act.


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Chicago: McKenna, "McKenna, J., Dissenting," National Prohibition Cases, 253 U.S. 350 (1920) in 253 U.S. 350 253 U.S. 393–253 U.S. 407. Original Sources, accessed May 31, 2023,

MLA: McKenna. "McKenna, J., Dissenting." National Prohibition Cases, 253 U.S. 350 (1920), in 253 U.S. 350, pp. 253 U.S. 393–253 U.S. 407. Original Sources. 31 May. 2023.

Harvard: McKenna, 'McKenna, J., Dissenting' in National Prohibition Cases, 253 U.S. 350 (1920). cited in 1920, 253 U.S. 350, pp.253 U.S. 393–253 U.S. 407. Original Sources, retrieved 31 May 2023, from