c10:Nos. 29, 30, and Nos. 696, 752, 788, 794, 837

Mr. Chief Justice White,
concurring.
I profoundly regret that in a case of this magnitude, affecting as it does an amendment to the Constitution dealing with the powers and duties of the national and state governments, and intimately concerning the welfare of the whole people, the court hás deemed it proper to state only ultimate conclusions without an exposition of the reasoning by which they have been reached.
I appreciate the difficulties which a solution of the cases involves and the solicitude. with which the court has approached them, but it seems to my mind that the greater the perplexities the greater the duty devolving upon me to express the reasons which have led me to the conclusion that the Amendment accomplishes and was intended to accomplish the purposes now attributed to it in. the propositions concerning that subject which the court has just announced and in which I concur. Primarily, in doing this I notice various contentions made concerning the proper construction of the provisions of the Amendment which I have been unable to accept, in order that by contrast they may add cogency to the statement of the understanding I have of the Amendment.
The Amendment, which is reproduced in the announcement for the coürt, contains three numbered paragraphs or sections, two of which only need be noticed. The first prohibits “the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, 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 purpose, I cannot accept this interpretation, since it would result simply in declaring that the provisions of the second section, avowedly enacted to provide means for carrying out the first, must be so interpreted as practically to nullify the first.
2. It is said, conceding that the concurrent power given to Congress and to the States does not as a prerequisite, exact the concurrent action of both, it nevertheless contemplates the possibility of action by Congress and by the States and makes each action effective, but, as under the Constitution the authority of Congress in enforcing the Constitution is paramount, when state legislation and congressional action conflict the state legislation yields to the action of Congress as controlling. But as the power of both Congress and the States in this instance is given by the Constitution in one and the same provision, I again find myself unable to accept the view urged, because it ostensibly accepts the constitutional mandate as to the concurrence of the two powers and proceeds immediately by way of interpretation to destroy it by making one paramount over the other.
3. The proposition is that the coqpurrent powers conferred 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 upofi Congress is confined to the area of its jurisdiction and therefore is not operative within a State.
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 só vitally concerning all the people solely in order to render governmental' action impossible, or if possible, to so define and limit it as to cause it to be productive of no results and to frustrate the obvious intent and general purpose contemplated. It is true, indeed, that the mere words of the second section tend to these results, but if they be read in the light of the cardinal rule which compels a consideration of the context in view of the situation and the subject with which the Amendment dealt and the purpose which it was intended to accomplish, the confusion will be seen to be only apparent.
In the first place, it is undisputable, as I have stated, that thé first section imposes a general prohibition which it was the purpose to make universally and uniformly operative 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 regulations and sanctions as were essential to make it operative when defined. In the third place, when the second section is considered with these truths in mind, it becomes clear that it simply manifests a like purpose to adjust, as far as possible, the exercise of 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 imite 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 confine the concurrent power given to legislation appropriate to the purpose of enforcement.
I take it that if the second section of the article did not exist no one would gainsay that the first section in and of itself granted the power and imposed the duty upon Congress to legislate to the end that by definition and sanction the Amendment would become fully operative. This being 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 tó 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 Amendment. Because of the bewilderment which it creates, a multitude of questions will inevitably arise and demand solution here. In the circumstances, I prefer to remain free to consider these questions when they arrive.

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