Ruppert v. Caffey/Dissent Clark McReynolds
Mr. Justice McREYNOLDS, with whom concurred Mr. Justice DAY, and Mr. Justice VAN DEVANTER, dissenting.

I cannot accept either the conclusion announced by the court or the reasons advanced to uphold it. The importance of the principles involved impels a dissent.

We are not now primarily concerned with the wisdom or validity of general legislation concerning liquors, nor with the intoxicating qualities of beer, nor with measures taken by a state under its inherent and wide general powers to provide for public safety and welfare. Our problem concerns the power of Congress and rights of the citizen after a declaration of war, but when active hostilities have ended and demobilization has been completed.

The government freely admits, since the present cause stands upon motion to dismiss a bill which plainly alleges that the beer in question is nonintoxicating, we must accept that allegation as true and beyond controversy. In United States v. Standard Brewery, 251 U.S. 210, 40 Sup. Ct. 139, 64 L. Ed. --, decided this day, we rule in effect that for many months prior to the Volstead Act, passed October 28, 1919, no law of the United States forbade the production or sale of nonintoxicating malt liquors. And so the question for decision here distinctly presented, is this: Did Congress have power on October 28, 1919, directly and instantly to prohibit the sale of a nonintoxicating beverage, theretofore lawfully produced and which until then could have been lawfully vended, without making any provision for compensation to the owner?

The federal government has only those powers granted by the Constitution. The Eighteenth Amendment not having become effective, it has no general power to prohibit the manufacture or sale of liquors. But by positive grant Congress has been empowered 'to declare war,' 'to raise and support armies,' 'to provide and maintain a navy,' 'to make rules for the government and regulation of the land and naval forces,' 'to make all laws which shall be necessary and proper for carrying into execution the foregoing powers'; and to these it is attempted to trace the asserted power to prohibit sale of complainant's beer. See, concerning implied powers, Cooley's Principles of Constitutional Law, 105; Story on the Constitution (4th Ed.) § 1243.

The argument runs: This court has held in Hamilton, Collector, v. Kentucky Distilleries & Warehouse Co., decided December 8th, that under a power implied because necessary and proper to carry into execution the above named powers relating to war, in October, 1919, Congress could prohibit the sale of intoxicating liquors. In order to make such a prohibition effective the sale of nonintoxicating beer must be forbidden. Wherefore, from the implied power to prohibit intoxicants the further power to prohibit this nonintoxicant must be implied.

The query at once arises: If all this be true, why may not the second implied power engender a third under which Congress may forbid the planting of barley or hops, the manufacture of bottles or kegs, etc. The mischievous consequences of such reasoning were long ago pointed out in Kidd v. Pearson, 128 U.S. 1, 21, 9 Sup. Ct. 6, 10 (32 L. Ed. 346), where, replying to a suggestion that under the expressly granted power to regulate commerce, Congress might control related matters, it was said:

'The result would be that Congress would be invested, to the      exclusion of the states, with the power to regulate, not only      manufactures, but also agriculture, horticulture, stock      raising, domestic fisheries, mining-in short, every branch of      human industry. For is there one of them that does not      contemplate, more or less clearly, an interstate or foreign      market?'

For sixty years Ex parte Milligan, 4 Wall. 2, 120, 125 (18 L. Ed. 281), has been regarded as a splendid exemplification of the protection which this court must extend in time of war to rights guaranteed by the Constitution, and also as decisive of its power to ascertain whether actual military necessity justifies interference with such rights. The doctrines then clearly-I may add, courageously-announced, conflict with the novel and hurtful theory now promulgated. A few pertinent quotations from the opinion will accentuate the gravity of the present ruling:

'Time has proven the discernment of our ancestors; for even      these provisions, expressed in such plain English words, that      it would seem the ingenuity of man could not evade them, are      now, after the lapse of more than seventy years, sought to be      avoided. Those great and good men foresaw that troublous times would arise, when      rulers and people would become restive under restraint, and      seek by sharp and decisive measures to accomplish ends deemed      just and proper; and that the principles of constitutional      liberty would be in peril, unless established by irrepealable      law. The history of the world had taught them that what was      done in the past might be attempted in the future. The      Constitution of the United States is a law for rulers and      people, equally in war and in peace, and covers with the      shield of its protection all classes of men, at all times,      and under all circumstances. No doctrine, involving more      pernicious consequences, was ever invented by the wit of man      than that any of its provisions can be suspended during any      of the great exigencies of government. Such a doctrine leads      directly to anarchy or despotism, but the theory of necessity      on which it is based is false; for the government, within the      Constitution, has all the powers granted to it, which are      necessary to preserve its existence, as has been happily      proved by the result of the great effort to throw off its      just authority. * * *

'This nation, as experience has proved, cannot always remain      at peace, and has no right to expect that it will always have      wise and humane rulers, sincerely attached to the principles      of the Constitution. Wicked men, ambitious of power, with      hatred of liberty and contempt of law, may fill the place      once occupied by Washington and Lincoln; and if this right is      conceded, and the calamities of war again befall us, the      dangers to human liberty are frightful to contemplate. If our      fathers had failed to provide for just such a contingency,      they would have been false to the trust reposed in them. They      knew-the history of the world told them-the nation they were      founding, be its existence short or long, would be involved      in war; how often or how long continued, human foresight      could not tell; and that unlimited power, wherever lodged at such a time, was especially hazardous to freemen. For      this, and other equally weighty reasons, they secured the      inheritance they had fought to maintain, by incorporating in      a written constitution the safeguards which time had proved      were essential to its preservation. Not one of these      safeguards can the President, or Congress, or the judiciary      disturb, except the one concerning the writ of habeas      corpus.'

By considering the circumstances existing when the War-Time Prohibition Act was challenged, in order to reach the conclusion announced in Hamilton, Collector, v. Kentucky Distilleries & Warehouse Co., supra, this court asserted its right to determine the relationship between such an enactment and the conduct of war; the decision there really turned upon an appreciation of the facts. And that the implied power to enact such a prohibitive statute does not spring from a mere technical state of war but depends upon some existing necessity directly related to actual warfare, was recognized. Treating that opinion as though it asserted the existence of a general power delegated to Congress to prohibit intoxicants, certain cases which declare our inability to interfere with a state in the exercise of its police power (Purity Extract Co. v. Lynch, 226 U.S. 192, 33 Sup. Ct. 44, 57 L. Ed. 184; Silz v. Hesterberg, 211 U.S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75, etc.) are now cited, and it is said they afford authority for upholding the challenged statute. But those cases are essentially different from the present one, both as to facts and applicable principles; the power exercised by the states was inherent, ever present, limited only by the Fourteenth Amendment, and there was no arbitrary application of it; the power of Congress recognized in Hamilton, Collector, etc., and here relied upon, must be inferred from others expressly granted and should be restricted, as it always has been heretofore, to actual necessities consequent upon war. It can only support a measure directly relating to such necessities and only so long as the relationship continues. Whether these essentials existed when a measure was enacted or challenged, presents a question for the courts; and, accordingly, we must come to this ultimate inquiry: Can it be truthfully said, in view of the well-known facts existing on October 28, 1919, that general prohibition immediately after that day of the sale of nonintoxicating beer theretofore lawfully manufactured, could afford any direct and appreciable aid in respect of the war declared against Germany and Austria?

What were the outstanding circumstances? During the nineteen months-April, 1917, to November, 1918-when active hostilities were being carried on, and for almost a year thereafter, Congress found no exigency requiring it to prohibit sales of nonintoxicating beers. The armistice was signed and actual hostilities terminated November 11, 1918. Our military and naval forces, with very few exceptions, had returned and demobilization had been completed. The production of war material and supplies had ceased long before and huge quantities of those on hand had been sold. The President had solemnly declared:

'The war thus comes to an end; for, having accepted these      terms of armistice, it will be impossible for the German      command to renew it.'

'That the object of the war is attained.' 'The quiet of peace      and tranquility of settled hopes has descended upon us.'

July 10, 1919, he announced, 'The war ended in November, eight months ago;' and in a message dated October 27, 1919, he declared that war emergencies which might have called for prohibition 'have been satisfied in the demobilization of the army and navy.' Food supplies were abundant, and there is no pretense that the enactment under consideration was intended to preserve them. Finally, the statute itself contains no declaration that prohibition of nonintoxicants was regarded as in any way essential to the proper conduct or conclusion of the war or to restoration of peace.

Giving consideration to this state of affairs I can see no reasonable relationship between the war declared in 1917, or the demobilization following (both of which in essence, if not by formal announcement, terminated before October, 1919), or restoration of peace (whose quiet had already descended upon us) and destruction of the value of complainant's beverage, solemnly admitted in this record to be nonintoxicating and which it manufactured, held and desired to sell in strict compliance with the laws of New York. Nor can I discover any substantial ground for holding that such destruction could probably aid in an appreciable way the enforcement of any prohibition law then within the competency of Congress to enact. It is not enough merely to assert such a probability; it must arise from the facts.

Moreover, well settled rights of the individual in harmless property and powers carefully reserved to the states, ought not to be abridged or destroyed by mere argumentation based upon supposed analogies. The Constitution should be interpreted in view of the spirit which pervades it and always with a steadfast purpose to give complete effect to every part according to the true intendment-none should suffer emasculation by any strained or unnatural construction. And these solemn words we may neither forget nor ignore:

'Nor shall any person * * * be deprived of life, liberty, or      property without due process of law; nor shall private      property be taken for public use, without just compensation.'

'The powers not delegated to the United States by the      Constitution, nor prohibited by it to the states, are      reserved to the states respectively, or to the people.'

Mr. Justice CLARKE also dissents. 

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