United States v. Hill (248 U.S. 420)/Dissent Clark McReynolds

Mr. Justice McREYNOLDS dissenting.

When Hill carried liquor from Kentucky into West Virginia for his personal use he did only what the latter state permitted. Construed as forbidding this action because West Virginia had undertaken to forbid manufacture and sale of intoxicants, the Reed Amendment in no proper sense regulates interstate commerce, but is a direct intermeddling with the state's internal affairs. Whether regarded as reward or punishment for wisdom or folly in enacting limited prohibition, the amendment so construed, I think, goes beyond federal power; and to hold otherwise opens possibilities for partial and sectional legislation which may destroy proper control of their own affairs by the several states.

If Congress may deny liquor to those who live in a state simply because its manufacture is not permitted there, why may not this be done for any suggested reason-e. g. because the roads are bad or men are hanged for murder or coals are dug. Where is the limit?

The Webb-Kenyon Law, upheld in Clark Distilling Co. v. Western Md. Ry. Co., 242 U.S. 311, 37 Sup. Ct. 180, 61 L. Ed. 326, L. R. A. 1917B, 1218, Ann. Cas. 1917B, 845, is wholly different from the act here involved. It suspends as to intoxicants moving in interstate commerce the rule of freedom from control by state action which the courts infer from congressional silence or failure specifically to regulate. 'The absence of any law of Congress on the subject is equivalent to its declaration that commerce in that matter shall be free.' Bowman v. Chicago, etc., Railway way Co., 125 U.S. 465, 508, 8 Sup. Ct. 689, 1062, 31 L. Ed. 700; Leisy v. Hardin, 135 U.S. 100, 119, 10 Sup. Ct. 681, 34 L. Ed. 128. In plain terms, it permits state statutes to operate and thereby negatives any inference drawn from silence. The Reed Amendment as now construed is a congressional fiat imposing more complete prohibition wherever the state has assumed to prevent manufacture or sale of intoxicants.

Mr. Justice CLARKE concurs in this dissent.