FIVE judges of the United States Supreme Court uphold the Constitutionality of the law which limits the quantity of medicinal whisky which physicians may prescribe.

This means that there is nothing to prevent Congress from substituting its judgment for the judgment of the individual physician in deciding to what extent alcohol is necessary or valuable as a medicine.

From this decision four judges of the Supreme Court record their dissent.

Among the majority are two judges most widely known for their liberal views-the oldest member of the Court in both years and service, Justice Holmes, and the writer of the opinion, Justice Brandeis. The others in the majority are Chief Justice Taft, Justice Van Deventer, and Justice Sanford. In the minority are Justice Sutherland, who wrote the dissenting opinion, Justice McReynolds, Justice Butler, and Justice Stone.

To many physicians this decision will seem to be the Court’s approval of an invasion of their right, as scientific men, to be governed by the facts as they understand them and not by the opinion of a political body. What the Supreme Court decided, however, is not whether the judgment of Congress is better than that of the physician, but whether Congress has the right to substitute its opinion-better or worse-for that of the individual physician. In this case the right of Congress rests upon that provision of the Constitution which gives Congress power to make laws necessary and proper for carrying into execution the prohibition of the manufacture, sale, and transportation of intoxicating beverages. The remedy, if any is needed, lies, according to this decision, not with the courts, but with Congress. Of course, the Supreme Court would not uphold Congress in carrying the Eighteenth Amendment into execution by unreasonable law. Sufficient medical opinion, however, against the need of whisky as a medicine was laid before Congress to make it clear, in the opinion of the majority of the Court, that the limitation upon prescribing alcohol was not unreasonable.

It is interesting to note that in upholding the provision against prescribing malt liquor the decision of the Supreme Court, in a former case, was unanimous.

Source: The Outlook, 8 December 1926