Constitutional Law in 1930–31: The Constitutional Decisions of the Supreme Court of the United States in the October Term, 1930

In November, 1930, Judge William Clark of the United States district court in New Jersey achieved nation-wide notoriety by a decision holding that the Eighteenth Amendment was not properly ratified and is therefore not a part of the Constitution. A prosecution had been brought against one Sprague, under an indictment charging unlawful transportation and possession of liquor in violation of the Volstead Act. This indictment Judge Clark quashed on the ground that the Eighteenth Amendment upon which the Volstead Act rests should have been ratified by conventions called for that purpose in three-fourths of the states, rather than by the legislatures of those states. This conclusion he supported by a long argument emphasizing the fundamental character of the constitutional change effected and the importance and necessity of having such a change accomplished by the agency of representatives elected by the people of the several states for that specific purpose. An appeal from Judge Clark's decision was at once taken by the government under the provisions of the Criminal Appeals Act of 1907. In fact, it was to meet just such situations as this that the act of 1907 was passed; for without the possibility of such appeal a decision of a lower federal court adverse to the constitutionality of a federal criminal statute might be final within the district concerned. No question of double jeopardy is raised by this procedure, since the accused is not placed in jeopardy until the trial jury is sworn and the quashing of the indictment occurs long before that point is reached.