State and National Power Over Commerce 9780231891226

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COLUMBIA

LEGAL

STUDIES

EDITED U N D E R T H E A U S P I C E S OF T H E F A C U L T Y O F LAW OF C O L U M B I A

Edwin W . Patterson,

NUMBER

UNIVERSITY

Editor

III

STATE AND NATIONAL POWER OVER COMMERCE

STATE AND NATIONAL POWER OVER COMMERCE By F. D. G. R I B B L E PROFESSOR OF L A W IN THE UNIVERSITY OF VIRGINIA

WITH

A FOREWORD

BY

R O B E R T B. T U N S T A L L MEMBER OF T H E VIRGINIA BAR

NEW YORK : MORNINGSIDE

HEIGHTS

C O L U M B I A U N I V E R S I T Y PRESS !937

Copyright

içjy

C O L U M B I A U N I V E R S I T Y PRESS Published

Foreign

193 7

Agents

O X F O R D U N I V E R S I T Y PRESS Humphrey Milioni, Amen House London, E. C. 4, England K W A N G HSUF.H P U B L I S H I N G HOUSE 140 Peking Road Shanghai, China MARUZF.N COMPANY, L T D . 6 Nihonbashi, Tori-Nichome Tokyo, Japan O X F O R D U N I V E R S I T Y PRESS B. 1. Building, Nicol Road Bombay, India

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FOREWORD is said to have remarked of Browning's Sordello that the only two lines he could understand were the first, "Who will may hear Sordello's story told," and the last, "Who would has heard Sordello's story told," and that both of them were lies. Precisely the opposite comment must be made upon the Introduction and Conclusion with which Mr. Ribble lays out and knits together his penetrating development of the interpretation of the commerce clause. Those who read his treatise—and no mature student of constitutional law but may do so with profit—would do well to con these chapters consecutively and carefully before passing to the close analysis that lies between. The reader of this book will not be looking for surprise endings. These may be left to the constitutionalists of the daily press, with perhaps an infusion from the law reviews. He will be reading of the building of a great structure, and with that structure in his mind's eye he can appraise details not only more effectively, but more enjoyably. It has never been thought to detract from the interest of a race to have the goal in sight.

LORD TENNYSON

It would be at once inappropriate and impertinent to attempt in this prefatory note any résumé of what the author has so carefully phrased. The quite original analysis is his own; the sequence and the conclusions are his. Any restatement would set fidelity and accuracy at hazard. The most that can possibly be attempted is a brief notice of the method of approach. That method is, of course, historical, as any study of development must be, but the history is never allowed to get out of focus. It is considered always with reference to the central topic, the law. "The effort," Mr. Ribble pithily says, "is not made here to consider the interacting forces, social, economic, political, merely human, or whatever they may be, which have

vi

FOREWORD

shaped the law, b u t rather the effort is to consider the law which they have shaped." Perhaps the first "consider" is a bit too broad, and "recount" might have been better, for all those "interacting forces" are considered, and deeply. But the point is that they are always considered with reference to the law that they influenced. T h e effect of the Supreme Court on United States history has been well told by Mr. Warren. Mr. Ribble undertakes rather to discuss the effect of history in the broadest sense—economic, scientific, social—on the Supreme Court. A mere glance at the chapter headings will indicate both the n a t u r e and the difficulty of Mr. Ribble's analysis. T o take only a few, thrown into pairs to bring home the point: " E x p a n d i n g T r a d e and a Passive Congress" may be coupled with " T h e Subjects of the Power over Commerce"; "Commerce . . . from the Viewpoint of Federal Power" with "Commerce . . . from the Viewpoint of State Power"; "State Acts Affecting Interstate Commerce" with "State Acts as Burdens on Interstate Commerce." Anyone who has attempted to climb h a n d over hand u p the rough and sometimes broken ladder of precedent will realize from this mere statement the effort involved in placing—and keeping—such subjects in separate compartments. T h a t Mr. Ribble has attempted it is to his credit. T h a t success has been so far attained would be, for most of us, a matter of surprise. But it would be an unjust view to regard Mr. Ribble's work primarily as a tour de force of allocation and classification. It is in fact much more. It is a reasoned effort, and a highly successful one, to show the present content of the commerce power and the considerations which, in their simultaneous and consecutive operation, have led a court of from five to ten judges, constantly changing, and each with strongly held individual convictions, to reach such harmony of interpretation as has been attained. T h e fact that, if they had been gifted with the power of universal prescience, some inconsistencies might have been avoided, some surer principles applied, is not suppressed, b u t we are not irritated by its u n d u e iteration. T h e correspond-

FOREWORD

vii

ingly obvious fact that American constitutional law, if it is still to b e the nation's guide, must continue to be developed rather than remade, is the inescapable conclusion from Mr. R i b b l e ' s admirably developed thesis. ROBERT B . CLEVELAND, FEBRUARY,

OHIO 1937

TUNSTALL

PREFACE

THIS study was commenced under the direction and with the assistance of Professor Noel T . Dowling of Columbia University when the author held a fellowship at that University. It has been completed with his constant help. For this most valuable aid and cooperation my sincere thanks are due. Grateful acknowledgment must also be made to two other professors of constitutional law, under whom I have studied: the late Professor Raleigh C. Minor, and Professor Thomas Reed Powell. I have attempted to label as such all recognizable borrowings from articles and books. For the lasting obligation to these three teachers, I can only make a general statement of gratitude, and express the hope that their ideas, which I have appropriated, have not been too seriously mutilated in the repetition. American constitutional law presents a product constructed by many minds operating over the entire life of the nation. T h e work began when commerce crept slowly in stage-coaches and wagons by land and in sailboats and barges by water, and when the people of the nation dwelt chiefly on small farms and many on frontier clearings. Changes in the law have not, of course, been so sharply marked or so readily apparent as changes in the ways of life. Yet there has been much change, a great deal of which has often passed unrecognized. This study attempts to trace the course of constitutional theory with reference to the division of power over commerce between the nation and the states. T h e purpose is to view the division of power in the present in the light of this evolution through the past. Thereby, it is hoped, some anomalies may be explained and aid may be given to a better understanding of the law of TODA

Y-

UNIVERSITY OF VIRGINIA FEBRUARY, 1937

F. D. G. RIBBLE

CONTENTS FOREWORD,

BY ROBERT B . TUNSTALL

V

PREFACE I.

ix

INTRODUCTION

3

II. MARSHALL AND T H E N A T U R E OF T H E POWER OVER COMMERCE

20

III. EXPANDING T R A D E AND A PASSIVE CONGRESS

53

IV. T H E SUBJECTS OF T H E POWER OVER COMMERCE

66

V. S T A T E LAWS AFFECTING I N T E R S T A T E COMMERCE, 1850-90 VI. T H E BEGINNING OF EXTENSIVE

86 CONGRES-

SIONAL ACTION VII. COMMERCE AMONG T H E SEVERAL

110 STATES

FROM T H E VIEWPOINT OF F E D E R A L POWER VIII. T H E POWER TO R E G U L A T E

126 156

IX. COMMERCE AMONG T H E SEVERAL STATES FROM T H E VIEWPOINT OF S T A T E POWER

.

182

X. T H E WILL OF CONGRESS AND S T A T E LAWS AFFECTING I N T E R S T A T E COMMERCE

.

.

202

xii

CONTENTS

XI. S T A T E ACTS AS BURDENS ON I N T E R S T A T E COMMERCE

215

XII. CONCLUSION

230

T A B L E OF CASES T A B L E OF LEADING ARTICLES CITED INDEX

243 .

257 263

STATE AND NATIONAL POWER OVER COMMERCE

I INTRODUCTION UNDER the Constitution of the United States there is necessarily present the problem of finding bases of division and of coordination of power between the national and state governments. Speaking at the beginning of the Constitutional Convention in 1787, Governor Randolph of Virginia declared that "the National Legislature ought to be empowered to enjoy the Legislative rights vested in Congress by the Confederation and moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." 1 T h u s in presenting to the framers of the Constitution the problem of federalism, he set forth a broad suggestion as to its solution. Much legislative and judicial history has been made between the time at which Governor Randolph expressed his views, and the present. T h r o u g h o u t these years the maintenance of a nice adjustment between the states and the nation, during changing circumstances and in answer to fluctuating demands, has been an ever present task. T h e pathetic ineffectiveness of the central authority under the Articles of Confederation, as well as harmful commercial rivalries between the states, furnished compelling reasons for change in the form of government. A t the same time an example was presented of evils which were to be avoided. T h e fathers of the Constitution struggled to reconcile the demand for national vigor on the one hand, with the insistence on the other that there be protection of liberties from any power so ' I . FARRAND, RECORDS OF THF. FEDERAL CONVENTION CONSTITUTIONAL

HISTORY

OF THE

UNITED

STATES

( 1 9 1 1 ) 21: MCLAUGHLIN,

(1935)

156. T h i s

has

been

A de-

scribed as "the only sound and workable principle by which the powers of nation and states could be divided." Cushman, Social and Economic Control Through Federal Taxation (1934) 18 MINN. L. REV. 759. See Grant, Commerce, Production, and the Fiscal Powers of Congress (1936) 45 YALE L. J. 751.

4

INTRODUCTION

great as to offer a constant threat to freedom. Jealousies were rampant and liberty had been too strenuously won to be readily endangered. T h e Constitution presented a great compromise. T h i s was necessary for its adoption. T h e government set up thereby was not so strong as to alienate those states fearful of oppression, nor so weak as to disgust those persons desiring a government which could govern. Notable among the means of creating a nation instead of a confederation was the commerce clause. 2 Yet even in the application of this great unifying power the forces of compromise have ever been apparent. T h e maintenance of powers in the states has been deemed a restraint upon the national power. 3 If this had not been true, the commerce power would have been sufficient to eliminate all substantial semblance of rights in the states. T h e purpose here is to trace the course of judicial interpretation of the commerce clause, so far as it relates to commerce among the several states. T h a t interpretation has presented notable changes. It is obviously inaccurate to treat the successive cases on one level, as if the decisions had been handed down on the same day or at the same term of court, and to try to fit all into one symmetrical pattern. Recognition of this changing interpretation is implicit in the recent words of Chief Justice Hughes: If by the statement that what the Constitution meant at the time of its adoption it means today, it is intended to say that the great clauses of the Constitution must be confined to the interpretation which the framers, with the conditions and outlook of their time, would have placed upon them, the statement carries its own refutation. 4 T h e Constitution left open to the Court broad opportunities for construction. American Constitutional law throughout its " U n i t e d States Constitution, A r t . 1, Sec. 8: " T h e Congress shall have power to regulate commerce with foreign nations, and a m o n g the several states, and with the I n d i a n T r i b e s . " ' H a m m e r v. Dagenhart, 247 U.S. 251 (1918); A . L . A. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935); United Slates v. Butler, 297 U.S. 1 (1936). • H o m e B u i l d i n g a n d L o a n Association v. Blaisdell, 290 U.S. 398, 442-43 (>934).

INTRODUCTION

5

history exhibits extensive use of these opportunities. Changing construction is manifestly affected by innumerable factors. These factors are present in economic forces, in social and ethical ideals, in outstanding individuals whose personalities have marked the law, and in other ways. T h e effort is not made here to consider the interacting forces, social, economic, political, merely human, or whatever they may be, which have shaped the law, but rather the effort is to consider the law which they have shaped. It will from time to time be useful to make brief reference to some forces which seem particularly important. In view of the scope of this study, such references will necessarily be sharply limited. CHANGING

THEORIES

AS TO S T A T E

POWER

AND

INTERSTATE

COMMERCE

T h e early history of the commerce clause was characterized by judicial rather than by legislative activity. In the early period the Court was engaged in exploring the meaning of the clause and in determining its effect upon the division of power between the states and the central government. Congress had not begun to use its power to any considerable degree. T h e condition of the country did not at first require extensive regulation of commerce. T h a t condition may be easily overlooked. It becomes difficult to think of central New York and of the areas west of the Alleghenies as being newly occupied by white men a century and a half ago. 5 One reads with interest of J o h n Marshall's boyhood in a frontier cabin in the eastern foothills of the Blue Ridge Mountains of Virginia. 0 At the close of the Revolution, America was still about 90 percent agricultural. 7 T h e farms and small communities were largely self-contained units, requiring little of material goods from the outside world. T h e change in the •'POUND, THE SPIRIT OF THF. COMMON LAW ( 1 9 2 1 ) 1 1 2 . • 1 BKVKRII*;»:, THF. LIFE OF JOHN MARSIIAIJ. (1916) 35. Il has been said: " T h e frontier was perhaps the most important molding influence in American l i f e . " ADAMS, T H E EPIC OF AMERICA (1931) 1 1 2 . For a consideration of its influence on American law see POUND, op. cit. supra note 5, at 1 1 2 fl. 7 ADAMS, op. cit. supra note 6, at 97.

INTRODUCTION

6

North from agriculture to industry began to gain momentum about the close of the eighteenth century. T h e cotton gin was invented in 1792, and the invention, which added tremendously to the profit from growing cotton, contributed largely to the retention and development of agriculture as the predominant economic activity in the southern states. 8 At the beginning of the nineteenth century the population was widely scattered and the roads that existed were extremely bad. For example, Fiske, in describing travel from Boston to New York at the close of the Revolutionary W a r said: " A f t e r a week or ten days of discomfort and danger the jolted and jaded traveller reached New Y o r k . " 9 If distance be measured by the time required for the movement of persons and property, the distance from Philadelphia to Georgia was as great in 1800 as the distance from Philadelphia to Hindustan is today. T h e r e is small wonder that Madison could write in 1786: "Of the affairs of Georgia I know as little as of those of Kamskatka." 1 0 T h e r e was, of course, consistent development from the life of isolation. Yet the growth of inland commerce was slow. Of the situation in 1824 Henry Clay said, " T h e country has scarcely an interior." 1 1 In 1 8 3 1 the first railroads were successfully operated by steam, and in 1834 the first through railroad between New York and Philadelphia was opened. 1 2 Greater growth and commercial development of the country was necessary to create the demand for extensive federal regulation of commerce. N o definite date can be fairly assigned to this increased Congressional activity. T h e increase gradually gained momentum with the industrialization of certain sections of the country and the growth of inland trade. At the same time Congress was gaining the benefit of the Court's steady exposition of its powers. A most significant date is that of the adoption of the 'Ibid.

113,

"FISKK, 10

114.

THF.

Madison

op. cit. supra "Annals OVER 12

2

CRITICAL

PERIOD

IN

to J e f f e r s o n . A u g .

WARREN,

1786;

2

HISTORY

(1888)

H U N T , WRITINGS,

61.

261;

1

BEVFRIDCE,

note 6, at 285.

181I1

CARRIFRS

AMERICAN

12,

Cong.,

1 s t Sess. V o l .

AND C O R P O R A T I O N S THE

SUPREME

C1907)

COURT

IN

1,

1315; 59,

PRF.NTICE, T H E

FEDERAL

POWER

60.

UNITED

STATES

HISTORY

(1922)

408.

INTRODUCTION

7

Interstate Commerce A c t in 1887. 13 T h i s date will be useful as marking the beginning of the period of greatly increased legislative activity. It is worthy of suggestion that the history of the commerce power will show a decided trend toward confidence in and reliance on legislative and, more recently, administrative bodies for the adjustment of difficulties. T h i s fact may be somewhat obscured at present by recent spectacular failures of ambitious federal statutes which, the Court has felt, transcended the limits of that power. It is not within the scope of this study to seek causes for this trend to legislative control. T h e y are necessarily complex. It may yet be suggested that the idea of natural law discovered by reason, 14 which the courts were competent to apply, the popular Jeffersonian belief in a m i n i m u m of government, 15 the frontier jealousy 16 of the discretion of individuals and the corresponding desire for "a government of laws and not of men," 17 had profound effect upon the attitude toward legislative action in the early history of the nation. Reference has been made to the fact that the early history of the commerce clause was written by the judiciary with but little help or hindrance from Congress. In this judicial period, a doctrinal basis for the division of power over commerce was sought first in the "nature of the power over commerce." Later, " 2 4 Stat. 378. " A s will be seen infra 11 ff., the same idea w a s used to s u p p o r t the e x t e n d e d legislation needed in codification. I n such case the legislature w o u l d be merely giving its sanction to discovered l a w . " " F r o m the b e g i n n i n g of the century d o w n to the o u t b r e a k of t h e C i v i l W a r , Jefferson's theories w e r e the accepted creed of a m a j o r i t y of o u r p e o p l e . " LANDON, T H E

CONSTITUTIONAL

HISTORY

AND G O V E R N M E N T

OF T H E

UNITED

STATES

(2d ed. 1905) 137. " F o r the sixty years f o l l o w i n g the i n a u g u r a t i o n of Jefferson, the prevailing p a r t y in the c o u n t r y , by w h a t e v e r n a m e it was called, was largely d o m i n a t e d by Jeffersonian p r i n c i p l e . T h a t p r i n c i p l e m a y b e expressed thus, ' W e are g o v e r n e d too m u c h , let us alone.' " Ibid. 166. 18 See POUND, op. cit. supra note 5, at 119 ff. " I n accord w i t h the idea of " s u p r e m a c y of l a w , " infra 10 ff., a government of laws m i g h t w e l l c o n t e m p l a t e that the vast m a j o r i t y of the r u l e s for controlling h u m a n c o n d u c t a n d for the settlement of disputes s h o u l d b e those ascertained by the courts by the exercise of reason, i n accord w i t h the l a w of nature. T h e process of the court, i n a c c e p t a b l e theory of t h e time, d i d n o t involve exercise of the discretion of i n d i v i d u a l s b u t t h e a p p l i c a t i o n of e x i s t i n g

law.

8

INTRODUCTION

the "nature of the power" was deemed too theoretical. With a desire to approach more closely to what had come to be regarded as the realities of the situation, the Court turned to the "subjects of the power" over commerce as furnishing a guide. T h e new doctrine was itself subject to modification. And Congress by degrees became more active in commerce matters. T h u s the "will of Congress" was accepted as a vital factor in determining the scope of state power in the field of interstate commerce. This development did not, of course, allow Congress to define its own power under the commerce clause. But, when the matter in question was deemed to be within the area of the congressional power, the Court began to invoke the "will of Congress" in determining what the states would be permitted to do. This will was found in the silence of Congress as in its voice. Its fictitious aspect is apparent. Into this idea of the "will of Congress" as well as into the conception of "burdens" on interstate commerce were fitted limitations on state power. Constant mention of the intent of the legislature and of the intent of the framers of the Constitution may suggest that these bodies had but a single meaning with reference to the expressions they employed. Actually it is clear that the members of Congress, or even the majority of a q u o r u m necessary to enact a statute, were never in perfect agreement as to what the statute meant. This is even clearer when the nine justices of the Supreme Court fail to agree on a meaning. Reliance is necessarily placed upon the postulate of statutory construction that there is one will ascertainable and to be ascertained in the expressions used. In dealing here with the will of Congress reference is made to an interpretation of what Congress has done and to the greatly increased importance of the choice or will of Congress in determining the possibilities of action left open to the states. N A T U R A L L A W CONCEPTS AND THE EARLY INTERPRETATION OF THE C O M M E R C E CLAUSE

T h e early interpretation of the commerce clause was to a very large extent affected by the concepts of natural law in vogue at the time of and succeeding the adoption of the Con-

INTRODUCTION

9

stitution of the United States. So great has been this effect that it is not an unwarranted digression to refer briefly to those concepts and to point to their place in Marshall's opinions. This may serve to clarify initial ideas with reference to the commerce power, from which later doctrines have been derived. It was wholly in accord with the natural law philosophy of the eighteenth century that there should be reliance on the "nature of the power" over commerce. It was to the "nature of the power" that Marshall constantly looked and upon it he continually relied. T h e consequences of that reliance will appear in the law of today. This is not to seek to explain Marshall's genius by means of the intellectual fashions of his time, but to recognize that his genius found expression in accord with those fashions. It is fair to say that a philosophy of law has more than ordinary effect when a new branch of the law is in the making. 18 " T h e complaint is made that general philosophical ideas are likely to hang on in the decisions after they have been abandoned elsewhere. For example, in some o£ the comparatively recent cases involving liberty of contract the courts seem often to have worked with the concept of an abstract individual possessing free will and entitled to the maximum exercise of this free will consistent with a similar exercise by others. Lochner v. New York, 198 U.S. 45 (1905); Adair v. United States, 208 U.S. 161 (1908); Coppage v. Kansas, 236 U.S. 1 (1915); Pound, Liberty of Contract (1909) 18 YALE L. J. 454; Frankfurter, Hours of Labor and Realism in Constitutional Law (1916) 29 HARV. L. REV. 353. Cf. Adkins v. Children's Hospital, 261 U.S. 525 (1923); Tyson v. Banton, 273 U.S. 418 (1927); Ribnik v. McBride, 277 U.S. 350 (1928). Many of the later cases indicate a changing attitude toward the abstract individual, whose liberty to contract as he saw fit was the subject of great concern in the earlier decisions. See McLean v. Arkansas, 211 U.S. 539 (1909); Erie Ry. v. Williams, 233 U.S. 685 (1914); Bunting v. Oregon, 243 U.S. 426 (1917) overruling Lochner v. New York, supra; O'Gorman and Y o u n g v. Phoenix Fire Insurance Co., 282 U.S. 251 (1931). T h e legal philosophy exhibited in judicial opinions cannot be expected to be in complete alignment with the latest fashions in philosophical thought, even if that were deemed desirable, unless those fashions have been relatively constant and uniform over a period of time. W i t h the multiplication of precedents there is likely to be a constant widening of the gap between the two, as the later judges rely on expressions in the earlier cases. T h u s Justice Harlan, in 1905, could deduce principles from "the essential nature of free governments" (Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 252) while relying on similar deductions made by Mr. Justice Miller in 1875 (Loan Association v. Topeka, 20 Wall. 655, 662). T h e latter Justice was so sure of his ground that he did not deem it necessary to cite authority, yet his idea is discernible in the statements of Mr. Justice Story in 1815 in Gerreth v. Taylor,

INTRODUCTION

io

W h e n courts are confronted by an absence of precedents and must proceed unguided or unfettered by more or less authoritative decisions, they may be expected to turn more readily to general considerations and to be more greatly affected by broad conceptions of the law, in regard to its basis, purposes and techniques. 1 9 In the period under consideration, and particularly at its inception, there was widespread agreement among courts and lawyers with regard to these conceptions. By reason of this agreement, their effect is the more pronounced and the more readily discernible. T h e conception of natural law, generally accepted by courts and lawyers at the beginning of the American

Constitution,

involved the belief in an ideal and eternal law derived

not

from enactment nor from being declared by magistrates but from the very nature of things, that is from nature

itself. 20

Fundamental principles, of universal validity, could be discovered from human nature by the exercise of reason. From these fundamental principles it was thought possible to deduce for the governance of human conduct a complete set of rules, forming a perfect structure of law without inconsistencies or gaps. It was in the province of the jurist to discover these principles.

9 C r a n c h 43, 49 5 1 ; of C h i e f Justice M a r s h a l l in 1810 i n F l e t c h e r v. P e c k , 6 C r a n c h (U.S.) 87, 135; a n d of M r . Justice C h a s e in C a l d e r v. B u l l , g D a l l a s 386-89 (1798). J® " I t is in p e r i o d s of g r o w t h , p e r i o d s in w h i c h t h e l a w is fluid, p e r i o d s i n w h i c h an i n f u s i o n of ideas f r o m w i t h o u t is m a k i n g over t h e law, that p h i l o s o p h y has p l a y e d a l e a d i n g r o l e in legal h i s t o r y . " POUND, op. cil. supra n o t e 5, at 149. D e a n P o u n d considers t h a t the p e r i o d f r o m t h e R e v o l u t i o n to t h e C i v i l W a r was not a p e r i o d of g r o w t h of t h e l a w , b u t r a t h e r a p e r i o d of a d a p t a t i o n . —Ibid. B u t see P o u n d , Mechanical Jurisprudence, (1908) 8 COL. L. REV. 6 1 1 , 612. T h e r e f e r e n c e w a s to A m e r i c a n law in g e n e r a l . In t h e p a r t i c u l a r i n s t a n c e of A m e r i c a n C o n s t i t u t i o n a l law t h e p e r i o d was necessarily o n e of g r o w t h . " T h e c e n t r a l idea u n d e r l y i n g all a p p l i c a t i o n s of t h e t e r m " L a w of N a t u r e " is " t h a t of a n u l t i m a t e p r i n c i p l e of fitness w i t h r e g a r d t o t h e n a t u r e of m a n as a r a t i o n a l a n d social b e i n g , w h i c h is, or o u g h t to be, t h e j u s t i f i c a t i o n o f every f o r m of p o s i t i v e l a w . " POLLOCK, ESSAYS IN THF. LAW (1922) 31. " I t s d o c t r i n e , p u r g e d of clericalism, h a d been a s s i m i l a t e d , t h r o u g h G r o t i u s and his successors by t h e m o d e r n L a w of Nations, a n d h a d t h e n b e c o m e p a r t of t h e c o m m o n stock of the e i g h t e e n t h c e n t u r y p u b l i c i s t s . In that f o r m it w a s accepted w i t h o u t d e m u r by rationalist p h i l o s o p h e r s w h o w o u l d h a v e s c o r n e d to be b e h o l d e n to t h e M i d d l e A g e s ."—Ibid. 60.

INTRODUCTION Once discovered, the rules deduced from them should be embodied into a code by legislative action. 21 Coincident with the idea of natural law in the eighteenth and nineteenth centuries was that of natural rights. This doctrine was widely accepted in Europe and in England. It declared the existence of certain rights, inherent in man by his nature, which rights were discoverable by reason. These rights were secured by natural law.22 They were not derived from monarchs, from states, nor from any organization of society. 21

POUND, op.

cit.

supra

n o t e 5, at

95,

145,

146;

POUND, A N

INTRODUCTION

TO

THE PHILOSOPHY OF LAW (192a) 46, 48. T h e law o£ nature permitted a convenient identification of what ought to be with what is. See Corwin, The Higher Law Background of American Constitutional Law (1929) 42 HARV. L. REV. 166; POUND, op. cit. supra note 5, at 95, 96. In this connection the following quotation from Berolzheimer is useful: " T h e advocates of natural law found the doctrine well adapted to their political views and position; for apart from the fact that no other serviceable formula was available, it permitted the assumption of any number of prerogatives and privileges as natural rights lying within the scope of the primitive social compact, thus supporting the political positions it was important to justify." BEROLZHEIMER, THE WORLD'S LEGAL PHILOSOPHIES (Lastrow's English trans., 1912) 21. A n d see HAINES, THE REVIVAL OF NATURAL LAW CONCEPTS (1930) 65, at note 3: "Eighteenth century natural law developed anti-social tendencies by making the individual conscience the ultimate arbiter of political and legal obligations." Sir Frederick Pollock has written of natural law: "It never meant (as some later writers have assumed) the arbitrary speculative opinion of an individual as to what is right and wrong. Positive morality may be, and in many times and places is known to have been or still to be, contrary to universal morality or natural law. T h e supposed duty of a Hindu widow to burn herself with her husband's corpse is a striking example." POLLOCK, A FIRST BOOK OF JURISPRUDENCE (6th ed. 1929) 13. It is, of course, true that natural law never meant the arbitrary or speculative opinion of an individual. Yet to the jurist who advanced an opinion honestly and to his followers it was neither arbitrary nor speculative. T o them the opinion might well be the expression of a principle which comprised part of the ideal law based on the nature of man as a rational being. Others might disagree with them just as we would be inclined to disagree with the Hindu widow. T h e fact that there was a preponderant opinion on any proposition was not conclusive on all that the opinion was a perfect expression of natural law. T h e dissenter might still dissent and fervently believe that it was he who perceived accurately. 22 POUND, op. cit. supra note 21, at 42. For an identification of the fundamental law spoken of by Lord Coke as superior to the Crown with natural law, and a similar identification of the common-law rights of the Englishmen with natural rights, see POUND, op. cit. supra note 5, at 61, 95. See also POLLOCK, op. cit. supra note 20, at 53, 58. In the latter passage Sir Frederick Pollock suggests, in accord with a statement in the preliminary part of DOCTOR AND STUDENT, that "where the canonist or civilian would speak of the Law of Nature, the common lawyer speaks of reason."

INTRODUCTION

12

W h i l e t h e i r o r i g i n w a s t h u s i n d e p e n d e n t of p o l i t i c a l l y

organ-

ized s o c i e t y , y e t s u c h s o c i e t y m u s t a f f o r d p r o t e c t i o n t o t h e m a n d an o p p o r t u n i t y for their The

theory

of

natural

enjoyment.23 rights was vital

in

the

method

of

d e t e r m i n i n g the law. A s D e a n P o u n d has p o i n t e d o u t : To

the

law

of

nature

school,

lawmaking

d e v e l o p m e n t of absolute principles. A

was

but

complete

an

absolute

logical

develop-

m e n t of the content i m p l i c i t in each n a t u r a l r i g h t w o u l d g i v e a body of l a w a d e q u a t e to every time a n d place. 2 4 T h e t h e o r y w a s , t h e n , o n e of d i s c o v e r y o f t h e l a w i n l a w m a k i n g , as w e l l as in t h e a p p l i c a t i o n of t h e l a w . T h e l a w w a s " a b r o o d i n g o m n i p r e s e n c e in t h e s k y , "

25

to b e b r o u g h t to e a r t h b y sheer

force of reason. English

and

Continental

theories

were

disseminated

A m e r i c a l a r g e l y t h r o u g h t h e m e d i u m of B l a c k s t o n e ' s taries.26

in

Commen-

T h e acceptance of the theory of the l a w of n a t u r e a n d

* POUND, op. cit. supra note 21, at 83. For discussions, with numerous citations, of the frequent reliance 011 natural rights and natural law in American law see CORWIN, T H E

T W I L I C H T OF T H E S U P R E M E C O U R T

(1934)

102

ff.; G r a n t ,

The

Natural Law Background of Due Process (1931) 31 COL. L. REV. 56; Grant, The "Higher Law" Background of the Law of Eminent Domain (1931) 6 Wis. L. REV. 67; Corwin, supra note 21; Harper, Natural Law in American Constitutional Theory (1927) 26 MICH. L. REV. 60; Haines, The Law of Nature in State and Federal Judicial Decisions (1916) 25 YALE L. J . 617; Pound, supra note 18. 24 POUND, op. cit. supra note 21, at 92, 93. " T h e familiar phrase is from the dissenting opinion of Mr. Justice Holmes in Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917). " T h e common law is not a brooding omnipresence in the sky." "POLLOCK, op. cit. supra note 20, at 101; Pound, op. cit. supra note 5, at 150. T h e COMMENTARIES were published in Amcrica in 1771-72. About 1400 copies were ordered in advance, and about 1.000 copies had been imported from England prior to this publication. WARREN, A HISTORY OF THE AMERICAN BAR ( 1 9 1 1 ) 178. One of the original subscribers to the American edition was the father of John Marshall. 1 BEVERIDCE, op. cit. supra note 6, at 56. Blackstone wrote of the law of nature: " I t is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this; and such of them as are valid derive all their force and all their authority, mediately or immediately from the original." COMMENTARIES, 41. In a subsequent passage (page 160) he wrote of Parliament: "It hath sovereign and uncontrollable authority in the making . . . and expounding of laws . . . this being the place where that absolute despotic power, which must in all governments reside somewhere, is intrusted by the constitution of these kingdoms." T h e apparent later inconsistencies with the exposition of the law of nature

INTRODUCTION

13

of natural rights was at first most apparent in political discussions and documents. 27 T h u s John Adams wrote of individual rights as founded "in the frame of human nature, rooted in the constitution of the intellectual and moral world" and derived from " T h e Great Legislator of the Universe." 28 And the glowing language of the Declaration of Independence begins with the words: "When in the course of human events, it becomes necessary for one people to dissolve the political bonds which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the laws of nature and of nature's God entitle them." In writing the Declaration of Independence, Jefferson was expressing in vigorous form ideas which were common property. He did not profess to do more than this. These ideas had been drawn largely from Locke. 29 Similarly, principles sponsored by set f o r t h in the earlier chapters of the COMMENTARIES s u p p o r t the observations of Sir Frederick P o l l o c k , that B l a c k s t o n e used t h e law of n a t u r e only f o r purposes of o r n a m e n t i n g the i n t r o d u c t o r y chapters. POLLOCK, op. cit. supra note 20, at 60. Professor Corvvin has w r i t t e n : " N o r is Blackstone's a p p e a l to a l l men of all parties difficult to u n d e r s t a n d . E l o q u e n t , suave, u n d i s m a y e d in t h e presence of p a l p a b l e contradictions i n his pages, a d e p t i n i n s i n u a t i n g n e w points of view w i t h o u t unnecessarily d i s t u r b i n g o l d ones, h e is t h e very exemplar a n d m o d e l of legalistic a n d j u d i c i a l o b s c u r a n t i s m . " C o r w i n , supra note 21, at 405. O n t h e inconsistencies i n B l a c k s t o n e see POLLOCK, op. cit. supra note 20, at 267 ff. 21

See

MERRIAM,

AMERICAN

POLITICAL

THEORIES

(1903)

48

et

seq.;-

Corwin,

supra note 21, at 401. 28 Q u o t e d in MERRIAM, op. cit. supra note 27, at 48. 28 See POLLOCK, op. cit. supra note 20, at 102; C o r w i n , supra note 21, at 383 ff. BEROLZHEIMER, op. cit. supra note 21, at 135; MCLAUGHLIN, op. cit. supra n o t e 1, at

31,

94-98,

100

ff.;

Shepard

in

BARNES,

THE

HISTORY

AND

PROSPECTS

OF

THE

SOCIAL SCIENCES (1925) 415 wrote: " T h e theoretical justification of the A m e r i c a n Revolution, p a r t i c u l a r l y as it is e m b o d i e d in the D e c l a r a t i o n of I n d e p e n d e n c e , draws heavily o n L o c k e , a n d in E n g l a n d itself L o c k e ' s ideas a c h i e v e d an almost universal acceptance." A m o n g the F r e n c h publicists, M o n t e s q u i e u , i n p a r t i c u l a r , s h o u l d be m e n tioned as affecting A m e r i c a n political ideas a n d ideals. T h e threefold division of g o v e r n m e n t a l p o w e r (legislative, e x e c u t i v e , a n d judicial) was accepted as f u n d a m e n t a l by t h e f r a m e r s of t h e A m e r i c a n Constitution and by the framers of the constitutions of t h e states. See S h e p a r d in BARNES, op. cit. supra note 29, at 417; THE FEDERALIST, nos. 46-50. F o r a m o d e r n discussion of this division see KOCOUREK, AN INTRODUCTION TO THE SCIENCE OF LAW (1930) 92 et seq. M o n t e s q u i e u t h o u g h t that t h e p r o t e c t i o n of t h e citizen against tyranny was to be secured m e c h a n i c a l l y , as t h o u g h officials w e r e

»4

INTRODUCTION

Locke appear in the Bills of Rights of the several colonies, notably in the Bill of Rights of Virginia. Recognition by courts and counsel in America of the law of nature and of natural rights were general in the period under consideration. 30 References are plentiful. 3 1 Thus, for example, George Mason as counsel had argued, "the laws of nature are the laws of God; whose authority can be superseded by 110 power on earth." 32 Chancellor Wythe, the law teacher of John Marshall, 33 wrote: "Without society, mankind, if they could exist and propagate, would be wretched; their native rights would be frequently violated; . . . hence the obligation to observe and conform to those [civil] institutions and regulations, by the law of nature devolves on men." 34 A striking declaration of faith from one in high judicial position was made by Mr. Justice Johnson in his opinion in Fletcher v. Peck: 3 5 I do not hesitate to declare, that a state does not possess the power of revoking its own grants. But I do it on a general principle, on the reason and nature of things; a principle which will impose laws even on the deity. A n d in the same case Marshall, delivering the opinion of the Court, gave at least qualified recognition to the law of nature: " I t may well be doubted, whether the nature of society and of government does not prescribe some limits to the legislative power." 36 machines, and laws, physical instruments. BEROLZHEIMER, op. cit. supra note 21, at 143. 30 POUND, op. cit. supra note 5, at 149. See the articles cited, supra note 23, wherein are collected many examples from American decisions. 31 Supra note 23; infra notes 32, 34, 35, 36. See Sturges v. Crowninshield, 4 Wheat. 120, 146, 156, 157 (1819). " J e f f e r s o n (Va.) 114 (1772). " C h a n c e l l o r Wythe made a distinguished record as a lawyer, judge, and teacher. See WARREN, op. cit. supra note 26, at 343 ff. Marshall studied under him at William and Mary College for about six weeks, 1 BEVERIDGE, op. cit. supra note 6, at 155. It is not suggested that Marshall acquired much of the doctrine of the law of nature in this time. Note to Page v. Pendleton, Wythe (Va.) 2 1 1 , 214, 215 (1793). » 6 Cranch (U.S.) 87, 143, (1810). "Ibid. 135. Reference has already been made to the acceptance of the law

INTRODUCTION

15

The common law tradition admitted of a theory of law as involving the declaration of natural rights by the exercise of reason. The civil law is even better adapted to the logical development of abstract principles. 37 In this connection the high favor in which French ideas were held in the early nineteenth century and the widespread approval of the civil law are material.38 The early interpretation of a constitution lends itself parof nature in England as well as in Europe. T h e suggestion was taken from Sir Frederick Pollock and from St. Germain in DOCTOR AND STUDENT that where the civilian spoke of the law of nature, one dealing with the common law would probably speak of reason. T h e unpopularity of the term " l a w of n a t u r e " was attributed to its ecclesiastical associations. Y e t it does appear in English common law. Calvin's Case, 7 Co. 1, 4b (1610). See POLLOCK, op. cit. supra note 20, at 54 ff. It is worthy of comment that the reason of the common law, which is made the test of positive law, was not always identical with the right reason of the Continental jurists; that is, the right reason by means of which was discovered the ideal and eternal law which was, itself, reason. Corwin, supra note 21, at 172. T h e latter was the right reason of wise men. T h e former was referred to by Coke in the familiar expression " t h e artificial reason and judgment of the law." Its technical character was suggested by Dean P o u n d in the statement, " M e n are not born with intuitions of the means by which justice may be attained." POUND, op. cit. supra note 5, at 82. T h u s the reason of the common law customarily referred to was a reason of experts, skilled in perceiving the analogies in precedents and in using these analogies as well as the other materials of the legal system. T h e individual untrained in the law, though he have the wisdom and intelligence which Coke must needs diplomatically ascribe to James I, would not be qualified to decide legal controversies. S e e 5 HOLDSWORTH'S H I S T O R Y OF E N G L I S H L A W

( 1 9 2 4 ) 4 2 9 ff.

" P o u n d , The Place of Judge Story in the Making of American Law (1914) 48 A M . L . R E V . 676, 690. 38 See WARREN, op. cit. supra note 26, at 2 1 2 , 224 ff., 508; Pound, supra note 37, at 676 ff. A n example of this attitude towards the French and French law is given by Chancellor Kent, writing of the New York Court: " T h e judges were Republicans and very kindly disposed to everything that was French and this enabled me without exciting any alarm or jealousy to make free use of such authorities and thereby enrich our commercial l a w . " Quoted in WARREN, op. cit. supra note 26, at 227, 228. In view of the attitude apparently assigned rather generally to Republicans, it is interesting to note the political complexion of the Supreme Court. A t the time of McCulloch v. Maryland, 4 Wheat. 3 1 6 (1819), for instance, there were five Republicans in the Court (Johnson, Livingston, T o d d , Duval and Story) and two Federalists (Marshall and Washington). 1 WARREN, op. cit. supra note 12, at 509. See also the argument of counsel in Sturges v. Crowninshield, 4 Wheat. 120, 156 (1819) where reference was made by Hunter to "the civil law, perhaps the most exact, consistent and comprehensive code the sagacity of man ever framed and systematized."

i6

INTRODUCTION

ticularly to the method of the civil law. Constitutions are normally designed to contain statements of broad and fundamental principles. Doubtless it was easy to believe that the American Constitution contained a formulation of eternal principles of natural law, from which by logical processes could be deduced rules assigning specific consequences to specific sets of fact. 39 It is worthy of note that the Constitution admits of support by the exponents of either of two conflicting theories. T o those w h o accept the idea of the supremacy of law, it is an expression of the higher law. T o those who accept the political theory of the supremacy of the sovereign, it is an expression of the will of the sovereign, the people. 40 38 T h i s did not require the belief that the Constitution contained a complete statement of the basic principles of natural law. T h u s there are ample evidences in the early cases of the idea that reliance could be placed on natural law, irrespective of the provisions in the Constitution. See supra note 6. 40 Corwin, supra note 21, at 409. Dean Pound summarizes the attitude existing at the end of the eighteenth century as follows: "Men thought it possible to discover a body of fixed and immutable principles, from which a complete system perfect in every detail, might be deduced by purely logical operations, and held it the duty of the jurist to find them and of the legislature to promulgate the deductions in the form of a code. T h e principles also they conceived were to be discovered once for all by reason since they were mere expressions of abstract human nature; they were the principles of reason inherent in the conduct of the abstract individual." POUND, op. cit. supra note 5, at 145, 146. See ibid. 95; Pound, supra note 37, at 691.

Belief in the possibility of a determination of law which would be substantially complete and of ready application underlies the popularity of codes at the beginning of the nineteenth century. T h u s Bentham wrote: " T h a t which we have need of is a body of law, from the respective parts of which we may each of us by reading them or hearing them read, learn, and on each occasion know, what are his rights and duties." Quoted in WARREN, op. cit. supra note 26, at 515. For comment on the continued use of abstract criteria of general application, see Pound, supra note 18, at 458 ff. T h e classic illustration of a concept of law wherein the lines of distinction are sharply drawn and general criteria readily applied is found in the Massachusetts Bill of Rights. "In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers, or either of them; the executive shall never exercise the legislative and judicial powers or either of them; the judicial shall never exercise the legislative and executive powers, or either of them; to the end that it may be a government of laws and not of men." But cf. THF, FEDERALIST, nos. 46-50. In Sturges v. Crowninshield, 4 Wheat. 120, 156 (1819) counsel (Hunter) relied on Locke as follows: "Locke, in endeavoring to prove that the principles of morals are susceptible of as strict demonstration as those of mathematics, say . . . we can as certainly

INTRODUCTION

17

Maryland,41

McCulloch v. though not involving a commerce problem, furnishes excellent illustrations of the search for and reliance upon abstract criteria of general application for the solution of constitutional problems. T h e case involved the questions (1) whether Congress had the power to incorporate a bank, and (2) granted Congress had the power, whether the states could tax a bank so incorporated. Marshall said of the work of counsel: "Both in maintaining the affirmative and the negative, a splendor of eloquence and a strength of argument seldom, if ever, surpassed, have been displayed." 42 In argument Daniel Webster said: " A question of constitutional power can hardly be made to depend on a question of more or less." 4 3 T h e Attorney General of the United States expressed the same idea: Another not less inadmissible consequence of this construction [of the word "necessary" in the "necessary and proper" clause of the Constitution] is, that it is fatal to the permanency of constitutional powers; it makes them dependent for their being on extrinsic circumstances, which, as these are perpetually shifting and changing must produce correspondent changes in the essence of the powers on which they depend. But surely the constitutionality of an act of Congress cannot depend on such circumstances. They are the subject of legislative discretion, not of judicial cognizance.44 An idea of abstract and lasting divisions of power seems to underlie other statements. Pinkney, supplementing an argument know these propositions to be true, as that a triangle has three angles equal to two right angles." LOCKE'S WORKS, lib. 4, 258 (fol. ed.). Wheat. 316 (1819). "Ibid. 426. Beveridge wrote: " A l l told the counsel for both sides were the most eminent and the most distinguished in the republic." 4 BEVERIDGE, op. cit. supra note 6, at 285. " M c C u l l o c h v. Maryland, 4 Wheat. 316, 327 (1819). Compare this with an extract from an argument by Daniel Webster, made twenty years later: " W e have no second Laplace, and we never shall have, with his Mechanique Politique, able to define and describe the orbit of each sphere of our political system with such exact mathematical precision. T h e r e is no such thing as arranging these governments of ours by the laws of gravitation, so that they will be sure to go on forever without impinging." Bank of August v. Earle, 13 Pet. 519, 549 (1839). " M c C u l l o c h v. Maryland, 4 Wheat. 316, 355

(1819).

INTRODUCTION used by Webster, said: "If this power to tax the national property and institutions exists in the state of Maryland, it is unbounded in extent." 45 This idea received recognition in Marshall's opinion in the famous expression: " T h e power to tax involves the power to destroy." 46 There are no degree limitations implied in this statement, no considerations of the extent and oppressiveness of the tax burden in the particular case. In considering the problem of division of power presented in this case, Marshall said: If we measure the power of taxation residing in a state, by the extent of sovereignty which the people of a single state possess, and can confer on its government, we have an intelligible standard, applicable to every case to which the power may be applied. . . . We are not driven to the perplexing inquiry, so unfit for the judicial department, what degree of taxation is the legitimate use, and what degree may amount to the abuse of the power.47 " I n such a case," said Marshall, 48 in speaking of the efforts of the strict constructionists rigorously to restrict the scope of federal powers, "it is peculiarly necessary to recur to safe and fundamental principles, to sustain those principles, and when sustained, to make them the tests of the arguments to be examined." 49 In the same connection he said: " T h e conclusion to which we have come depends on a chain of principles which it was necessary to preserve unbroken." 50 And in another opinion: "If the principles which we have stated be correct, the result to which they conduct us cannot be mistaken." 5 1 "Ibid. 3 9 1 , 39a. "Ibid. 4 3 1 . See Marshall, C . J . , in Brown v. Maryland, 12 W h e a t . 4 1 9 , 439, (1827): "Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed." T h e Court apparently took judicial notice in McCulloch v. Maryland that a bank was a "convenient, a useful, and essential instrument" in carrying on the fiscal affairs of the government. McCulloch v. Maryland, 4 Wheat. 3 1 6 , 422 (1819). "Ibid. 429, 430. 48 In 1799 Fisher Ames had written of Marshall that he "is too much disposed to govern the world according to the rules of logic." WARREN, op. cit. supra note 12, at 179. A n examination of the arguments of counsel and the opinions of other justices of the Supreme Court will show that this proclivity, so soon assigned to Marshall, was a most common one.

" G i b b o n s v. Ogden, 9 W h e a t . 1, 222 (1824). 60 a Ibid. Brown v. Maryland, 12 Wheat. 4 1 9 , 448

(1827).

INTRODUCTION

»9

One may pause to inquire how "safe and fundamental principles" are found and how they are recognized. Certainly the fundamental principles for Jefferson were quite different from those for Marshall. Yet Court and counsel alike sought for fundamental principles in their concepts of the nature of free governments, the nature of powers granted by the Constitution and in natural rights. In ascertaining the nature of powers, the objects of the grant and the intent of the framers of the Constitution were, of course, most material. It remains to view the ascertainment and application of safe and fundamental principles to the power over commerce.

II MARSHALL

AND

POWER

THE

OVER

NATURE

OF

THE

COMMERCE

THE supremacy of the federal government within the scope of the powers conferred on it by the Constitution has never been successfully questioned. Marshall expressed this supremacy most e m p h a t i c a l l y i n McCulloch

v. Maryland:

If any one proposition could command the universal assent of mankind, we would expect it would be this — that the government of the Union, though limited in its powers, is supreme within its sphere of action. This would seem to result necessarily from its nature.1 It is also elementary that the federal government is one of delegated powers, and that the states or the people retain the powers originally possessed except in so far as they have been granted to the United States or their exercise has been prohibited to the states by the Constitution. 2 From this it will 1 4 W h e a t . 316, 405 (1819). See Penhallow v. Doane, 3 Dall. 54 (1795); W a r e v. H y l t o n , 3 D a l l . 199 (1796); U n i t e d States v. Peters, 5 Cr. 115 (1809); M a r t i n v. H u n t e r ' s Lessee, 1 W h e a t . 304 (1816); Cohens v. Virginia, 6 W h e a t . 264 (1821); Elkison v. Deliesseline, 2 W h e e l . Cr. Cas. 56, Brunner, C o l . Cas. 431, Fed. Cas. 4, 366 (1823). B u t cf.: the opinion of Mr. Justice M c L e a n in the License Cases, 5 H o w . 504, 588 ff. (1847). I n referring to the power of a state to care for the safety a n d h e a l t h of its people, he said (at 589), " I t is indeed the law of nature."

For a consideration of the doctrine of nullification see I VON HOLST, THE CONSTITUTIONAL AND POLITICAL HISTORY OF THE UNITED STATES (1877) 138 FF.; 4 WOODROW WILSON, A HISTORY OF THE AMERICAN PEOPLE (1902) 24 FF.; MINOR, NOTES ON GOVERNMENT AND STATES RIGHTS (1910) passim; ADAMS, THE EPIC OF AMERICA (1931) 134, 142, 203. 2 United States Constitution, A m e n d m e n t X . President T h e o d o r e Roosevelt advocated the theory that whenever the Constitution does not prohibit federal action, the federal government can regulate all such matters as are of national importance a n d beyond the control of the states. See C u s h m a n , The National Police Power under the Commerce Clause of the Constitution (1919) 3 MINN. L. REV. 292 ff. U n d e r this theory, attributed originally to James Wilson of Pennsylvania, there w o u l d be no gaps in the combined jurisdictions of the states and the federal government. It is interesting to note that it involves, in part, a

JOHN MARSHALL

21

appear that convenience of procedure, in any consideration of the division of power between the federal and state governments, suggests that attention be directed first to the extent of the power granted to the federal government and then to the effect of that grant on the power left with the states. These two questions are, of course, frequently considered together by the courts, so that the attitude on one will affect that on the other. There is, accordingly, an element of artificiality in their separation in a discussion of the work of the courts. THE

FEDERAL

POWER

OVER

COMMERCE

Following this procedure suggested, the early determination of the extent of the federal power over commerce will first be considered. T h e judicial determination of this power begins with Gibbons v. Ogden,3 in which case Marshall was given one of his cherished opportunities to set forth a broad exposition of federal authority. T h e state of New York had granted to Livingston and Fulton the exclusive right, for a period of years, to navigate the waters of New York with steamboats. Ogden and one Thomas Morris acquired from Livingston and Fulton the right to navigate the waters of New York, included in the route from New York City to Elizabethtown, New Jersey. Gibbons operated for the transportation of passengers two steamboats from Elizabethtown to New York City. These boats were licensed under the laws of the United States providing for the enrollment and reversal of the customary procedure. Here the Constitution is looked to f o r a prohibition of federal action. T h e theory has been r e p u d i a t e d by the U n i t e d States Supreme Court. Kansas v. Colorado, 206 U.S. 46, 89, 90 (1907). See 1 W i l LOUGHBY ON THE CONSTITUTION

(2d ed.

1928) 80 ff.

9 W h e a t , i (1824). T h e case is f u r t h e r considered later in this chapter. Marshall had considered the commerce power in some detail in B r i g W i l s o n v. United States, 1 B r o c k e n b o r o u g h 423, 30 Fed. Cas. 239 (C.C., D . V a . 1820). In this opinion he h a d said: " F r o m the adoption of the Constitution, till this time, the universal sense of America has been that the word commerce, as used in that instrument, is to be considered a generic term, c o m p r e h e n d i n g navigation, or, that a control over navigation is necessarily incidental to the p o w e r to regulate commerce." Ibid. 430-31, 30 Fed. Cas. 243. Strangely e n o u g h this case was not relied on by counsel or C o u r t in G i b b o n s v. O g d e n . 3

JOHN

22

MARSHALL

licensing of vessels employed in carrying on the coasting trade. 4 Ogden obtained an injunction against the continued operation of these boats in the waters of N e w York. 5 T h e appellate court in N e w Y o r k having refused to dissolve the injunction,® an appeal was taken to the Supreme Court of the United States. Counsel for the appellant, Gibbons, argued that the N e w Y o r k law was invalid because power over interstate commerce, at least in its "higher reaches," rested exclusively in Congress. T h e y argued further that even if this were not true, and even if the state had a " c o n c u r r e n t " power, yet Congress had acted and the act of Congress was in conflict with the state law. Counsel had thus two strings to their bow. T h e r e is slight room for doubt as to the extent of the holding. 7 It seems clear that the C o u r t considered the actual basis for its decision against the N e w Y o r k monopoly to be an inconsistency between a federal law, validly enacted, and the law of the state of N e w York. 8 4 Act of Congress, Feb. 18, 1793 (1 Stat. 305). T h e exclusive right of Livingston and Fulton is set forth in Laws of New York, 21st Session, ch, C C X V (April 1 1 , 1808). T h e N e w York statute had been before the courts of New York in Livingston v. V a n Ingen, 9 Johns. (N.Y.) r,oy (1812). " O g d e n v. Gibbons, 4 J o h n s . Ch. (N.Y.) 150 (181g). • G i b b o n s v. Ogden, 17 Johns. (N.Y.) 488 (1820). ' T h e doubt has been based on expressions in the opinion and on the form

of

the

decree

of

the

Court.

See

LF.WIS. T U F .

FEDERAL

POWER

OVER

COMMERCE

AND ITS EFFECT ON STATE ACTION (1892) 37. T h e decree stated that the licenses granted under the Act of Congress, passed in pursuance of the Constitution of the United States, gave full authority to navigate the waters of the United States by steam or otherwise, any law of New York to the contrarv notwithstanding. It then proceeded as follows: " S o much of the several laws of the State of New York, as prohibits vessels, licensed according to the laws of the United States, from navigating the waters of the state of New York, by means of fire or steam, is repugnant to the said Constitution, and void." It will be noted that the repugnancy to the Constitution is in the state law which is inconsistent with the federal law. It does not follow that the state law would have been considered repugnant to the Constitution, had there been 110 federal law. See Marshall's statement of " t h e sole question." Gibbons v. Ogden, 9 Wheat. 1, 200 (1824). " T h i s was the construction which M r . Justice Johnson placed upon the opinion of the Court. T h u s , although he concurred in the result, he felt it proper to state his reasons as differing from those of the Court. At 9 Wheat. 222, 2 3 1 , 232 he said: " A n d I cannot overcome the conviction, that if the licensing act was repealed tomorrow, the rights of the appellant to a reversal of the decision complained of, would be as strong as it is under this license." With a broad sweep of expression which is suggestive of Mr. Justice Holmes, he continued: " O n e half the doubts in life arise from the defects of language, and

JOHN MARSHALL

23

Under any theory of the case, the Court must needs give some meaning to the expression, "the power to regulate commerce among the several states." More specifically, it had to determine whether commerce included the transportation of passengers for hire by steamboats. A careful examination of the Court's exposition of the federal power is necessary. T o follow the Court's words, the extent of the federal powers are to be determined from "the language of the instrument which confers them." " T h e subject to be regulated is commerce" and "it becomes necessary to settle the meaning of the word." First, then, comes the Court's exposition of the meaning of "commerce." Commerce includes navigation. 9 T h i s is apparent from the understanding of all America, from one of the primary objects for which the present government was formed, and from the terms of the Constitution itself. T h e exceptions from a power mark its extent. 1 0 T h e r e being in the Constitution exceptions to the power over navigation, it follows that "those who made the exceptions . . . understood the power to which they applied as being granted." 1 1 Counsel for the appellee had argued that commerce was limited to traffic, to buying and selling, or the interchange of commodities. Consequently they had urged that it did not include navigation. 12 T h i s attempt at a narrow interpretation brought forth a sweeping refutation by the Court. if this instrument had been called an exemption, instead of a license, it w o u l d have given a better idea of its character." See, sustaining this construction, T a n e y , C. J . , in the License Cases, 5 H o w . 50.1, 584 (1847). "See B r i g Wilson v. United States, 1 Brockenborough 423, 430, 4 3 1 , 30 F e d . Cas. 239, 243 (C. C. D. Va. 1820). " G i b b o n s v. Ogden, 9 Wheat. 1, 191 (1824). Art. I, Sec. 9 of the Constitution provides: " N o preference shall be given by any regulation of commerce or revenue to the ports of one State over those of another: nor shall vessels b o u n d to, or from, one State, be obliged to enter, clear, or pay duties in another." T h e argument in this particular is certainly not conclusive. It is readily possible that restrictions should be inserted out of an abundance of caution, to make assurance doubly sure. " G i b b o n s v. Ogden, 9 Wheat. 1, 191 (1824). " O a k l e y , seeking to exclude the business of his client from the power of Congress, had said in argument: " T h e correct definition of commerce is the transportation and sale of commodities." Ibid. 76.

JOHN MARSHALL

24

This would restrict a term applicable to many objects to one of its significations. Commerce, undoubtedly, is traffic, but it is something more; it is intercourse. It describes the commercial intercourse between nations, and parts of nations, in all its branches.13 T h e statement that commerce is intercourse has become a part, but only a part, of frequent definitions of commerce. 14 T h e statement offers an excellent starting point for any broad exposition of federal power. It is worthy of note that this expression was thrown in to refute the restricted meaning contended for by counsel for the appellee. It is more important that it was immediately qualified by the word "commercial." T h e term was thus used to show the breadth of the concept "commerce," without any idea that it was a synonym. T h e terms commerce and intercourse have not been considered synonymous in subsequent decisions. For example, insurance has consistently been held not to be commerce. 15 Having demonstrated that commerce includes navigation, Marshall turned his attention to the expression "among the several states." " T h e word 'among' means intermingled with." T h u s "commerce among the several states cannot stop at the external boundary line of each state, but may be introduced into the interior." 18 T h e power of Congress is exercised within the territorial jurisdiction of the states. Yet the power of Congress, limited by the term "among," "may very properly be restricted to that commerce which concerns more states than one." 17 T h e action of the federal government is applied "to those internal concerns which affect the states generally." 18 "Ibid.

189,

190.

" " C o m m e r c e with foreign nations a n d a m o n g the States, strictly considered, consists in intercourse a n d traffic, i n c l u d i n g in these terms navigation and the transportation and transit of persons a n d property, as w e l l as the purchase, sale a n d e x c h a n g e of commodities." C o u n t y of M o b i l e v. K i m b a l l , 102 U.S. 691, 702 (1880). See also Gloucester Ferry Co. v. Pennsylvania, 114 U.S. 196, 203 (1885); M c C a l l v. C a l i f o r n i a , 136 U.S. 104, 108 (1890); W i l l i a m s v. Fears, 179 U.S. 270, 276 (1900); C h a m p i o n v. A m e s , 188 U.S. 321, 351 (1903); H o k e v. U n i t e d States, 227 U.S. 308, 320 (1912). " P a u l v. Virginia, 8 W a l l . 168 (1868): H o o p e r v. C a l i f o r n i a , 155 U.S. 648 (1895); N e w York L i f e Insurance C o . v. Cravens, 178 U.S. 389 (1900). " G i b b o n s v. Ogden, 9 W h e a t . 1, 191 (1824). M / M d . 195. "Ibid. 194.

JOHN MARSHALL

25

" T h e completely internal commerce of a state, then, may be considered as reserved for the state itself." 19 T h e power to regulate is described as the power "to prescribe the rule by which commerce is to be governed." 20 It "acknowledges no limitations other than are prescribed in the Constitution." 2 1 T h e procedure thus adopted initially in expounding the power of Congress is that of taking up individually component parts of the commerce clause for separate interpretation. Following throughout this method, the questions may be stated as follows: (1) What is commerce? and (2) What is the power to regulate? Under (1) would appear the question (a) What commerce is with foreign nations? (b) What commerce is among the several states? and (c) What commerce is with Indian tribes? T o complete this enumeration of the kinds of commerce with which American constitutional law is concerned there should be mentioned that commerce which is not included in the grant of power to Congress: i.e., intrastate commerce. 22 In Gibbons v. Ogden it was not necessary to consider (a) and (c). T h e completely internal commerce of a state was considered by way of contrast with commerce among the several states. This analysis is a simple dissection of the commerce clause. Admitting the usefulness of this analysis in a general discussion of the commerce power, and particularly in the initial interpretation of the commerce clause by the Court, the procedure adopted in Gibbons v. Ogden may yet be considered with a view to its appearance and effect in subsequent decisions and opinions. T h e method used in Gibbons v. Ogden may be 30 "Ibid. Ibid. 196. "Ibid. 197. " Using the term state territorially, obviously much commerce with Indian tribes would lie wholly intrastate. It is not necessary here to comment on the anomalous position of Indian tribes within a state. See Cherokee Nation v. Georgia, 5 Pet. 1 (1831): Elk v. Wilkins, 112 U.S. 94 (1884): United States v.

Sandoval,

231

U.S.

28

(1913):

J.

B.

THAYER,

A

PEOPLE

WITHOUT

LAW,

LECAL

ESSAYS, 91. T h e term "intra state commerce" is consistently used to describe what Marshall referred to as "the completely internal commerce of a state" which "may be considered as reserved for the slate itself." Gibbons v. Ogden, 9 Wheat. 1, 195 (1824). As used it does not include the commerce with the Indian tribes as set forth in the Constitution.

JOHN

26

MARSHALL

construed as giving some support to the implication, apparent in some later decisions, that there is or may be a satisfactory definition of commerce and of interstate commerce, which definition may be applied in all questions of state and federal power. 23 U n d e r this implication, when a federal statute is to to be tested under the commerce clause, the matter w o u l d involve three separate and distinct questions:

(1) is the subject,

upon which the statute acts, interstate commerce?

24

(2) is the

statute a "regulation" w i t h i n the meaning of the commerce clause? and (3) does the statute violate any constitutional limitations on clause?

25

federal action,

as for example,

the due

process

W h e n a state statute is to be tested as in contraven-

tion of the federal power, under this theory the same concept of interstate commerce w o u l d be used. Obviously some concept or concepts of interstate commerce must be used by the courts. Danger lies in the assumption that the term has one ready and consistent meaning and that subsequent controversies may be decided by the rigorous application of propositions giving verbal expression to that meaning. 2 6 T h e search for a meaning to b e given the term "interstate com* Marshall, in Gibbons v. Ogden, 9 W h e a t . 1, 194 (1821). said: "It has been truly said, that Commerce, as the word is used in the Constitution, is a unit, every part of which is indicated by the term." " T h e subject to be regulated is commerce; and . . . to ascertain the extent of the power it becomes necessary to settle the meaning of the w o r d . " Ibid. 189. Compare the following statement: " C o m m e r c e has a definite signification. It means the ordinary b u y i n g and selling, and bartering, between citizens of the same country, and citizens of one country with citizens of another country, and it means no more. Universal usage has fixed its boundaries so permanently, they cannot be shaken by any artificial or sophistical argument." Speech of William Smith, Senator from North Carolina, A p r i l 11, 1838. Cong. D e b . Vol. 4, Part

I, p i . 647.

Quoted

in

PRENTICE,

THE

FEDERAL

POWER

OVER CARRIERS

AND

CORPORATIONS (1907) 82. 24 T h e federal power is described as extending to subjects intimately associated with interstate commerce. See Stafford v. Wallace, 258 U.S. 495 (1922). T h i s may be based on the implied powers of Congress under the necessary and proper clause. Art. I, Sec. 8, United States Constitution. T o determine whether a subject is intimately associated with interstate commerce, the Court must obviously use its concept of interstate commerce. 36

See Chicago, Rock Island and Pacific R y . v. United States, 284 U.S. 80

(•93 1 )" A useful illustration mav be found in Hopkins v. United States, 171 U.S. 578 (1898).

JOHN MARSHALL

27

merce" and the application of that term must be examined in connection with later cases. At the beginning of the nineteenth century practically all interstate commerce was by water. T h e roads, when there were any, were extremely bad. 27 In large part the interior of the country was inaccessible except by means of the rivers. It is not surprising that the early regulations of Congress under the commerce power dealt so largely with navigation, nor that the first cases coming before the Court involved this subject. A t the same time, there was great demand for the development of internal transportation and communication. T h e states being unable or unwilling to finance such development on a large scale, 28 it was natural that they should turn to individual enterprise. T o interest private capital it was necessary that the business be made to seem attractive, and for this grants of monopoly were needed. T h u s toll roads and toll bridges became common. Likewise exclusive grants were frequently made by the states for the operation of stage lines. 29 T h e r e may thus appear to be a strange anomaly involved in the recognition of the validity of state grants of monopoly for transportation on land and in the denial of validity to such grants for transportation on water. 30 T h e apparent difference between commerce by land and by " T h u s Jefferson wrote in 1790: " T h e roads [from R i c h m o n d to New Y o r k ] were so bad that we could never go more than three miles an hour, sometimes not more than two and in the night but o n e . " Jefferson to T . M. R a n d o l p h , March JOHN

28,

1790;

MARSHALL

WORKS, (1916)

FORD,

259.

vi,

36.

Quoted

in

1

BEVERIDCE,

S e e a l s o FISKE, THF. CRITICAL

THE

P E R I O D IN

LIFE

OF

AMERICAN

HISTORY (1888) 6 1 . " A p a r t from any question of the willingness or financial ability of the federal government to construct roads, there were believed to be constitutional difficulties in the way. T h e prevailing opinion was that the federal government d i d not have this power. See REYNOLDS, THE DISTRIBUTION OF POWF.R TO REGULATE

INTERSTATE CARRIERS

BETWEEN

THE

NATION

AND T H E S T A T E S

(1928)

47

ff.

" A review of such state grants may be f o u n d in PRENTICE, op. cit. supra note 23, at ch. 3. It is interesting to note that Webster conceded the validity of these monopolies in his argument in G i b b o n s v. Ogden. See 9 Wheat. 18. It should be noted that these state monopolies of transportation by land did not run counter to any federal license. U n d e r Marshall's view this was not true of the state-granted monopoly involved in G i b b o n s v. Ogden.

28

JOHN MARSHALL

water continued for many years. 31 As late as 1875, in Company v. Maryland/2 Mr. Justice Bradley said:

Railroad

Commerce on land between the different states is so strikingly dissimilar, in many respects, from commerce on water, that it is often difficult to regard them in the same aspect in reference to the respective constitutional powers and duties of the state and federal governments. No doubt commerce by water was principally in the minds of those who framed and adopted the Constitution, although both its language and spirit embrace commerce by land as well. 33 T h e decision in Gibbons v. Ogden was not thought to render insecure monopolies granted to carriers on land. 34 T h e conditions of transportation by land were utterly different from those of transportation by water. T h e exclusive grants in the case of transportation by land were quite often limited in extent. T h e y seem generally to have represented the normal monopoly which may be deemed a reasonable concomitant to a public utility. 3 5 W i t h o u t some such protection from competition, private capital could not be induced to enter this business, so necessary to the public welfare, nor could it effectively maintain the service involved. T h e public, anxious for the development of inland transportation, were not opposed to the grants of monopoly. It remained for later decisions, when interstate transportation by land had gained greater importance and 31

See V e a z i e v . M o o r ,

FOREIGN

14 H o w .

CORPORATIONS IN A M E R I C A N

568

(1852);

HENDERSON, T H E

CONSTITUTIONAL L A W

(1918)

POSITION OF 112, 113.

That

no substantial differences exist today, in so far as questions of state and federal power are concerned, see Goodnow, The Power of Congress to Regulate Commerce

(1910), 25 POL. SCI. Q . 220.

21 W a l l . 456 (1875). T h e Court sustained a provision in the charter granted by Maryland to the Baltimore and Ohio Railroad to construct and operate a railroad f r o m Baltimore to Washington, by which provision the company was to pay semi-annually to the state one-fifth of the gross passenger receipts of the road. See in accord State v. Illinois Central R . R . Co., 246 111. 188, 205-221, 92 N.E. 814 (1910); J . P. Hall, The State Tax on Illinois Central Gross Receipts (1907), 2 I I I . L. REV. 21. But cf. Wabash, St. Louis and Pacific R y . Co. v. Illinois, 32

118 U.S. 557

(1886).

Railroad Company v. Maryland, 21 W a l l . 456, 470 (1875). 31 See PRENTICE, op. cit. supra note 23, at 67, 68. 35 For a review of the monopolies of stage transportation, see ibid. 62 ff. For later illustrations of state efforts at control of transportation by land, see Buck v. Kuykendall, 267 U.S. 307 (1925); Bush and Sons v. Maloy, 267 U.S. 317 (1925); Kauper, State Regulation of Interstate Motor Carriers (1933) 31 MICH. L. R E V . 9 2 0 , 1 0 9 7 . 38

JOHN MARSHALL

29

extent, to strive for reconciliation between state-granted monopolies and the commerce clause. It would be erroneous to infer that at the time of Gibbons v. Ogden the commerce mentioned in the Constitution was thought to include only commercial intercourse by water. Transportation by land had not gained much importance. Congress had not yet busied itself with regulations of such commerce. State monopolies had not become oppressive. It seems a fair comment on the situation to say that the commerce clause in this aspect had simply not been explored. The cases immediately succeeding Gibbons v. Ogden may best be considered in connection with the second phase of this discussion, the effect of the federal power on the powers of the states. THE

EFFECT

OF T H E

FEDERAL THE

POWER

ON T H E

POWERS

OF

STATES

T h e study of the effect of the commerce clause on the powers of the states has unhappily been confused by varying meanings of the terms used. It has been customary to speak of the problem as being one of whether the power of Congress over interstate commerce is "exclusive" or "concurrent." Correspondingly, from the point of view of the states, the problem has been spoken of as being whether they have a concurrent power or no power. The term "exclusive" has been used as having reference to the power of Congress or to the subject on which the power operates, a change in meaning which will be apparent in connection with the cases to be considered.36 The word "concurrent" is extremely shifty. It has been pointed out that it may be given no less than ten meanings. 37 Fortunately all of the meanings of concurrent have not been applied to the commerce power. Doubtless much of the discussion of the character of the federal power over commerce as being exclusive " For a statement of three meanings which have been assigned to the exclusive power of Congress, see LKWIS, op. cit. supra note 7, at 42, 43. See also opinion of Taney, C. J., in License Cases, 5 How. 504, 581 (1847). "Dowling, Concurrent Power under the Eighteenth Amendment (1922) 6 MINN. L . REV. 450.

JOHN MARSHALL or concurrent could have been clarified had more careful attention been paid to the terms used. T h e draftsmen of the Constitution well knew how to use apt and appropriate language to exclude state action in those particulars in which they deemed state action undesirable. 38 T h e failure to use such language in any particular may be made the basis for the argument that exclusion was not intended in that particular, by direct force of constitutional provision. 39 Under this suggestion Congress may exclude state action by the exercise of its granted powers to the extent of that exercise. Further, this suggestion contemplates that the intent of Congress shall work as effective an exclusion whether it be ascertained from express legislation or from implication. Yet the basis of the exclusion would be the will of Congress within the scope of its powers, and not the bare grant of power. While it cannot be doubted that the framers of the Constitution had this knowledge, inferences drawn from their failure to use it in any provision may vary. T h e framers may well have felt unable to ascertain all of the implications and necessities in particular grants of power with which they were dealing, with sufficient certainty to warrant the exclusion of state action. They may consequently have been unwilling definitely to exclude the states in many instances, although recognizing that state action might be excluded by a fair determination, in the light of later wisdom, of the scope of the powers granted to the federal government. Certainly there is an exclusion of the states so far as it is required by a grant to the federal govern38 " T h e Congress shall have power to exercise exclusive legislation in all cases whatsoever, over such district." United States Constitution, Art. I, Sec. 8, d . 17. " N o State shall enter into any treaty." United States Constitution, Art. I, Sec. 10. " S e e T a n e y , C. J . , in the License Cases, 5 H o w . 504, 579 (1847). " A n d ii it was intended to forbid the States f r o m m a k i n g any regulations of commerce, it is difficult to account for the omission to prohibit it, when that prohibition has been so carefully and distinctly inserted in relation to other powers, where 1 he action of the State over the same subject was intended to be entirely excluded. But if, as I think, the framers of the Constitution (knowing that a multitude of minor regulations must be necessary, which Congress a m i d its great concerns could never find time to consider and provide) intended merely to make the power of the federal government supreme on this subject over that of the States, then the omission of any prohibition is accounted for, and is consistent with the whole instrument."

JOHN

MARSHALL

3i

m e n t , w h e t h e r o r n o t c u s t o m a r y words of exclusion a r e used. T h e difficulty in this s t a t e m e n t will lie in t h e m e a n i n g

of

"required." H a m i l t o n m a d e use o f a t h r e e f o l d classification in e x p l a i n i n g t h e exclusive powers o f t h e federal g o v e r n m e n t . T h i s classification, varying s o m e w h a t in t h e l i m i t a t i o n s of t h e t h i r d category, has so f r e q u e n t l y a p p e a r e d t h a t H a m i l t o n ' s s t a t e m e n t s h o u l d be quoted: But as the plan of the convention aims only at a partial union or consolidation, the State governments would clearly retain all the rights of sovereignty which they before had, and which were not, by that act, exclusively delegated to the United States. T h i s exclusive delegation, or rather this alienation, of State sovereignty would only exist in three cases: where the Constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant,40 The

first

two cases present n o difficulty. T h e

appropriate

l i m i t a t i o n s a n d q u a l i f i c a t i o n s in the t h i r d case must n e e d s b e c o n s i d e r e d . It is this class w h i c h is i m m e d i a t e l y r e l e v a n t t o t h e p r e s e n t discussion. T h e

problem

thus presented a n d

stated

g e n e r a l l y is t h e j u d i c i a l d e t e r m i n a t i o n of t h e division o f power, w h e r e t h e basis of division is n o t e x p l i c i t l y set f o r t h in

the

Constitution. " T H E FEDERALIST, no. 32. A f u r t h e r quotation from the same number of THE FEDERALIST is instructive. " T h e necessity of a concurrent jurisdiction in certain eases results from the division of the sovereign power, and the rule that all authorities of which the States are not explicitly divested in favor of the Union remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution. We there find that, notwithstanding the affirmative grants of general authorities, there has been the most pointed care in those cases where it was deemed improper that the like authorities should reside in the States, to insert negative clauses prohibiting the exercise of them by the States. T h e tenth section of the first article consists altogether of such provisions. T h i s circumstance is a clear indication of the sense of the convention, and furnishes a r u l e of interpretation out of the body of the act which justifies the position I have advanced in every particular." See THE FEDERALIST, no. 82; Sturges v. Crowninshield, 4 Wheat. 122, 169 ff. (1819) (argument of Ogden).

32

JOHN MARSHALL T h i s p r o b l e m had received careful consideration before it

was presented in connection with the commerce clause. In Sturges v. Crowninshield,41 the C o u r t gave an opinion on the validity of the N e w Y o r k law " f o r the benefit of insolvent debtors." Congress, u n d e r the power to establish " u n i f o r m laws on the subject of bankruptcies throughout the United States," had enacted a bankruptcy law, b u t had repealed the law prior to the enactment of the N e w Y o r k statute. T h e question thus presented was as to the effect of the constitutional grant to Congress, on the power of the state. T h e C o u r t declared that the grant in question did not preclude state action in the absence of Congressional action; saying: " I t is not the mere existence of the power, b u t its exercise, which is incompatible w i t h the exercise of the same power by the states." 42 Presenting as it does a general discussion of the effect to be given to a grant of power to Congress, w i t h o u t words expressly restricting state action, the opinion is very useful in this connection. Marshall, seeking to solve the difficulty, laid down this broad proposition: " W h e n e v e r the terms in which a power is granted to Congress, or the nature of the power, require that it should be exercised exclusively b y Congress, the subject is as completely taken from the state legislatures as if they had been expressly forbidden to act on it." 43 T h r e e categories are recognized in this statement. A power granted to Congress is exclusive: (l) w h e n the terms in which the power is granted require that construction; i.e., when it is expressly made exclusive; (2) w h e n the states are expressly forbidden to act on the subject; and (3) w h e n the nature of 4 1 4 Wheat. 122 (1819). See Ogden v. Saunders, 12 Wheat. 213 (1827). T h e action in Sturges v. Crowninshield was against the maker of two promissory notes. T h e notes were made on March 22, 1811. T h e legislature of New York had passed on April 3, 1811, the act in question for the relief of insolvent debtors. T h e defendant pleaded a discharge under this act. T h e plaintiff demurred to the plea, alleging that the statute violated the Federal Constitution. T h e Court considered the statute not to be in conflict with the grant of power to Congress "to establish uniform laws on the subject of bankruptcies throughout the United States." However, the demurrer was sustained on the ground that in so far as previous debts were concerned the state law was one impairing the obligation of contracts. 4 3 Ibid. 193. " S t u r g e s v. Crowninshield, 4 Wheat. 122, 196 (1819).

JOHN

MARSHALL

33

the power requires that it be exercised exclusively by Congress. As here construed and rearranged the first two categories are the obvious ones, a n d are identical with the first two set forth by Hamilton. T h e distinguishing characteristic in the third category is to be the nature of the power, as requiring that it be exclusively exercised by Congress. 4 4 T h e commerce power, if it is to be held exclusive, must be.brought within the third category. It is, then, the nature of the power which will be looked to as the determining matter. T h e means used to discover that nature, a n d the aspects which are deemed important may be sought in the early commerce cases. Reference may be made here, for a moment, to the earlier discussion of natural law. 4 3 At this time, and much later, natural rights, d e p e n d i n g on the nature of man in the abstract, received broad recognition in the law. It is most interesting to note the persistent appearance of natural rights in the various judicial considerations of the New York steamboat monopoly. 4 0 44 Ogdcn, as counsel for the defendant, had made a classification of the powers given to Congress, which purported to be complete. " T h e powers given to Congress by the Constitution may be divided into three classes: ist, those which are national in their nature, and which are vested in Congress, as the sovereign power of the nation or Union. . . . Under the first class may be enumerated, the power to borrow money on the credit of the United States; to regulate commerce with foreign nations and among the several states; to provide for the punishment of counterfeiting the securities and current coin of the United States." Sturges v. Crowninshield, 4 Wheat. 122, 167 (1819). T h e powers in the first class are such as "apply to the Union, for which the legislature of no one stale ever could legislate," or which "regard our intercourse with foreign nations, and, therefore, necessarily concern the whole nation collectively." Thus the nature to be looked to is a nature which concerns the Union, for which no one state could legislate. Ibid. 168. a Supra ch. I. And see the argument of Hunter in Sturges v. Crowninshield, 4 Wheat. 122, 146 (1819): " T h i s [power in the state] arises from the very nature of the subject; from the nature and conditions of human affairs." " Chancellor John Lansing denied an injunction sought by Livingston and Fulton against the infringement of their grant of monopoly. His opinion, rendered in 1 8 1 1 , is given with the opinion of the Court on appeal. Livingston v. Van Ingeii, 9 Johns. (N.Y.) 507, 514 (1812). Lansing relied in large part on natural rights in navigable waters. T h u s he said: " I n the Institutes [of Justinian] it is laid down that those things which are given to mankind, in common, by the law of nature, are the air, running water, the sea, etc." Ibid. 517. T h e decision of the lower court was reversed on appeal. Kent, in the course of his opinion, said: " T h e legislative power in a single independent government, extends to every proper object of power, and is limited only by its own constitutional provisions, or by the fundamental principles of all government, and

34

JOHN

MARSHALL

A t this time the nature of free government was frequently referred to and used as a basis for determining rights and obligations. 47 It is not a long step from the nature of governments to the nature of powers. It was at least in keeping with typical eighteenth-century juristic thinking, which carried over generally in the courts well into the nineteenth century, to search for a solution of the p r o b l e m by the application of reason to the nature of the power involved. It has been seen that counsel for the appellant in Gibbons v. Ogden had argued that the federal power over commerce was exclusive, at least in its "higher reaches." 48 T h e argument of Webster, in this case, is notable in suggesting ideas which have received subsequent judicial recognition. T h u s he said: He should contend, that the power of Congress to regulate commerce, was complete and entire, and, to a certain extent, necessarily exclusive; . . . He did not mean to say, that all regulations which might in their operation, affect commerce, were exclusively in the power of Congress. . . . Some powers are holden to be exclusive in Congress from the use of exclusive words in the grant; others, from the prohibitions on the states to exercise similar powers; and others, again, from the nature of the powers themselves. And as some powers have been holden exclusive, and others not so, under the same form of expression, from the nature of the different powers respectively; so where the power, or any one subject, is given the unalienable rights of m a n k i n d . " He thought, however, that these rights were not infringed by the exclusive grant in question. A n elaborate argument based on the law of nature and natural rights was urged on the court by Oakley, in Gibbons v. Ogden, 9 Wheat. 1, 66 ff. (1824). It was designed, as part of the case for the defendant in error, to show that the right of intercourse between state and state rested on an original or natural right. Marshall accepted the original right in his opinion, although he did not accept the conclusions which Oakley sought to draw from it. T h u s Marshall said: " I n pursuing the inquiry at the bar, it has been said, that the Constitution does not confer the right of intercourse between State and State. T h a t right derives its source from those laws whose authority is acknowledged by civilized man throughout the world. T h i s is true. T h e Constitution found it an existing right and gave Congress the power to regulate it." Ibid. 211. " S e e Fletcher v. l'eck, 6 Cranch 87, 135 (1810); Terrett v. Taylor, 9 Cranch 43, 49-51 (1815); Slaughter House Cases, 16 Wall. 36, 76 (1873); Loan Association v. T o p e k a , 20 Wall. 655, 662 (1875); Madisonville Traction Co. v. St. Bernard Mining Co., 196 U.S. 239, 252 (1905). "Supra 23.

JOHN M A R S H A L L

35

in general words, like the power to regulate commerce, the true method of construction would be, to consider of what parts the grant is composed, and which of those, from the nature of the thing, ought to be considered exclusive. In conferring powers, it [the Constitution] proceeded in the way of enumeration . . . and where the power was general, or complex in its nature, the extent of the grant must necessarily be judged of, and limited by its object, and by the nature of the power. 49 As before, exclusiveness appears from the nature of the power. T h e r e are other suggestions here of great interest. First, there is the intimation, presented negatively it is true, that the states may enact some regulations which in their operations "affect" interstate commerce. Second, there is the suggestion, again put forward quite cautiously, that the power over commerce is not one indivisible unit, but may be separated into parts, and of those parts some are exclusive and some may not be exclusive. T h e exclusive parts are "those high and important powers over commerce, which in their exercise were to maintain a uniform and general system." 50 Oakley, on behalf of the validity of the N e w York monopoly, made an extended argument for the existence of a concurrent 51 power in the state. He, too, appealed to the nature of the power, 52 but, as was to be expected, he found in it matter quite different from that discovered by Webster. T h u s he argued: There is nothing in the nature of the power which renders it exclusive in Congress. T h e power itself does not grow out of the Union, like the power "to borrow money on the credit of the United States." It does not operate when exercised by a state, beyond its territorial limits, like the power of naturalization. There is no necessary repugnancy between the acts of the two governments under the power, since it clearly admits of a great variety of regulations, which may operate together, without direct interference. T h e restraints specially imposed on the power of the states, relating to 1 5 0 Ibid. 13. " G i b b o n s v. O g d e n , 9 W h e a t . 1, 9, 10 (1824). 61 In g i v i n g the m e a n i n g of " c o n c u r r e n t " O a k l e y said: " I t has thus b e e n seen that this p o w e r is concurrent, a n d as such m a y be exercised by the states, subject, like all other c o n c u r r e n t powers to the p o w e r of Congress w h e n a c t u a l l y exercised; and that it is l i m i t e d , n o t e x t e n d i n g to the i n t e r n a l trade of t h e 62 Ibid. 37. states." G i b b o n s v. O g d e n , 9 W h e a t . i, 65 (1824).

36

JOHN MARSHALL

commerce, would have been unnecessary, if it were not considered as a concurrent power.53 Marshall did not agree in full with the position of either counsel. He rejected Webster's suggestion as to the divisibility of the commerce power, as well as Oakley's argument of a concurrent power in the states. T h u s he said, in dismissing the suggested analogy of the taxing power, admitted to be a divisible power: The grant of the power to lay and collect taxes is, like the power to regulate commerce, made in general terms, . . . But the two grants are not, it is conceived, similar in their terms or their nature. . . . The power of taxation . . . is a power which, in its own nature, is capable of residing in, and being exercised by, different authorities at the same time. . . . When, then, each government exercises the power of taxation, neither is exercising the power of the other. But when a state proceeds to regulate commerce with foreign nations, or among the several states, it is exercising the very power that it granted to Congress, and is doing the very thing which Congress is authorized to do.54 T h e Constitution prohibits the states without the consent of Congress from laying duties or imposts on imports and exports, except such as may be absolutely necessary for executing their inspection laws.53 Now it was urged upon the Court that if the states had no power over commerce, this prohibition on the exercise of a commerce power was useless. In answer Marshall admitted that inspection laws are recognized in the Constitution and that they may have a "remote and considerable influence on commerce," but it was denied that the commerce power is the source of the right to pass these laws. T h e exposition here is most useful in portraying Marshall's views as to the division of power. He declared that "inspection laws, quarantine laws, health laws of every description, as well as laws for regulating the internal commerce of a state, and those which respect turnpike roads, ferries, etc." form part of the mass of legislation not surrendered to the general governM G i b b o n s v. O g d e n , 9 W h e a t . i , 198, 199, 200 (1824). *Ibid. 63. " A r t . I, Sec. 10.

JOHN MARSHALL

37

ment but reserved to the states.56 Congress has no general power over these objects, but can reach them under powers expressly granted or powers clearly incidental to the powers expressly granted. Thus Congress may use certain means that may also be employed by the states. But this "implies no claim of a direct power to regulate the purely internal commerce of a state, or to act directly on its system of police." Similarly the states may adopt measures of the same character as those which Congress may employ, yet it does not follow that the states share the same power with Congress. There follows this important declaration: "All experience shows that the same measures, or measures scarcely distinguishable from each other, may flow from distinct powers; but this does not prove the powers themselves are identical." To Marshall, apparently, the commerce power granted to Congress, unlike the taxing power, is an indivisible unit. As such it is an exclusive power, residing wholly with Congress.57 While no part of this power is in the states, yet the states in the exercise of their recognized powers may adopt some measures of the same character with those which Congress may M Counsel, seeking to establish the existence of a concurrent power over commerce in the states, had made use of the Congressional adoption of pilot and quarantine laws of the states. See argument of Mr. Emmet, Gibbons v. Ogden, 9 Wheat. 1, 117 ff. (1824). Admitting that the adoption proceeded on the theory that these laws were constitutional, the Court thought that their constitutionality depended, as recognized by Congress, not upon a commerce power, but upon the power to provide for the health of the citizens of the state. Ibid. 205. s7 See PRENTICE, op. cit. supra note 23, at 72; LEWIS, op. cit. supra note 7, at 42; Greeley, What Is the Test of a Regulation of Foreign or Interstate Commerce (1887) 1 HARV. L. REV. 158. Although a view that the power is exclusive was not necessary to the decision of the case and is not propounded in explicit terms, the conclusion set forth above seems justified from the opinion. Mr. Justice Johnson stated as to the exclusiveness of the federal power over commerce, " A n d since the power to prescribe the limits to its freedom necessarily implies the power to determine what shall remain unrestrained, it follows, that the power must be exclusive; it can reside in but one potentate; and hence the grant of this power carries with it the whole subject, leaving nothing for the State to act upon." Gibbons v. Ogden, 9 Wheat. 1, 227 (1824). It will be noticed that there is apparently a shift from the meaning adopted by Marshall. T h e power over commerce is identified with the subject upon which it acts.

3«

JOHN MARSHALL

adopt. It will be observed that "exclusiveness" as here considered is directed to a power, rather than to an activity or subject upon which the power operates. T h i s view does not state that a certain type of activity in which persons are engaged, or persons and things so far as they are engaged in that activity, is removed from the effects of state action. Rather it is the interstate commerce power (the dealing with commerce for commercial purposes and reasons) which is beyond the reach of the states. W h i l e the states cannot exercise this power, the exercise of their recognized powers may reach to persons and things employed in this activity, and thereby the activity may be affected. A state action, involving a fair effort to further proper state functions, such as the improvement of the health of its citizens, would be sustained under this view although it impinge sharply on the conduct of interstate commerce. 58 Further light on Marshall's theories of the commerce power may be found in Brown v. Maryland,59 T h e Court held that a state-imposed license tax on persons importing foreign goods and on persons selling such goods was within the meaning of the prohibition against duties on imports. Referring to this license tax, it said: " A n y charge on the introduction and incor68 See W i l s o n v. T h e B l a c k b i r d Creek M a r s h Co., 2 Pet. 245 (1829). B u t cf. G i b b o n s v. O g d e n , 9 W h e a t . 1, 209 (1824); infra n o t e 61. 69 12 W h e a t . 419 (1827). A M a r y l a n d statute imposed a license tax o n persons i m p o r t i n g a n d o n . p e r s o n s selling certain f o r e i g n articles wholesale. T h e decision of the M a r y l a n d court, sustaining B r o w n ' s conviction for selling a package of dry goods w i t h o u t securing the license a n d p a y i n g the tax, was reversed by the U n i t e d States S u p r e m e C o u r t . T h e statute was h e l d r e p u g n a n t to the constitutional p r o v i s i o n p r o h i b i t i n g states f r o m l a y i n g duties o n imports or exports. O b v i o u s l y t h e C o u r t c o u l d h a v e stopped here. T h e C o u r t c o n t i n u e d , h o w e v e r , to declare the c o n v i c t i o n e r r o n e o u s u n d e r the a u t h o r i t y of the c o m m e r c e clause. T h e C o u r t a p p a r e n t l y p r o c e e d e d o n t h e theory that the d u t y imposed by Congress o n the article i n q u e s t i o n was an express a u t h o r i z a t i o n to i m p o r t the article, a n d t h a t the r i g h t to i m p o r t i n c l u d e d the r i g h t to sell. U n d e r this view the state statute was in conflict w i t h the federal statute. T h e o p i n i o n contains expressions i n d i c a t i n g that t h e state statute was i n v a l i d , e v e n in the absence of f e d e r a l action. See infra note 60. T h e o p i n i o n in B r o w n v. M a r y l a n d goes far b e y o n d the necessities of the case. T h e tax b e f o r e the C o u r t w a s a d i s c r i m i n a t o r y tax. T h u s t h e decision c o u l d h a v e b e e n based on a n a r r o w p r o p o s i t i o n . Y e t the c o m m e r c e clause was the great u n i f y i n g clause in t h e C o n s t i t u t i o n . M a r s h a l l h a d very few o p p o r t u n i ties to deal w i t h it, a n d p r o c e e d e d to m a k e t h e most of those w h i c h f o r t u n e presented.

JOHN

MARSHALL

39

poration of the articles into and with the mass of property in the country, must be hostile to the power given to Congress to regulate commerce, since an essential part of that regulation, and the principal object of it, is to prescribe the regular means for accomplishing that introduction and incorporation." 60 Relying on this statement, although it was not necessary to the decision, 0 1 the conclusion follows that even in the absence of the federal exercise of the commerce power, in some particular, as in this type of case, the state's attempted exercise of an acknowledged power, such as the t a x i n g power, is invalid. T h a t is to say, the exclusive grant of the power over interstate commerce not only removes that power from exercise by the states but it restrains to some extent the exercise by the states of their reserved powers. It was not necessary to explore the limits of this restraint, yet the suggestion of the restraint is q u i t e important, and the exploration of it presents problems for subsequent cases. T h e quotation given may suggest that w h e n state action, whatever the power on w h i c h reliance is placed, disrupts that which was designed to be a u n i f o r m whole u n d e r the control of Congress, the state action must fail. T h e r e is always a danger of reading into early statements ideas developed later. Yet this statement at least carries some faint suggestion of the rule to be announced later in Cooley v. The jBoard of Wardens.6T h e principles just suggested received an early test in

Wilson

" B r o u n v . M a r y l a n d , 12 W h e a t . 4 1 9 , 448 (1827). A l t h o u g h t h e c o n s t r u c t i o n is b y n o m e a n s i n d i s p u t a b l e , it s e e m s f a i r t o c o n s t r u e t h i s s t a t e m e n t to m e a n t h a t t h e state t a x w o u l d f a i l b y r e a s o n of t h e p o w e r o v e r c o m m e r c e g r a n t e d t o C o n g r e s s , i r r e s p e c t i v e of t h e e x e r c i s e o f t h a t p o w e r . S e e P e n c a r v . C o m m o n w e a l t h . 5 W a l l . 475. 478, 4 7 9 (1866); I'RK.VIicr., op. cit. supra n o t e 23, a t 102 If.; C o r w i n , The Doctrine of Due Process of Law before the Civil fVar ( 1 9 1 1 ) 24 HARV. L . REV. 366, 460, 4 6 1 . Cf. supra n o t e 58. I n t h e L i c e n s e C a s e s , 5 H o w . 504, 6 1 5 , 6 1 6 (1847), J u s t i c e D a n i e l s u g g e s t e d t h a t b a s i n g t h e d e c i s i o n i n B r o w n v . M a r y l a n d o n t h e act of C o n g r e s s i n l a y i n g t h e d u t y 011 t h e a r t i c l e s in question involves the absurdity of r e m o v i n g f r o m state action goods on w h i c h C o n g r e s s is w i l l i n g to i m p o s e b u r d e n s , b u t s u b j e c t i n g to s t a t e a c t i o n t h o s e g o o d s w h i c h C o n g r e s s f a v o r s so h i g h l y as b y n o t a c t i n g t o a d m i t d u t y f r e e . V e t it m u s t b e a d m i t t e d t h a t t h e a b s u r d i t y is h a r d l y so g r e a t a s t h e J u s t i c e s u p p o s e d . C o n g r e s s c o u l d r e a d i l y h a v e p r o t e c t e d its p r e f e r r e d a r t i c l e s , a n d t h e f a i l u r e to p r o t e c t a n a r t i c l e m i g h t f a i r l y r a i s e s o m e q u e s t i o n as to w h e t h e r it 01 Supra 8 2 1 2 H o w . 299 was preferred. n o t e 59. (1852).

4°

JOHN MARSHALL

v. The Blackbird Creek Marsh Co.63 T h e legislature of Delaware had authorized a company owning marshy lands along a navigable creek to build a dam across the creek and to bank the creek, with a view to improving their lands. T h e owners of a sloop, regularly licensed and enrolled under the navigation laws of the United States, broke the dam, and action was brought by the company for the resulting damage. T h e defendants claimed that the plaintiff's dam wrongfully obstructed navigation, and that they opened the dam only so far as necessary to allow their vessel to pass. T h e Court held for the owners of the dam, saying that the act authorizing the construction of the dam was not, under all the circumstances of the case, "repugnant to the power to regulate commerce in its dormant state" nor was it in conflict with any law of Congress. The first proposition is consistent with the interpretation of Gibbons v. Ogden, just presented. T h e creek in question was, in the vivid words of Mr. Wirt, counsel for plaintiff company, "one of those sluggish, reptile streams, that do not run but creep, and which wherever it passes, spreads its venom, and destroys the health of all those who inhabit its marshes." 84 The Court stated the value of the property was enhanced and the health of the inhabitants probably improved by the dam. The law thus can easily be sustained under the reserved power of the states, recognized in Gibbons v. Ogden, as against the power of Congress "in its dormant state." This is the position taken by the Court and for this proposition the case has been frequently cited with approval. 83 The difficulty lies in finding, consistently with the effect given to the license in Gibbons v. Ogden, that the power of Congress was in a dormant state. It does not appear from the opinion why a federal license, which carries with it the right to navigate the entrance to New York harbor, gave no right to m

2 Pet. 245 (1829). Ibid. 249. 65 Newark v. Central R . R . of New Jersey, 267 U.S. 377, 381 (1925); International Bridge Co. v. New York, 254 U.S. 127, 132 (1920); Lake Shore and Michigan Ry. v. Ohio, 165 U.S. 365, 366 (1897); Escanaba Co. v. Chicago, 107 U.S. 678, 683 (1882); Gilman v. Philadelphia, 3 Wall. 713, 727 (1865). 04

JOHN MARSHALL

41

navigate the upper reaches of Blackbird Creek. This, then, must be left to speculation.6® T h e judicial consideration of federal commerce power in relation to the states has from the first been necessarily accompanied by some determination of those powers in the state which, for convenience of designation, are referred to collectively as the police power. In Gibbons v. Ogden, there is recognition of the reserved power in each state to maintain its "system of police." T h e term "police power" apparently makes its first appearance in American constitutional law in the opinion of Marshall in Brown v. Maryland.6T T h e use of the term "police power" may readily be a source of confusion. Thus it has been used to describe generally all powers which a state may exercise. It is likewise used to describe only a portion of the powers of a state; 88 as, for example, the police power in contradistinction with the power of taxation "•For the explanation by Taney, C. J., see his dissenting opinion in Pennsylvania v. Wheeling and Belmont Bridge Co., 13 How. 518, 58.5-.5S7 (iS.51)- T h e distinction is there drawn between a law prohibiting navigation and a physical obstruction to navigation. T h e coasting license was deemed to give the right to navigate where the navigation was good, i.e., unobstructed. For other suggested explanations see the Passenger Cases, 7 How. 283 (1849). opinion of McLean, J., 397, 398; PRF.NTICF., op. cit. supra note 23, at 106-8; Greeley, supra note 57, at 163. A holding that the federal statute authorizing the enrollment and licensing of vessels for the coasting trade, was a prohibition on the states from dealing with small creeks in such a way as to improve the surrounding marshes and consequently benefit the health of its citizens would certainly involve a most extreme construction. It may well be argued that the initial error was in the effect given to the coasting license in Gibbons v. Ogden. This, to the writer, seems true. Yet, whatever may be the satisfactory escape, if any. from the consequences of that use of the coasting license, the Court definitely stated that the act of Congress had nothing to do with this case. Under this interpretation of the federal act, the case is clear enough. " " T h e power to direct removal of gunpowder is a branch of the police power which unquestionably remains and ought to remain with the States." Brown v. Maryland,

1 2 W h e a t . 419, 443

( 1 8 2 7 ) . S e e 3 WILLOUCHBY ON THF. CONSTITUTION

OF THE UNITED STATES (1929) 1766; Cook, What

is

the

Police

Power

(1907) 7

COL. L. RFV. 322; Hastings, The Development of Law as Illustrated b\ the Decisions relating to the Police Power of the States (1900) 360, 365, PROCEEDINGS OF THF. AMERICAN

PHILOSOPHICAL SOCIETY

1900.

" " " T h e only valuable significance of the much abused phrase 'police power' is this power of the State to limit what otherwise would be rights having a pecuniary value, when a predominant public interest requires the restraint." Justice Holmes, dissenting in Frost Trucking Co. v. Railroad Commission of California, 271 U.S. 583, 601 (1926).

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and the power of eminent domain. T h e r e is often a lack of discrimination in the use of the term. T h i s lack of discrimination is perhaps invited and palliated by the frequent expression that the term is not susceptible of definition, 69 since that expression heightens the impression of its nebulous character. An added source of confusion is worthy of mention. T h e statement that a law is passed by a state in the exercise of its police power may be designed to mean that the law has stood, or is deemed capable of standing, the test of federal constitutional limitations, notably those of the Fourteenth Amendment. Yet the same statement is also used to indicate merely the basis upon which the state legislature relied in enacting the law in question, without any implications that the law will withstand assaults under the Federal Constitution. T h e police power of the state is thus placed in contradistinction with the due process guarantees to the individual. T h e former use is preferable. T h e existence of a " p o w e r " connotes that its exercise would be valid. In the earlier opinions, the term "police power" was used to describe the general residuary powers of the states, which had not been surrendered to the federal government. 70 T h u s Justice Story spoke of "the police power belonging to the states in virtue of their general sovereignty." And he continued: " T h a t police power extends over all subjects within the territorial limits of the states, and has never been conceded to the United States." 7 1 Chief Justice T a n e y made a more elaborate statement: What are the police powers of a State? They are nothing more or less than the powers of government inherent in every sovereignty to the extent of its dominions. And whether a State passes a quarantine law or a law to punish offenses, . . . or to regulate commerce within its own limits, in every case it exercises the same power; that " S e e the comments on the use of the term " p o l i c e p o w e r " by J . B . T h a y e r in i CASKS ON CONSTITUTIONAL LAW (1895) 6 9 1 . 70 See Hastings, supra note 67, aL 360 IT.; WII.LODOHBY, op. cil. supra note 67, at 1765 if. 71 P r i g g v. Pennsylvania, 16 Pet. 5 3 9 , 625 (1842).

JOHN MARSHALL

43

is to say the power of sovereignty, the power to govern men and things within limits of its dominion. 72 Subsequently the term came to be used in the more restricted sense which is now familiar. Doubtless this development was due, in part, to cases involving state statutes challenged under the commerce clause. In the effort to sustain such statutes, reliance was placed upon their relation to public health, safety, and morals, as matters left within the control of the states. T h a t phase of state legislation directly designed to promote these objects became associated with the term. With the growth of state legislation restricting the use of property, distinctions became increasingly important between the taking of property by taxation, the taking by eminent domain, and what in many cases will appear tantamount to a taking, the imposition of restraints on the use of property. T h e power of the states, in the interests of the general good, to impose those restraints without compensation was readily termed the police power. 73 Since the Fourteenth Amendment, the term has been, of course, frequently used in describing the power of the states as measured against the due process guarantees to persons.74 A n effort of a state to improve the health of its citizens and the value of their property had come before the Court in the Blackbird Creek Marsh C9'3)" S e e Aetna Life Insurance Co. v. Dunken, 266 U.S. 389 (1924): Modern Woodmen of America v. Mixer, 267 U.S. 544 (1925); Home Insurance Co. v. Dick, 281 U.S. 397 (1930); Hartford Accident and Indemnity Co. v. Delta Pine Land Co., 292 U.S. 143 (1934); Dodd. The Power of the Supreme Court to Review State Decisions in the Field of Conflict of Laws (1926) 39 HARV. L. REV. 533; Ross, Has the Conflict of Laws Become a Branch of Constitutional Law (1931) 15 MINN. L. REV. 161; notes (1934) 34 COL. L. REV. 891; (1930) 40 YALE L. J . 291; (1925) 38 HARV. L . REV. 804. " 2 5 4 U.S. 17 (1920). See note (1921) 21 COL. L. REV. 270.

i88

S T A T E POWER

whether the transmission was intrastate commerce. T h e jury, in the trial court, found that the company had routed the message through Virginia "for the purpose of fraudulently evading liability under the North Carolina law." 20 Undeterred by the jury's finding, the United States Supreme Court held that the transmission was interstate and accordingly the North Carolina law did not apply. With characteristic directness of expression, Justice Holmes, giving the opinion of the Court, said: The transmission of a message through two states is interstate commerce as a matter of fact. The fact must be tested by the actual transaction.21 Later he declared "the motive would not make the business intrastate." 22 And finally he dismissed the plaintiff's contention as to the effect of fraud, in stating: "If the mode of transmission adopted had been unreasonable . . . the liability, if it existed, would not be a liability for an intrastate transaction that never took place but for unwarranted conduct and the resulting loss." 23 Thus the transmission of the message through Virginia made this transaction interstate commerce and the whys and wherefores were immaterial so far as the fact of interstate commerce was concerned.24 T h e ease with which one may, in certain instances, thus make his conduct interstate will seem startling. So startling has this seemed that a lower federal court has rebelled. 25 A bus company, having been denied a permit to operate its buses between two points in Rhode Island, changed the route slightly so that in going between the two points in question the buses would pass a short distance through Massachusetts. T h e Court held this did not make the journey interstate, so as to oust the state's jurisdiction. In taking this apparent departure from precedent, " W e s t e r n Union Telegraph Co. v. Speight, 254 U.S. 17 (1920). * Ibid. 18. "Ibid. 19. »Ibid. M T h e result is consistent with other decisions. Missouri Pacific R.R. v. Stroud, 267 U.S. 404 (1925): Hanley v. Kansas City Southern Ry., 187 U.S. 617 («903); Holden v. Maine Central R.R., 77 N.H. 397, 92 Atl. 334 (1914); St. Louis R y . Co. v. Spriggs, 113 Ark. 118, 167 S.W. 96 (1914). See Kirmeyer v. Kansas, 236 U.S. 568 (1915). Cf. Lehigh Valley R . R . v. Pennsylvania, 145 U.S. 192 (1892). * Inter-City Coach Co. v. At wood, 2t F. (2d) 83 (appeal dismissed 278 U.S. 663, 1928) (D. C. R . I. 1927); (1927) 41 HARV. L. REV. 260; (1927) 26 MICH. L. REV. 221; (1928) 6 N . C. L. REV. 814.

S T A T E POWER

189

the Court referred to that strange statement in Austin v. Tennessee, wherein the conduct in that case was called "a discreditable subterfuge, to which this court ought not to lend its countenance." 26 T h u s the idea is suggested that the bus company was not making use of "a bona fide commercial arrangement," 27 and the matter of good faith is determinative. But if this is to be accepted, the doctrine of the earlier cases must be abandoned. T h i s effort to wriggle out of unsatisfactory results flowing from a rigid factual concept of interstate commerce, may serve to show unfortunate consequences to be anticipated from any strict use of the factual idea. However, it will also serve to show adjustments happily provided by the flexibility of constitutional doctrine. Rigidity at one point of the machine is compensated for by play elsewhere. T h o u g h it be admitted, as consistency demands, that the buses were in interstate commerce, it does not follow that the device must be successful and that a slight detour by the bus company could effectively oust the state's power. Congress could readily control the situation, but in this instance Congress had not acted. Yet this could scarcely be deemed to be the type of interstate commerce which demanded uniformity of regulation, and which accordingly must be left untouched by the states during the silence of Congress. Manifestly it was a local problem which was subject to state control. 28 Objection may readily be raised to this idea, in the light of cases which have denied to the states the right to exclude buses engaged in interstate commerce. 29 Yet those cases involved interstate commerce which was real and not merely formal. T h e distinction herein suggested would then involve this. T h e idea of substance or reality, as distinguished from form, has not been admitted to override the bald territorial element in deter" Austin v. Tennessee, 179 U.S. 343, 361 (1900). It does not appear why there was any subterfuge involved w h e n shippers shipped their cigarettes in small instead of in large packages. " S e e Kirmeyer v. Kansas, 236 U.S. 568, 573 (1915). " S e e Wilmington Transportation Co. v. Railroad Commission of California, 236 U.S. 151, 156 (1915), where substantially the same problem was considered. ®Buck v. Kuykendall, 267 U.S. 307 (1925); Bush and Sons v. Maloy, 267 U.S. 317 (1925).

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m i n i n g what is interstate commerce. But it may still be a factor in ascertaining whether the interstate commerce in question admits of local regulation, and thus be a determinative consideration in the decision of the C o u r t after all. It seems fair to state that the various practical elements which are really determinative of the controversy may often be placed under one of several doctrinal concepts, as the needs of consistency demand. It should be apparent that there is frequently no sharp line of division between the elements which determine whether an activity is or is not to be called interstate commerce, and, admitting that it is to be called interstate commerce, the elements which determine whether it is to be classed as permitting local or d e m a n d i n g national regulation. If the state's power fails of admission through one door, it may often enter through another. T h i s point w o u l d seem to be of particular interest, since the category "interstate c o m m e r c e " is for judicial determination, and the category "that which admits of local regulation" is for legislative decision. So the shifting here involves not only the matter of description, but also the agency charged. T h e cases preeminently demonstrate that there is no one simple test of what is to be called interstate commerce, and that there can rarely be any single factor which is controlling. In view of the Court's treatment of interstate commerce as being characteristically movement from one state into another, questions of power have naturally been made to depend on when that movement begins, w h e n it ends, and on what constitutes an interruption. Activities having some physical connection with movement present more hopeful possibilities for examining lines of demarcation, than do those wherein the contribution to movement is more predominantly an economic one. In seeking to find such lines of demarcation, convenient illustrations may be taken primarily from the field of state taxation. 30 " It is n o t m e a n t to be s u g g e s t e d that state taxes c o u l d n o t r e a c h interstate c o m m e r c e . T h e c o n t r a r y is o b v i o u s l y t r u e in m a n y p a r t i c u l a r s . See P o w e l l , Contemporary Commerce Clause Controversies over State Taxation (1928) 76 U . o r

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A leading case is that of Coe v. Errol.31 Logs which had been placed on the banks of a stream within a town, awaiting the high water which would take them out of the state, were held subject to a property tax imposed by that town. T h e Court combined in one sentence a recognition of its desire for a dividing line, and a determination of what that line should be, in saying of the goods in question: " T h e r e must be a point of time when they cease to be governed exclusively by the domestic law and begin to be governed and protected by the national law of commercial regulation, and that moment seems to us to be a legitimate one for this purpose, in which they commence their final movement for transportation from the state of their origin to that of their destination." 32 T o this idea of the starting on a final journey leading out of the state was added, as an alternative or supplementary criterion, the delivery to a carrier for such extrastate transportation. T o some extent there seemed to be thus supplied a simple and readily applicable rule. T h e principles declared in Coe v. Errol have had a long and honored existence. T h u s many years later they could be quoted with approval, and after the quotation the Court could declare, "the application of these principles is obvious." 33 From this statement it proceeded to a decision deemed to be determined by the principles stated.34 Some elaboration of the idea of final movement was needed, in cases where the movement was checked or interrupted. T h e n PA. L . REV. 773; B r o w n . Slate Taxation and Interstate Commerce (1933) 81 U . OF PA. L . RF.V. 247. State t a x e s o n g o o d s b e i n g m o v e d in interstate c o m m e r c e h a v e b e e n h e l d i n v a l i d . H e n c e arises t h e i m p o r t a n c e of d e t e r m i n i n g w h e t h e r t h e g o o d s are in interstate c o m m e r c e . n 116 U.S. 5 1 7 (1886). A very useful n o t e o n this case, in t h e l i g h t of succeedi n g a d j u d i c a t i o n s , will b e f o u n d in (1932) 42 YALE L . J. 94. » C o e v. Errol, 116 U.S. 517, 525 (1886). " C h a m p l a i n R e a l t y C o . v. B r a t t l e h o r o , 260 U.S. 366 (1922). M In t h a t case, logs w h i c h h a d started d o w n s t r e a m to a m i l l in a n o t h e r state w e r e c h e c k e d t e m p o r a r i l y at a b o o m in the state of o r i g i n , lest the h i g h w a t e r s w e e p t h e m past the m i l l . It w a s held that t h e interstate m o v e m e n t h a d started a n d t h a t t h e logs w e r e a c c o r d i n g l y not s u b j e c t to m u n i c i p a l taxes. See also H u g h e s Bros. v. M i n n e s o t a , 272 U.S. 469 (1926).

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STATE POWER

was necessarily presented the question whether a new movement began thereafter or merely a continuation of the old. Adjustment to this was readily made in the light of the doctrine of Coe v. Errol. All depended upon the nature and purpose of the check. If it were merely incidental to transportation, as for example in the nature of a "safety appliance in the course of a journey," 35 the interstate nature of the journey was not disturbed. But if the check were for some "independent local advantage," that is, for some advantage unrelated to transportation, the result was otherwise.36 T h e intermingling of purposes was well shown in the journey of a herd of sheep, proceeding at a leisurely pace from Utah, across Wyoming, to a point in Nebraska.37 The sheep were maintained by grazing as they went. There was clearly the question whether the green pastures furnished a reason for the trip or merely made the trip possible, the purpose being found elsewhere. Or, as has been well said, did the sheep go to graze or graze to go? Obviously the two might concur. 38 T h e doctrine of Coe v. Errol was coexistent with the idea that manufacture or production is not commerce. 39 The one seemed to supplement the other quite naturally, since the final journey out of the state could not well begin until the goods 3 S Champlain

Realty Co. v. Brattleboro, 260 U.S. 366 (1922). See Diamond Match Co. v. Ontonagon, 188 U.S. 82 (1903); Bacon v. Illinois, 227 U.S. 504 (1913); General Oil Co. v. Crain, 209 U.S. 211 (1908); Champlain Realty Co. v. Brattleboro, 260 U.S. 366 (1922); Carson Petroleum Co. v. Vial, 279 U.S. 95 (1929); Minnesota v. Blasius, 290 U.S. 1 (1934). " Kelly v. Rhoads, 188 U.S. 1 (1903). 88 For a discussion of this and similar cases, see Powell, Taxation of Things in Transit (1920, 1921) 7 VA. L. REV. 167, 245, 429, 497. 39 Kidd v. Pearson, 128 U.S. 1 (1888) state statute prohibiting the manufacture of intoxicating liquor within the state, valid; United States v. E. C. Knight Co., 156 U.S. 1 (1895) arising under Sherman Anti-Trust Act; American Manufacturing Co. v. St. Louis, 250 U.S. 459 (1919) city tax on a manufacturing corporation valid, tax measured in part by goods sold without the state; Crescent Cotton Oil Co. v. Mississippi, 257 U.S. 129 (1921) state statute controlling manufacture of cotton seed oil and ginning of cotton, valid; Heisler v. Thomas Colliery Co., 260 U.S. 245 (1922) state tax on anthracite coal when prepared for market, valid; Champlin Refining Co. v. Corporation Commission, 286 U.S. 210 (1932) state regulation to prevent waste in the production of oil, valid; Federal Compress and Warehouse Co. v. McLean, 291 U.S. 17 (1934) state license tax on cotton compress operators, valid. Cf. Lemke v. Farmers Grain Co., 258 U.S. 50 (1922). A n d see United States v. Butler, 297 U.S. 1 (1936); Carter v. Carter Coal Co., 90 L . Ed. 749 (1936). 30

S T A T E POWER

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were produced or manufactured. And both derived from a recognition of the needs of the states for sources of revenue, and their proper claim to control of local affairs.40 T h i s happy marriage of ideas did not anticipate trouble arising from high-speed methods of modern business. As long as there was a perceptible pause between production and transmission, there was no clash. But business was impatient of such pauses. In one instance ore was shoveled from open pit mines to waiting cars, which took it outside of the state. T o the owners, the mining here seemed part of a continuous interstate movement, starting when the shovel bit into the ore, and hence not subject to a state excise tax. But the Court felt that there was a break in the movement, the mining preceding the interstate transportation. 41 More difficult was a state tax on the production of natural gas, including natural gas piped directly from the wells to points beyond the state. T h e Court found that the tax was computed on the value of the gas at the well. T h i s seemed to satisfy it that the tax was not imposed on interstate commerce. 42 T h i s should mark the compromise of the rule of Coe v. Errol with commercial methods, since only the most arbitrary line could be drawn in the process, when gas pumped from the wells was sent through the pipe lines to extrastate points. Closely analogous to the natural gas case was the situation presented by an excise tax on the generation of electricity, as applied to electric current going beyond the state. T h e process of generation being interdependent with that of transmission, and the transmission being at a speed of approximately 186,000 miles a second, 43 it would seem wildly fantastic to search in any physical sense for a moment when the final journey of the " " I t seems to us to be u n t e n a b l e to hold that a crop or a h e r d is e x e m p t f r o m taxation merely because it is, by its owner, intended for e x p o r t a t i o n . If such were the r u l e there w o u l d be in many states n o t h i n g b u t the lands a n d real estate to bear the taxes." C o e v. Errol, 116 U.S. 517, 527, 528 (1886). 1 1 Oliver Iron M i n i n g C o . v. Lord, 262 U.S. 172 (1923). " H o p e N a t u r a l G a s C o . v. H a l l , 274 U.S. 284 (1927). See also in accord F.ast O h i o Gas Co. v. T a x C o m m i s s i o n of O h i o , 283 U.S. 465 (1931). Cf. E u r e k a P i p e L i n e Co. v. H a l l a n a n , 257 U.S. 265 (1921). w See q u o t a t i o n s f r o m D r . R o b e r t A . M i l l i k a n in the South C a r o l i n a Power Co. v. South C a r o l i n a T a x Commission, 52 F. (2d) 515, 523 (E.D.S.C. 1931); B a r b e r , State Taxation of Electrical Generation for Interstate Transmission (1933) 3 IDAHO L . J . 1, 7.

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current began. T h e Court, for its purposes, did what the scientists refused to do. In sustaining the tax, it distinguished between the process of producing and the process of transferring. 44 In so doing it had recourse to that familiar escape from all inconvenient rules, the invocation of the practical nature of taxation and the "practical considerations" determining "what constitutes commerce." 45 W h e n it becomes necessary to call on practical considerations by name, it is a fair guess that a doctrine formerly revered is being cast aside. T h e r e is no quarrel here with the adjustment of doctrine to meet changed conditions. T h e rule taken from Coe v. Errol was based upon values which it could not adequately express, but which were frankly recognized in that case. T h o u g h the decision in the later case involves a departure from the form of a rule describing when interstate commerce begins, it does not deny the values which gave that form birth. It seems unfortunate that the C o u r t did not recognize more frankly that it was the values and not the form which were vital. 46 W h e r e the values are not clearly enunciated, an inquiry into their nature may well be largely speculative. In Coe v. Errol there was declared the need of reserving to the states adequate sources of revenue. 4 7 Since goods moving in interstate commerce are not to be taxed, the beginning of interstate commerce is, as to them, the beginning of an exemption. T h e considerations behind the dividing line become clear. Similar considerations will appear in connection with the principle that production and manufacture are subject to state power, 48 or are not interstate commerce. T u r n i n g again to the Pfost Case, certain values may be suggested, 49 such as: (1) the need of " U t a h Power and Light Co. v. Pfost, 286 U.S. 165, 181 (1932). 46Ibid. 179. 49 Justice Sutherland, for the Court, declared: " W h i l e conversion and transmission are substantially instantaneous, they are, we are convinced, essentially separable and distinct operations." Utah Power and Light Co. v. Pfost, 286 U.S. 165, 179 (1932). T h i s seems to be looking still to a physical separation and a moment when the "final journey" begins. 47 Coe v. Errol, 116 U.S. 517 48 See supra 127, 192. (1886). 49 See (1932) 42 YALE L. J. 94 if. for a careful discussion of this aspect of the Pfost case.

S T A T E POWER

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the state for this source of revenue; and (2) the essential fairness of this enterprise sharing in the tax burden, even as to an excise tax, and the unfairness in its escape from taxation. Another useful illustration with reference to the beginning of interstate commerce will appear in the efforts to conserve oil. T h e common law rules as to the taking of oil present an invitation to economic disaster, which invitation has had a frequent acceptance. W h e n each owner of a plot, however small, may sink a well and take what he can therefrom, and when his chance may be lost unless he produces promptly, production need have no relation to demand, and overproduction and extravagant waste will follow. A n order requiring curtailment of production would raise immediately, as between the individual property owner and the government promulgating the order, the issue of due process of law—the value to organized society as against the loss to the individual. T h a t question relates to the propriety of the order, admitting that it emanates from the proper source. T h e propriety of the source is a question of the commerce power. O n behalf of the state, in the case of the Oklahoma curtailment and proration law/'0 it could be urged that a natural resource was being shamelessly wasted and that there was no remedy which promised relief other than state action. T h e federal government was not seeking, nor was it prepared, to control the situation. Perhaps it was not capable of controlling the situation adequately. Action was imperative. T h e state law was sustained. T h e decision, so far as commerce was concerned, was put simply on formal grounds so stereotyped that values did not appear in the statement. T h u s the Court said: "Such production is essentially a mining operation, and, therefore, is not a part of interstate commerce, even though the product obtained is intended to be and in fact is immediately shipped in such commerce." 51 It would appear that the case was decided as it was because "Champlin Refining Co. v. Corporation Commission, 286 U.S. 210 (1932). "Ibid. 235. Compare Panama Refining Co. v. Ryan, 293 U.S. 388 (1935); notes (1935) 2 U. OF CHI. L. REV. 632; 48 HARV. L. REV. 798; 29 III. L. REV. 809; 1 0 IND. L . J . 3 4 3 .

i g6

STATE POWER

taking oil looked like mining ore, and not because a contrary decision would have produced disastrous results. The values coincided with the familiar formulation. This much having been said with regard to the beginning or interruption of interstate commerce, a comment should be added as to efforts to place the end of such commerce. In many cases the Court has sought to find where interstate commerce ends. Among these attempts, the original-package idea may be chosen as presenting a useful sample. A compromise in Brown v. Maryland82 formed the beginning. The Court argued that the power in the states to tax the sale of imported articles at wholesale was equivalent to a power to prohibit importation, since the tax might be put so high that none would be sold, and accordingly importation for sale would cease. It was met with an obvious extension of that argument. If no foreign goods could be sold at retail, then none would be sold at wholesale. If no foreign goods could be kept by consumers, then none would be sold at retail. Logically it would seem that, under the broad principle which the Court had elected to consider, foreign goods could not be taxed at all. This was surely carrying the protection of imports to ridiculous extremes, to the detriment of the states. Unwilling to remove so large a subject from the taxing power of the states, the Court was forced to find "a point of time when the prohibition ceases." 53 Such time was perhaps reached when the thing imported was "mixed up with the mass of goods in the country," 54 but it was not reached while the article was "remaining the property of the importer, in his warehouse, in the original form or package in which it was imported." 65 The original-package doctrine thus had its birth in the development of a limitation on state power to tax imports from foreign countries. In that field, it is still the law.06 The extenE 12 Wheat. 419 (1827). A state license tax on persons selling foreign articles wholesale was held invalid. See supra 38. ® Brown v. Maryland, 12 Wheat. 419, 441 (1827). B "Ibid. Ibid. 442. 58 Anglo-Chilean Nitrate Sales Corp. v. Alabama, 288 U.S. 318 (1933); May v. New Orleans, 178 U.S. 496 (1900); Cook v. Pennsylvania, 97 U.S. 566 (1878);

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sion to interstate commerce was slow. In the License Cases," the Court refused to bring it under the egis of the commerce clause and apply it to a state regulation of the sale of intoxicating liquors. Similarly, in Woodruff v. Parham58 and in Brown v. Houston,89 it failed of acceptance as a check on state taxing power. Many years later it seemed to have achieved recognition in matters of state taxation,60 but that recognition proved to be short-lived.61 By 1888, in matters of regulation, the Court experienced a change of heart.62 And in 1890, so far as the original package was concerned, the License Cases were overruled by Leisy v. Hardin.** This case marked the full acceptance of the original-package doctrine as a restraint on the regulatory powers of the states, with reference to goods coming through interstate commerce. T h e test for the ending of such commerce, thus presented, had the sound of delightful simplicity, an act apparently readily recognizable. T h e termination of interstate commerce was viewed as a matter of fact, which could be readily observed. However, even in its happiest days, the test did not produce the certainty which might have been expected from a mechanical rule. Thus it failed of application to certain state statutes, such as those prohibiting the sale of oleomargarine colored like butter,84 the sale of artificially colored coffee beans,65 the possession or sale of game birds during the closed season,68 and the sale of black powder Low v. Austin, 80 U.S. 29 (1871); notes (1935) 21 VA. L. REV. 433; (1933) 46 HARV. L. REV. 1024; (1933) 42 YALE L. J. 963. See also Sharp, Movement in Supreme Court Adjudication (1933) 46 HARV. L. REV. 361, 604. "Pierce v. New Hampshire, 5 How. 504 (1847). »75

U.S. 123

(1868).

" 1 1 4 U.S. 622 (1885). See also American Steel and Wire Co. v. Speed, 192 U.S. 500 (1904). "Standard Oil Co. v. Graves, 249 U.S. 389 (1919); Askren v. Continental Oil Co., 252 U.S. 444 (1920); Texas Co. v. Brown, 258 U.S. 466 (1922). ® Sonneborn Bros. v. Cureton, 262 U.S. 506 (1923). " B o w m a n v. Chicago and Northwestern Ry., 125 U.S. 465 (1888). • 135 U.S. 100 (1890). See Dowling and Hubbard, Divesting an Article of its Interstate Character (1920, 1921) 5 MINN. L. REV. 100, 129. M Plumley v. Massachussetts, 155 U.S. 461 (1894). "Crossman v. Lurman, 192 U.S. 189 (1904), "Silz v. Hesterberg, g u U.S. 31 (1908).

S T A T E POWER for use in coal mines unless the powder was in packages of a specified character. 67 Almost from the first, there was confusion as to what constitutes an "original package," 68 and the implication has been made that there was moral turpitude involved in the attempt to escape the incidence of state laws by the use of packages of unorthodox shipping size.69 T h e frequent refusal to consider small packages as "original packages" has minimized the effect of the doctrine as a check on state laws, 70 since the states are normally interested in protecting the ultimate consumer who buys in small containers. T h o u g h the doctrine has been relied on successfully since Leisy v. Hardin,71 its existence has been a checkered one, marked by exceptions and qualifications. 72 In many cases it is clearly inapplicable. 7 3 Rarely has it imposed any serious restraint on state action. O n the other hand, rather far-fetched analogies have been used to explain why state laws should be allowed. T h u s the Court could speak of a change in pressure on natural gas and the transfer of the gas from main lines to small service lines as "like breaking the original package." 7 4 Again, in what must have been a whimsical mood, the Court could suggest that beheading and gutting fish constituted breaking the original package. 75 A p a r t from the setting in which it was devised, the originalpackage doctrine has manifestly been "more honored in the breach than in the observance." It has wrought occasional vexaWilliams v. Walsh, 2 2 2 U.S. 4 1 5 ( 1 9 1 2 ) . May and Co. v. New Orleans, 1 7 8 U.S. 4 9 6 ( 1 9 0 0 ) ; Austin v. Tennessee, 1 7 9 U.S. 3 4 3 ( 1 9 0 Q ) ; Cook v. Marshall County, 1 9 6 U.S. 2 6 1 ( 1 9 0 5 ) ; Purity Extract Co. v. Lynch, 2 2 6 U.S. 1 9 2 ( 1 9 1 2 ) ; Price v. Illinois, 2 3 8 U.S. 4 4 6 ( 1 9 1 5 ) ; Hebe Company v. Shaw, 2 4 8 U.S. 2 9 7 ( 1 9 1 9 ) . 69 Austin v. Tennessee, 1 7 9 U.S. 3 4 3 , 3 6 1 (1900). 70 See cases cited supra, note 68. 71 Schollenberger v. Pennsylvania, 1 7 1 U.S. 1 ( 1 8 9 8 ) ; Collins v. New Hampshire, 1 7 1 U.S. 3 0 ( 1 8 9 8 ) ; Seelig v. Baldwin, 7 F. Supp. 7 7 6 (S.D.N.Y. 1 9 3 4 ) . See Hebe Co. v. Shaw, 2 4 8 U.S. 2 9 7 ( 1 9 1 9 ) . 72 See Wagner v. Covington, 2 5 1 U.S. 9 5 (1919). 73 See Packer Corporation v. Utah, 2 8 5 U.S. 1 0 5 ( 1 9 3 2 ) state prohibition of certain advertising posters; Mutual Film Corp. v. Kansas, 2 3 6 U.S. 2 4 8 ( 1 9 1 5 ) state censorship of moving pictures. " E a s t Ohio Gas Company v. T a x Commission of Ohio, 283 U.S. 465, 471 ( 1 9 3 1 ) . A state excise tax, measured by gross receipts from gas piped from other states, was sustained. 76 Gulf Fisheries Co. v. Maclnerney, 2 7 6 U.S. 1 2 4 , 1 2 7 (1928). m

68

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»99

tion in lesser matters. Its one major accomplishment in the field of regulation 7 6 was promptly dealt w i t h by federal statutes. 77 A substantial blow to whatever r e m a i n i n g prestige the rule may have had was delivered in Baldwin v. Seelig,78 wherein was presented an interesting conflict. N e w Y o r k may regulate the price of milk produced within the state. 79 Obviously, if this regulation is to be truly effective in aid of New York producers, they must be protected f r o m disastrous competition for the New York market from producers in other states. Otherwise the statute enacted in their interests may in large measure prove to be a boomerang. B u t a vital policy, rigidly adhered to, is that a state cannot, in the economic interests of its people, impose restraints upon trade from other states. O n the one hand, the C o u r t had been w i l l i n g to accord a large amount of liberty to the states in the solution of their economic problems. O n the other hand, the C o u r t was not willing to depart from the idea that n o state by its laws can "place itself in a position of economic isolation." W h e n these two policies came into conflict, the latter prevailed. In dismissing the argument that the breaking of the original package furnished a point of time at which state power w o u l d attach, the C o u r t said: In brief, the test of the original package is not an ultimate principle. It is an illustration of a principle. It marks a convenient boundary and one sufficiently precise save in exceptional conditions.80 77 Wilson Act, 26 Stat. 313. " L e i s y v. Hardin, 135 U.S. 100 (1890). " 2 9 4 U.S. 511 (1935); notes (1935) 35 COL. L. RF.V. 280; 48 HARV. L. RFV. 1437; 10 Wis. L . R E V . 388; 21 V A . L . R E V . 433. " N e b b i a v. New York, 291 U.S. 502 (1934). See Hale, The Constitution and the Price System: Some Re/lections on Nebbia v. New York (1934) 34 COL. L. R E V . 401. " B a l d w i n v. Seelig, 294 U.S. 511, 526, 527 (1935). T h e Court made reference to the original-package doctrine in Whitfield v. Ohio, 297 U.S. 431 (1936). Speaking of the effect of the Hawes-Cooper Act, Justice Sutherland said: "importation is relieved from the operation of any rule which recognizes a right of sale in the unbroken package without state interference—a right the exercise of which has never been regarded as a fundamental part of the interstate transaction but only as an incident resulting therefrom (citing Rhodes v. Iowa, 170 U.S. 412 [1898]). T h e interstate transaction in its fundamental aspect ends upon delivery to the consignee." T h i s introduction of the novel distinction between fundamental parts of interstate transportation and incidents resulting therefrom, seems to be designed to make the death of the original-package doctrine painless, by means of the suggestion that it never really lived.

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Unfortunately, the exceptional conditions are not known, and until they are known or clearly surmised the boundary can have but little value. If the Court is willing, as the Nebbia Case indicates, to accord a large amount of autonomy to the states in the solution of their economic problems, it seems necessary that they be protected from disastrous sniping from across state lines. T h e remedy may be legislative, as by a statute similar to the WebbKenyon Act. 81 Other illustrations of efforts to mark the termination of interstate commerce might be chosen. Difficult distinctions appear in cases dealing with the assembling or installing, within a state, of materials acquired from without. T h u s it may not be easy to see why the term, interstate, should be applied to the assembling of ice-manufacturing machinery, 82 while intrastate is more appropriate to the erection of lightning rods,83 the installation of a railway signal system,84 and the construction of a bridge. 85 Such cases afford cumulative evidence of the difficulty attendant upon marking generally the point at which interstate commerce ends. One is rather forcefully reminded of the ripples caused by a rock thrown into a still pool. It would be a futile task to attempt to mark precisely the point at which the ripples end. Similarly, it seems futile to view as a factual determination the point at which interstate commerce ends. At times it will be wise, in the interests of certainty, to mark a dividing line. It would seem well to realize that such divisions are rules of convenience, and not observations of a fact phenomenon. It would also be well to refuse to let repetition obscure their real nature, so that rules of convenience may not become burdensome technicalities defeating their own ends. 8 1 37 Stat. 699. See Black, Significance of the "Divesting Theory" in the Regulation of Milk (1935) 23 KY. L. J. 589; note (1935) 21 VA. L. REV. 433. 82 York Mfg. Co. v. Colley, 247 U.S. 21 (1918). 83 Browning v. Waycross, 233 U.S. 16 (1914). 84 General Railway Signal Co. v. Virginia, 246 U.S. 500 (1918). 85 Kansas City Structural Steel Co. v. Arkansas, 269 U.S. 148 (1925); note

(1926) 3 9 H A R V . L . R E V . 489.

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201

In looking then to the use of "interstate commerce" from the point of view of state power, it seems clear that the Court has been concerned fundamentally with the problem of the effectiveness of local as against national control, and the needs of the state as against the needs of the nation. From the point of view of regulation, that which can best be handled by the states will be left to the states. From the point of view of taxation, a fair adjustment must be made with the states to enable them to finance their local needs. In the case of regulation, state laws sustained may be described in terms of intrastate commerce, or in terms of interstate commerce which the staie power is allowed the right to reach. Of course, from results come formulations, and the formulations may control, even after their bases are lost sight of. Activities which have been called intrastate commerce will normally continue to be so called, as will other activities which bear to them some pronounced similarity. In addition, the established norm of interstate commerce—movement from state to state—will always affect the classification of activities in this connection. Where conduct has an intimate relation to this movement, the state power may reach it, but it must reach it by the aid of some of the doctrinal expressions other than the denial of the existence of interstate commerce.

X THE

WILL

OF CONGRESS A N D

AFFECTING

INTERSTATE

STATE

LAWS

COMMERCE

UNFORTUNATE terminology breeds many paradoxes. It has been seen throughout this discussion that confusion has often resulted from the words "exclusive" and "concurrent," "direct" and "indirect" burdens, "regulating" and "affecting." 1 A conventional expression is that "Congress has the exclusive power to regulate interstate commerce," 2 and yet it is knowledge of the most elementary sort that state laws control that commerce to a large degree. Not infrequently the state act is superseded 1

See supra 29. 68 ff., 92 ft. * A m y r i a d of illustrations may be given, but a few will suffice here. Story declared of the power to regulate commerce that it h a d been "settled, u p o n the most solemn declaration, that the power is exclusive in the government of the U n i t e d States." COMMENTARIES ON THE CONSTITUTION (1833) § 1067. I n Philadelphia a n d R e a d i n g R . R . v. Pennsylvania 15 Wall. 232, 279 (1873), Justice Strong said of the power to regulate interstate commerce: " I n the early decisions of this Court it was said to have been so entirely vested in Congress that 110 part of it can be exercised by a State." For this, Justice Strong cited G i b b o n s v. Ogden, 9 Wheat. 1 (1824). T h i s view is clearly implied in that case. Fuller. C.J., in United States v. E. C. K n i g h t Co., 156 U.S. 1, 1 1 (1894) said: " O n the other hand, the power of Congress to regulate commerce among the several states is also exclusive." Day, J . , in New Mexico v. Denver and R i o G r a n d e R . R . , 203 U.S. 38, 49, 50 (1906) said: " I t has been too frequently decided by this Court to require restatement of the decisions that the exclusive power to regulate interstate commerce is vested by the Constitution in Congress." A g a i n in Sligh v. K i r k w o o d , 237 U.S. 52, 57 ( 1 9 1 5 ) the same Justice said: " T h a t Congress has the exclusive power to regulate interstate commerce is beyond question." M c K e n n a , J . , in Heisler v. T h o m a s Colliery Co., 260 U.S. 245, 259 (1922): " T h e action of the state as a regulation of interstate commerce does not depend upon the degree of interference; it is illegal in any degree." Vandevanter, J . , in Pennsylvania v. West Virginia, 262 U.S. 563, 596 (1923); " B y the Constitution, art. 1, sec. 8, cl. 3 , the power to regulate interstate commerce is expressly committed to Congress and therefore impliedly forbidden to the states." Sutherland, J . , in Helson and R a n d o l p h v. Kentucky, 279 U.S. 245, 248 (1929); " R e g u l a t i o n of interstate a n d foreign commerce is a matter committed exclusively to the control of Congress." See also Cooke, The Pseudo-Doctrine of the Exclusiveness of the Pozuer of Congress to Regulate Commerce ( 1 9 1 1 ) 20 YALE L . J . 297; N e e d h a m , The Exclusive Power of Congress over Interstate Commerce ( 1 9 1 1 ) 1 1 COL. L . REV. 2 5 1 ; GAVIT, T H E COMMERCE CLAUSE (1932)

1

ff.

T H E W I L L OF CONGRESS

203

by a federal "regulation" under the commerce power which supplies the same kind of rule as that previously obtaining under state law. 3 Again that landmark of the law of commerce, Cooley v. The Board of Wardens, divided interstate commerce into two classes, as to one of which the federal power was deemed exclusive and as to the other it was not, 4 that is, there was a partial but not a complete exclusiveness recognised. Statements of exclusiveness, containing no qualification, must ignore this case and the many cases approving it. 5 Furthermore, a declaration that the power of Congress is exclusive must throw into the discard the doctrine of the effectiveness of the silence of Congress. 6 If, under the Constitution, the states have no power in the premises, then the silence of Congress is utterly immaterial. T h e confusion will appear in the language of the Court when, forgetting or ignoring the expressions of exclusiveness, it declares for a concurrent power. 7 It becomes clear that when it is said the power of Congress to regulate interstate commerce is exclusive, some of the words are being used in a Pickwickian sense. T h a t practice is permissible among the initiated, but hardly enlightening to others. T h e development of this use of "regulation" and "exclusive" powers has been documented elsewhere in this discussion. 8 A correlation may be made here. In a factual sense, any rule which includes within its scope the conduct of persons while engaged in commerce, is a regulation of that commerce, and states constantly make and enforce such rules. A second mean•See, for example, St. Louis Iron Mountain and Southern R y . v. Hesterley, «28 U.S. 70« (1913) arising under Employers' Liability Act, 35 Stat. 65. * 12 How. 299 (1851). 5 See supra 72 If. •See B i k l i , The Silence of Congress (1927) (1 HARV. L. RF.V. 200. 7 Chief Justice (then Justice) Hughes has said: " I t has long been established by the decisions of this Court, that, although state laws concerning pilotage are regulations of commerce, they fall within the class of powers which may be exercised by the states until Congress shall see fit to act." Anderson v. Pacific Coast Steamship Co., 225 U.S. 187, 195 (1912). In his dissent in Di Santo v. Pennsylvania, 273 U.S. 34, 43, 44 (1927) Justice Stone declared: " A s this Court has many times decided, the purpose of the commerce clause was not to preclude all state regulation of commerce crossing state lines." A n d for an assumption of this view, see note (1913) 2 CALIF. L . REV. 55. »See supra 92, 93.

204

T H E WILL OF CONGRESS

ing of "regulation" is as part of a conclusion of law—a formula for expressing a result. Many considerations, of which the formula gives no inkling, may contribute to the result. T h e statement that an exclusive power resides in Congress necessitates the adoption of this latter use. T h e terminology encountered here appears to be but the result of a mixing of conflicting views going back to the earliest cases. Marshall saw the interstate commerce power as exclusive in Congress.9 This power, for him, involved the dealing with interstate commerce, as such, for commercial purposes. This the states could not do, although, under their reserved powers, they could often accomplish results quite similar to, if not identical with, those achieved under the commerce power. 10 Marshall looked to a conception of the nature of the power, which was concerned largely with the purposes to be achieved by its exercise. Later 1 1 the Court ceased to look to the nature of the power, and instead it looked to that upon which the power operated—the subjects of the power. Subsequent terminology has without discrimination accepted these two conflicting approaches. Where reference is made to the subjects alone, a power wholly exclusive in Congress is an impossibility. It would demand the removal from state control of a vast range of activities within the state. T h e exclusive-power terminology is accordingly the survival of Marshall's idea, which did not unduly limit the state in its normal and proper functions. But the adoption of terminology based on Marshall's conception of the nature of the power has not precluded the use and gradual evolution of the idea of Taney and his associates as to the subjects of the power. T h e categories of "burdens" on interstate commerce, of state laws "directly affecting" interstate commerce, etc., are natural concomitants of Marshall's doctrine. T h e theories as to the silence of Congress are the outgrowth of Taney's. When diverse theories cohabit, the miscegenation may produce strange progeny. It may be surprising that the results of this particular mating have not been more curious. "Supra 37. u C o o l e y v. Board of Wardens, 12 How. 299 (1852).

10 See

supra 37, 38.

T H E WILL OF CONGRESS

205

Marshall's idea demanded some such complement as that expressed in the doctrine prohibiting "burdens" on interstate commerce. 12 T h e reserved power of the states to provide for the safety, health, and morals of their own people, the "police power," coexists with the commerce power of Congress. In the effort to accomplish those proper purposes, the states enact statutes which necessarily extend to the activities of persons engaged in interstate commerce. This does not involve state regulations of interstate commerce, under Marshall's view; and yet interstate commerce will on occasion be done substantial injury. T o take a modern example, a "Blow Post Law," designed in the interest of safety of the public, seriously disrupted freight and passenger service without any reasonably compensatory gain in the public safety. 13 T h e limitation on state action, indispensable in meeting such cases, is given doctrinal form in the inhibition against "burdens" or "direct burdens" on interstate commerce. 14 Taney's idea of a concurrent power over commerce, the accompanying division of the subjects of the power over commerce into those demanding uniform and those admitting of local regulation, and the derivative from this division giving effectiveness to the silence of Congress, could have been developed without the need for the "burdens" idea. They together supply a doctrinal basis for checking state action, which seriously hinders interstate commerce. That is, this scheme of things contains within itself a prohibition against hurtful state laws. States cannot deal with those subjects which demand uniformity of regulation. There is nowhere presented a controlling definition of a "subject." Activities thus admit of " S e e Brown v. Maryland, 12 Wheat. 419 (1827); Wilson v. Blackbird Creek Marsh Co., 2 Pet. 245 (1829). " S e a b o a r d Air Line Ry. v. Blackwell, 244 U.S. 3 1 0 (1917). 14 Speaking for the majority in Seaboard Air Line R y . v. Blackwell, 244 U.S. 3 1 0 (1917), Justice McKenna said at page 316: " T h e facts so specified . . . compel the conclusion that the statute is a direct burden upon interstate commercc, and, being such, is unlawful." Three members of the Court dissented, on the ground that the regulation in question was in the class which the state was entitled to enact, in the absence of Congressional action. T h u s the majority talked in terms of burdens, while the minority talked in terms of the division of subjects of the power. From a doctrinal viewpoint, the majority and the minority were speaking different languages.

T H E W I L L OF CONGRESS

2O6

division into many subjects. Undesirable state legislation affecting interstate commerce is accordingly readily described as dealing with a subject which demands uniformity of regulation. T h e fact that it is deemed undesirable for reasons not fitted into the due process limitation readily means just this. T h e early development of the doctrines thus presented appeared in the preceding chapters. T h e r e i n was shown the division of the subjects of the power over commerce, and the enthronement in doctrine of the will of Congress, 15 as well as the development of checks on state power, which became described as prohibition of burdens on interstate commerce. 16 T h e fusion of conflicting theories may be made apparent through the consideration of a few opinions of recent years. THE

R E M O V A L OF THE F E D E R A L P O W E R AS AN TO

STATE A C T I O N — T H E

COMPLEMENTARY

OF S T A T E AND FEDERAL

OBSTACLE FORCE

LAWS

T h e concurrent (if this dangerous term may be used) development and fusion of these diverse theories might be traced together. However, it seems conducive to clarity to consider them separately, so far as may be, and supplement with cross references. Accordingly, the doctrine of Cooley v. The Board of Wardens, which, as has been seen, was by 1890 vastly modified, may be observed with its implications in the years thereafter. T w o cases which have given the propounders of constitutional doctrine great travail are In re Rahrer,17 arising under the Wilson Act, and Clark Distilling Company v. Western Maryland Railway Company,18 dealing with the Webb-Kenyon Law. T h e y have been elaborately and ably discussed. 19 Because of See supra 72 IT. See supra 90 ff. " 1 4 0 U.S. 45 (1891). " 2 4 2 U.S. 311 (1917). 19 Kerr, The Webb AcI (1913) 22 YALE L. J. 567; Denison, States Rights and the Webb-Kenyon Liquor Law (1914) 14 COL. L. REV. 320; Powell, The Validity of State Legislation under the Webb-Kenyon Law (1917) 2 So. L. Q. 112, Rogers, The Constitutionality of the Webb-Kenyon Bill (1913) 1 CALIF. L. REV. 499; Rogers, Interstate Commerce in Intoxicating Liquors before the Webb-Kenyon Act (1916) 4 VA. L. REV. 174, 288, 353; Rogers, The Webb-Kenyon Decision (1917) 4 VA. L. REV. 558; Rogers, The Power of the States over Commodities Excluded by Congress from Interstate Commerce (1915) 24 YALE L. J. 567; Rogers,

T H E W I L L OF CONGRESS

207

their particular value here, a brief examination of them may be made. In Leisy v. Hardin?0 the original-package doctrine was applied to state regulation. 21 Strangely, it seems to have been felt that its earlier services justified this extension, whereby the states were denied the right to prohibit the sale of intoxicating liquors in original packages. T h i s largely nullified state prohibition laws, defeating the aims of the advocates of prohibition. Incidentally the prohibition laws of dry states served to enrich the coffers of their unregenerate neighbors. T h e situation was more than could be endured by the "drys." T h e elimination of the "original package saloon" came promptly after the decision in Leisy v. Hardin, which gave it judicial sanction. T h e Wilson Act, 22 passed in 1890, provided that intoxicating liquors transported into a state should "upon arrival in such state" be subject to the laws of the state to the the same extent as though they had been produced therein. T h e day after this act took effect, Rahrer was arrested for violation of the Kansas prohibition law, which had been passed prior to the Wilson Act. His offense consisted of the sale in original packages of intoxicating liquors received from without the state. Rahrer's effort to obtain release on habeas corpus met with failure when his case reached the Supreme Court. 23 T h e theory of the Court in sustaining the combined effect of the federal and state statute seems reasonably clear. Cases marking the evolution of the doctrine of Cooley v. The Board of Wardeiis into a rule for the ascertainment of the "will of Congress," had but recently been decided. 24 A process of quotation and paraphrase will show its application in the instant case. " T h e power of Congress to regulate commerce among the several states, when the subjects of that power are national in State Legislation under the Webb-Kenyon Act (1915) 28 HARV. L . REV. 225; Rogers, Unlawful Possession of Intoxicating Liquors and the Webb-Kenyon Act (1916) 16 COL. L. REV. 1; D o w l i n g and Hubbard, Divesting an Article of Its Interstate Character (1920, 1921) 5 MINN. L. REV. 100, 253. » 135 U.S. 100 (1890). n See supra 196 ff. " 2 6 Stat. 313. "In re Rahrer, 140 U.S. 545 (1891). " S e e supra 82 ff.

2o8

T H E WILL OF CONGRESS

their nature, is exclusive." 25 The failure of Congress to exercise this exclusive power is "an expression of its will that the subject shall be free from restrictions" imposed by the states.26 The transportation of intoxicating liquors among the several states is a subject national in its nature, and hence the silence of Congress indicated its will that the subject be free from st?te action. But the crux of the matter was the will of Congress, of which its silence was determinative. The determination based on silence must perforce yield to a determination based upon actual declaration. Thus the obstacle to state action was removed. The victory of prohibition in the courts proved not to be as sweeping as its friends had hoped. It was later judicially determined that "arrival" in a state, as used in the Wilson Act, did not mean merely the passing of the state line. 27 Rather it meant "arrival at the point of destination and delivery there to the consignee." 28 Accordingly, in interstate shipments, state power did not attach until the consignee had his liquor. The efforts of the reformers had made the acquisition of liquor slightly more inconvenient and had introduced as a requisite a bit of foresight, but that was all. If one would have intoxicants he must order them in advance. Distributors in wet states eagerly courted orders from consumers in dry territory, and the mail-order business flourished. It was in the delightful situation of having its local competitors eliminated while it remained untouched. Manifestly this did not furnish a solution satisfactory to anyone except the mail-order houses. Yet this situation continued for a material period, largely because of constitutional difficulties anticipated in the passage of a more stringent law.29 The change came with the Webb-Kenyon Act, passed in 1913. 3 0 25

In re Rahrer, 140 U.S. 545, 5 5 5 (1891).

21

Rhodes v. Iowa, 170 U.S. 4 1 2

26

Ibid.

(1898). See Whitfield v. Ohio, 297 U.S. 431

(1936). 28 Rhodes v. Iowa, 170 U.S. 4 1 2 , 426 (1898). 29 T h e Webb-Kenyon Bill was vetoed by President T a f t on the ground of unconstitutionality. 49 Cong. Record 4291 ( 1 9 1 3 ) . 30 37 Stat. 699. For a useful discussion of this A c t and its antecedents, see Dowling and Hubbard, supra note 19.

THE WILL OF CONGRESS

209

Naturally enough, constitutional sanction for the WebbKenyon Act was sought largely in the success of its predecessor. The title of the later act proclaimed it as "An Act Divesting Intoxicating Liquors of Their Interstate Character in Certain Cases." The manifest thought in the later statute was that, since Congress had succeeded in moving the termination of interstate commerce back one step from the point prescribed by the judges who made the original-package rule, it might as well move the termination back two steps or more. Wherein lay any limitation upon Congress, saying one step you may go but no farther? The Wilson Act had far narrower scope than has its successor. The point has been made that the former merely took away a segment of interstate commerce in the articles in question, but recognized the rest as subsisting, while the latter eliminated the whole thing. 31 It was something like the difference between chopping off the tail of a dog and shooting the dog. The Webb-Kenyon Act put an end to certain interstate commerce, in that by its terms it prohibits the shipment or transportation of intoxicating liquors in interstate commerce into any state, territory, or district, of the United States, which liquor is intended to be dealt with in any way in violation of the law of such state, territory, or district. The Court insisted upon the similarity of the two statutes, saying "the power to regulate which was manifested in the Wilson Act, and that which was exerted in enacting the WebbKenyon Law, are essentially identical, the one being but a larger degree of exertion of the identical power which was brought into play in the other." 32 Thus it appears that to the Court, the theory of In re Rahrer was sufficient to support the later decision. In sustaining the Webb-Kenyon Act, the Court adverted to the division of the subjects of interstate commerce between those which do and those which do not require uniformity, as it had in the former case. A fatal defect in the argument for • Dowling and Hubbard, supra note 19. " C l a r k Distilling Co. v. Western Maryland Ry. Co., 242 U.S. 3 1 1 , 330 (1917).

2 lO

T H E WILL OF CONGRESS

the distilling company was in the failure to recognize that this division had ceased to have the character ascribed to it in Cooley v. The Board of Wardens,33 of one deriving from the Constitution, the effect of which was by force of the Constitution itself inexorably to deny the states the power to deal with subjects requiring uniformity, which subjects were ascertained by the Court in its position of interpreter of the Constitution. T h e Clark Distilling Case could not have been decided as it was without modifying the principles announced in the Cooley Case. But that modification had already taken place. T h e division had become only a means of ascertaining the "will of Congress," which will was the operative fact.34 As in the Rahrer Case, a fictitious will could not stand against a will expressly declared. T h e doctrine of "divesting an article of its interstate character" accordingly seems wholly consistent with what had preceded it. T h e name given to it may apparently impute to Congress a feat of legerdemain. If Congress were changing the factual character of a situation in interstate commerce, it would deserve a reputation as a dealer in dark magic. But obviously the implication is misleading. Attention has already been directed to the use of "interstate commerce" as a matter of fact and again as a matter of law, and to the relation between these uses. What Congress did here was to remove certain legal consequences which had formerly attended upon an activity customarily considered to be interstate commerce as a matter of fact. In other words, interstate commerce as a matter of law was changed to the extent and for the purposes desired. These cases, exhibiting the use of theories heretofore developed, portray the ineptitude of those theories. If the Court had frankly adopted the idea of a concurrent power over interstate commerce, explanations would be far simpler. 35 However, even though insistence be made upon an "exclusive" power in Congress, a fairly adequate statement may be made. Congress has an exclusive power to regulate interstate 34 But see Bikle, supra note 6, at 213. 12 How. 299 (1852). " S e e Powell, supra note 19, at 137.

33

T H E W I L L OF CONGRESS

211

commerce in the sense used by Marshall. 3 6 In that sense, the state statutes in these cases were not regulations of interstate commerce, since they were manifestly designed to promote the health and morals of the people in the dry states, and were not designed primarily for trade benefit. G r a f t e d on to Marshall's theory was that of the division of the subjects of the power over commerce, and the exclusion of the states from interstate commerce national in its nature. If complete consistency is to be had, this must be looked u p o n not as a limitation on states' powers to regulate interstate commerce, because they had no such powers, eo nomine, but as a limitation on whatever powers they had, called the police power for lack of a better term. T h i s limitation on the states' police power had been construed to be one d e p e n d i n g on the implied will of Congress. Accordingly, Congress c o u l d remove the limitation by the declaration of its will. 3 7 T h e other possibility of maintaining consistency with the statement that Congress has an exclusive power over interstate commerce, is to treat the expression "a regulation of interstate commerce" as a term of art which, w h e n applied to state statutes means simply that the statutes are invalid. If, by definition, a state regulation of interstate commerce means a state statute which is invalid under the commerce clause, then obviously the power of Congress is exclusive. T h o u g h the C o u r t has not been happy in the expression of these doctrines, it has been wise in that the doctrines developed leave to it great freedom of decision. It w o u l d be a shocking thing, if state and federal governments acting together were prevented from achieving the end desired by both, simply because of the division of power between them. Such results may exist by reason of gaps in the system of our government, b u t they should require c o m p e l l i n g acts of constitutional exegesis to establish them. 3 8 " S e e Whitfield v. Ohio, 297 U.S. 431 (1936). " C o m p a r e Pigeon River Improvement Slide and Boom Co. v. Cox, 291 U.S. 138, 160 (1934). " S u c h a situation seems to be presented, for example, in the railroad pension case, Railroad Retirement Board v. A l t o n R . R., 295 U.S. 330 (1935).

T H E W I L L OF CONGRESS

212 THE WILL

OF CONGRESS AS T H E W I L L

OF T H E

COURT

It is more than suspected at times that the "will of Congress" as so frequently used, in cases where Congress has been silent, is simply the will of the Court. It is self-evident that every decision the Court makes is in a very real sense the will of the Court. Yet it seems clear that in its invocation of the will of Congress, the Court is not merely drawing a red herring over the trail of the exercise of its free and untrammeled choice. It has been clear that the Court is not concerned with the will of Congress in the sense of the various ideas and desires of the individuals who comprise the Congress at any particular time. Manifestly many of those individuals never thought of the matter in question. Nor is it concerned primarily with an appraisal of the complexion of any particular Congress at any specified time. T h e problem is not identical with the ascertainment of the intent of Congress, as that phrase is commonly used in the construction of a given statute. Rather the Court is seeking consistency with the tendency manifested by the relevant action of Congress. T h u s it seems fair to say the Court seeks consistency with the policy apparent in federal legislation, so far as the Court can ascertain that policy. T h e Court has to guess, and in guessing it is likely to conceive that its wisdom coincides with the wisdom of Congress. Where no relevant policy can be perceived, the will of Congress is nonexistent. 39 In effect, then, this approach emphasizes the idea that state statutes, having a material relation to interstate commerce, are to fail if they do not fit into the federal legislative policy for such commerce. T h a t scheme of things involves three familiar categories: (1) subjects which are to be free from all regulation, at least for the time being; (2) subjects which Congress has regulated directly or through its agencies; and (3) subjects which Congress desires to be left to the states, at least for the time being. Congress may obviously shift subjects from the first class to the second class, and from the third class to the 89

See supra 207 if.

T H E W I L L OF CONGRESS

213

second class. It may also shift subjects from the first class to the third class. 40 T h e Court has the task of determining the class with which a questioned state statute deals. Its determination may be unsatisfactory to Congress, in which case Congress will correct it. T h i s may best be seen in those cases where the Court is concerned with a state statute, against which the charge is made that it is inconsistent with, or is supplanted by, a federal act. 41 It requires no argument to show that when Congress has provided all of the regulation it deems desirable for a given bit of interstate commerce, state action

is excluded. 4 2

The

trouble lies in determining the extent to be given to the federal statute—a problem of construction. T o adopt the expression of the Court: " U n t i l Congress entered that field, the states could legislate."

43

But the query will arise: W h a t is the field?

T h u s where Congress has regulated the brakes and other safety appliances on locomotives, 44 but has not dealt with headlights, does the field include all of the parts of locomotives so that state regulations of headlights are excluded, or is the field confined to appliances such as brakes, so that headlights comprise another field?45

Every federal statute involves a determination of the

" Clark Distilling Co. v. Western Maryland R y . , «4« U.S. 3 1 1 (1917). For typical examples see Federal Employers' Liability Act, 35 Stat. 65 and the Federal Safety A p p l i a n c e Act, 27 Stat. 5 3 1 . T h e former act supplanted state laws dealing with injuries to persons employed in interstate commerce. Mondou v. New York, New Haven and H a r t f o r d R . R . , 223 U.S. 1 (1912); Seaboard Air L i n e R y . v. Horton, 233 U.S. 492 (1914). T h e latter act superseded state legislation dealing with safety appliances. Southern R y . v. R a i l r o a d Commission of Indiana, 236 U.S. 439 (1915). Cf. Atlantic Coast Line R . R . v. Georgia, 234 U.S. 280 (1914). " T h e cases are very numerous. See, for example, Gilvary v. Cuyahoga Valley R y . , 292 U.S. 57 (1934); Pigeon R i v e r Improvement Slide and Boom Co. v. Cox, 291 U.S. 138 (1934); Mintz v. Baldwin, 289 U.S. 346 (1934); T r a n s i t Commission v. United States, 289 U.S. 1 2 1 (1923); Dickson v. U h l m a n n Grain Co., 288 U.S. 188 (1933); Chesapeake and Ohio R y . v. Martin, 283 U.S. 209 (1931); J a m e s Stewart and Co. v. R i v a r a , 274 U.S. 614 (1927); Missouri Pacific R . R . v. Porter, 273 U.S. 341 (1927); N a p i e r v. Atlantic Coast L i n e R . R . , 272 U.S. 605 (1926); Alabama a n d Vicksburg R y . v. Jackson and Eastern R y . , 271 U.S. 244 (1926). 41

" S o u t h e r n R y . v. R a i l r o a d Commission of Indiana, 236 U.S. 439, 446 (1915). " 2 7 Stat. 5 3 1 . " A state statute prescribing a type of headlight was sustained. Atlantic Coast L i n e R . R . v. Georgia, 234 U.S. 280 (1914). Compare Napier v. Atlantic Coast L i n e R . R . , 272 U.S. 605 (1926).

214

T H E W I L L OF C O N G R E S S

scope of the action of Congress and, correspondingly, of the extent and effect of its silence. T h o u g h construction be in form merely a determination of the m e a n i n g of the words of a statute, in fact on the outskirts of the clear commands of the statute there are involved many value judgments. T h e r e is manifestly the question whether further state action w o u l d h e l p or hurt the situation, 48 in the light of the Congressional scheme of things, though that scheme has not been made wholly articulate. W h e n it appears that the idea of " t h e silence of Congress" has its place with reference to a particular statute, it need not seem so strange to consider it with reference to the mass of federal legislation. It will readily appear that when Congress has acted, there is more reason for the view that those related subjects just beyond the scope of its action are to be left alone, than there w o u l d be in the absence of this particular regulation. T h e attention of Congress has presumably stretched beyond the immediate subjects of its statute to those connected therewith, and those deserving of regulation have been chosen. Under the circumstances, its silence as to others creates some inference as to their exemption f r o m control. 4 7 " S e e Powell, Current Conflicts between lice Power (1928) 12 MINN. L. REV. 607. 17 Ibid.

the Commerce

Clause

and State Po-

XI

S T A T E A C T S AS B U R D E N S INTERSTATE

ON

COMMERCE

IT HAS been suggested that adequate doctrinal declarations of the limitations on state action affecting interstate commerce might have been worked out, under the familiar division of subjects of interstate commerce, into those demanding national and those admitting of local regulation. T h e idea of a "subject" of interstate commerce has possibilities of great flexibility. A "subject" is often to be determined in the light of the particular regulation. T h u s the "subject" of state action, deemed seriously harmful to interstate commerce, is readily declared to be one demanding national regulation, whereas the subject of a state statute not materially hurtful to commerce is easily seen as one open to state control. Accordingly, the flexibility of "subjects," with the added restraint on state exuberance furnished by the due process clause, might have been developed into a complete system for explaining limitations on state action. T h e r e are obvious reasons why this was not done. T h i s division, in its inception, proclaims a concurrent power in the states to regulate a part of interstate commerce, whereas with few interludes the predominant declaration has been that the power of Congress is exclusive. Again, even after the adoption of the Fourteenth Amendment, the due process limitation was slow in developing. Further, just as in Cooley v. The Board of Wardens, there was a revolt against what was then considered too great generalization; so, in turn, subsequent judges doubtless felt that they were leaving the vague generalization of that case and viewing the matter more realistically when they spoke of the direct and indirect effect and of the burden of state acts. Accordingly, in conjunction with the division of subjects

2l6

S T A T E A C T S AS BURDENS

of the power over commerce, there was developed an additional form, partly supplementary and partly substitutional, for the explanation of checks on state action. In the latter half of the past century, it became customary to speak of state statutes as directly or as indirectly affecting interstate commerce. 1 T h e former connoted validity, the latter was a term of condemnation. A statute which "directly affected" interstate commerce readily gained the name of a "regulation of interstate commerce." T h i s was a pronouncement of its doom. A fusion of ideas, by 1891, may be seen in a statement from

In re Rahrer: T h e laws of Iowa under consideration in Bowman v. Railway Co., 125 U.S. 465, and Leisy v. Hardin, 135 U.S. 100, were enacted in the exercise of the police power of the state, and not at all as regulations of commerce with foreign nations and among the several states; but as they inhibited the receipt of an imported commodity, or its disposition before it had ceased to become an article of trade between one state and another, or another country and this, they amounted in effect to a regulation of such commerce. Hence it was held that inasmuch as interstate commerce consisting in the transportation, purchase, sale, and exchange of commodities, is national in its character, and must be governed by a uniform system, so long as Congress did not pass any law to regulate it specifically . . . Congress thereby indicated its will that such commerce should be free and untrammeled; and therefore the laws of Iowa referred to were inoperative. 2 Here there is recognition of Marshall's conception of the purpose of a statute as a controlling factor in the determination of whether it is a regulation of interstate commerce, but with the variation, u n k n o w n to Marshall, of ascertaining that it was a regulation from the subject with which it dealt and its effect on that subject. Coupled with this is a statement of the effect of the will of Congress, as exhibited by its silence. A few samples may serve to show the fashions in judicial speech following this case. By 1890 state statutes had already been condemned by referring to them as "burdens," 3 or as 1 Railroad Co. v. Fuller, 17 Wall. 560, 568 (1873); Sherlock v. Ailing, 93 U.S. 99, 102, 103, 104 (1876); Railroad Co. v. Husen, 95 U.S. 465, 471 (1877); Morgan v. Louisiana, 118 U.S. 455, 463, 464, 465 (1886). 2 1 4 0 U.S. 545, 559 (1891). 3 Sherlock v. Ailing, 93 U.S. 99, 102 (1876).

S T A T E ACTS AS BURDENS

217

"direct burdens," 4 on interstate commerce, or as "operating directly" on interstate commerce,® or as regulations 6 of such commerce. These expressions, naturally, had their opposites in "indirect burdens," "indirectly affecting," or "incidentally affecting," and "no regulation," which would connote the validity of state laws. Thereafter these expressions, or slight variants, constantly recur. In 1896 the Court referred to the state's "police power" being "none the less efficiently called into play because by doing so interstate commerce may be remotely and indirectly affected." 7 Four years later, in dealing with the validity of a Georgia license tax on emigrant agents, the Court declared: " T h e real question is, Does this law amount to a regulation of commerce among the states?" 8 Sustaining the tax, the Court found that the occupation in question was not interstate commerce, and that the tax was accordingly not "a burden on such commerce." 9 Thus was given the answer to the "real question." A comprehensive scrapbook might be made of such quotations. It will be of more use to compare their applications. It is obvious that they are statements of results which are often used interchangeably, and that the statements give but slight indication, if any, of the means whereby the results are reached. Efforts of certain states to keep at home particular products, or to give residents preferential treatment with reference to them, have led to a number of adjudications. Presenting, as they do, marked similarities, these will furnish useful examples for the comparison of competing values and of doctrinal descriptions of the results reached. In Geer v. Connecticut,10 a state statute was sustained, which made it an offense to have in possession, for the purpose of transportation beyond the state, game birds killed within the state, though the birds were lawfully killed. This amounted to ' " B u t we think it may safely be said that state legislation which seeks to impose a direct burden on interstate commerce, or to interfere directly with its freedom docs encroach upon the exclusive power of Congress." Hall v. D e Cuir, 6 95 U.S. 485, 488 (1878). Shcrlock v. Ailing, 93 U.S. 99, 102 (1876). •Ibid. 103. ' G e e r v. Connecticut, 161 U.S. 5 1 9 , 534 (1896). ' W i l l i a m s v. Fears, 179 U.S. 270, 276 (1900).

'¡bid. «78.

10

161 U.S. 519 (1896).

2 18

S T A T E A C T S AS B U R D E N S

a p r o h i b i t i o n of certain interstate commerce, yet the C o u r t could say that interstate commerce was only "indirectly affected." Later, a N e w Jersey prohibition of the exportation of fresh water by pipes or canals was upheld. 1 1 O n e , representing the rights of a riparian owner, had entered into a contract to supply to the city of N e w Y o r k a m i n i m u m of three million gallons a day. T h e case necessarily involved the right or lack of right in this riparian owner as against the state, as well as against lower riparian owners. Before the right to transport can present a serious question, there must be a right of the transporter in the t h i n g transported. It seems sufficient to say of this case that right was lacking in the plaintiff. 1 2 A different situation appeared in the unsuccessful effort of O k l a h o m a , by rather elaborate means, to keep for domestic users natural gas produced in the state. T h e r e was here n o defect in ownership. 1 3 T h e C o u r t compressed its conclusion against the statute into familiar language, saying, " N o state can by action or inaction prevent, unreasonably burden, discriminate against, or directly regulate interstate commerce or the right to carry it o n . " 14 Florida, jealous of its reputation in the markets of the nation, was successful in prohibiting the delivery of unripe citrus fruits for shipment in interstate commerce. 1 "' T h e C o u r t spoke of the statute as "indirectly affecting" interstate commerce. 1 6 It is obvious that in any accurate use of speech, a statute proh i b i t i n g certain interstate commerce directly affects it, unless it be insisted that unripe citrus fruits, like putrid meats, 17 are not to be considered subjects of interstate commerce. In that case, the statute w o u l d not affect interstate commerce at all. T h e state of West V i r g i n i a , with a generosity doubtless inspired by the fate of Oklahoma's efforts to retain its natural 11 H u d s o n C o u n t y W a t e r C o . v. M c C a r t e r , 209 U.S. 319 (1908). " " T h e p r i v a t e r i g h t to a p p r o p r i a t e is s u b j e c t not o n l y to t h e r i g h t s of l o w e r o w n e r s , b u t t o t h e i n i t i a l l i m i t a t i o n t h a t it m a y not s u b s t a n t i a l l y d i m i n i s h o n e of t h e g r e a t f o u n d a t i o n s of p u b l i c w e l f a r e a n d h e a l t h . " Ibid. 356. " W e s t v. K a n s a s N a t u r a l C a s C o . , 221 U.S. 22g (1911). u S l i g h v. Kirk w o o d . 237 U.S. 52 "Ibid. 262. 11915). "Ibid. 61. " S e e L i c e n s e Cases, 5 H o w . 504, 600 (1847).

S T A T E A C T S AS BURDENS

219

gas, was willing that the gas be sent out of the state, but required that home users be first served. T h i s qualified restraint on interstate commerce was found to be a "regulation" 18 of such commerce, and accordingly bad. It is significant that pipe lines had been laid and much equipment installed in both O h i o and Pennsylvania, in reliance on West Virginia gas. Large sums of money had been expended and five million people in these two states were beneficiaries of the gas. 19 A very important course of interstate commerce had thus been developed, which would suffer serious interference from the West Virginia Act. A Louisiana effort to develop the shrimp packing and fertilizer industry 2 0 at home involved a combination of elements which had appeared in the preceding cases. T h e statute forbade the exportation of unshelled shrimp from the state. After the shrimp had been packed they could be freely exported. Vigorous insistence was made upon the state's proprietary right in the wild life in the state, and upon the proposition that the state could do what it would with its own. If Connecticut could prohibit the exportation of its game, Louisiana could similarly prohibit the exportation of shrimp, wholly, or under such conditions as it might name. 21 O n the other hand, plants had been established in other states, and a course of commerce developed which would be wrecked by Louisiana's action. T h e Court held the statute invalid, 22 conceiving that under the facts, as set forth, its effect would be "directly to obstruct and burden interstate commerce." 23 These cases, covering a period of more than thirty years, Pennsylvania v. West Virginia, 262 U.S. 553, 597 (1923). "Ibid. 590. " L a w s of 1926, p. 152. * For an interesting discussion of this case with reference to the nature of the state's right in game, see note (1929) 14 CORN. L . Q . 245. T h e state's control over game is distinguished from ownership. A n d see the statement of Justice Holmes, with reference to wild birds, in Missouri v. Holland, 232 U.S. 416, 434 (1920): " T o p u t the claim of the state upon title is to lean upon a slender reed. Wild birds are not in the possession of any one; and possession is the beginning of ownership." 22 Foster-Fountain Packing Co. v. Haydel, 278 U.S. 1 (192K). Cf. Bayside Fish Flour Co. v. Gentry, 297 U.S. 422 (1936). 50 Foster-Fountain Packing C o . v. Haydel, 278 U.S. 1, 13 (1928). 18

220

S T A T E A C T S AS BURDENS

show a consistent deference to the familiar forms of expression. T h e forms in no case offer any suggestions as to the basis of decision. Statutes which eliminated interstate commerce in certain articles were said to affect it indirectly, and were sustained. Statutes which checked or deflected its course, but allowed it to continue, were said to be burdens, and were held invalid. Yet, if one is not blinded by the deference to ritual, an obvious consistency will appear. Connecticut could keep at home its game birds, and Florida its green lemons. Oklahoma and West Virginia could not monopolize their natural gas. Nor could Louisiana use its shrimp to build up the Louisiana canning industry, at the expense of the industry already developed in Mississippi. N o mystic symbols of "directness" of "burdens" or of "regulations" are needed to exhibit the "stream of tendency." There is an apparent balance of the value to the home state against the value to other states. In the value to other states is necessarily involved the effect of an established current of trade, with its property investment and its influence on the lives of many people. 24 T h e effect on several states by reason of the inability of their inhabitants to get game birds from Connecticut or immature citrus fruits from Florida would be trivial. But the curtailment of a gas supply, or the crippling or elimination of established industry, would carry most serious consequences. T h e distinction is not happily expressed in oft-repeated terms, but it is none the less real. However high a tariff wall may be built without the United States, within there is to be freedom of trade and commerce, without boundaries imposed by state lines. In economic matters no state can retire unto itself, nor give to its residents exclusive or even preferential treatment as to those things of substantial importance to all. A correlation between the terminology of burdens or of direct effect and that of subjects demanding national regulation is apparent in judicial expressions. T h i s is perhaps nowhere " S e e Pound, Mechanical Jurisprudence (1908) 8 COL. L. REV. 616; note (1933) 33 Y A L E L . J . 185.

STATE ACTS AS BURDENS

221

more clearly stated than in the opinion of Chief Justice (then Justice) Hughes in the Minnesota Rate Cases.26 Speaking for the Court he said: If a state enactment imposes a direct burden upon interstate commerce, it must fall regardless of Federal legislation. The point of such an objection is not that Congress has acted, but that the state has directly restrained that which, in the absence of Federal regulation, should be free.28 It thus appears that a state statute, dealing with subjects of interstate commerce which demand national regulation, is per se a burden on interstate commerce or, otherwise expressed, directly affects that commerce. Similarly, state statutes dealing with those subjects which admit of local regulation affect interstate commerce indirectly.27 Here then is a bridge from one to the other of the doctrinal expressions, though one form emphasizes more clearly the place of the Congressional plan for interstate commerce than does the other. These two forms appear intermingled in later opinions, as methods of expressing judgment on the values involved. Such values were placed in bold relief in Seaboard Air Line Railway Co. v. Blackwell,28 wherein the Georgia Act requiring trains to slow down practically to a full stop at grade crossings was held invalid. In many instances the crossings were on side roads of small importance. The enforcement of the Act would often have more than doubled the running time of trains passing through the state. T h e gain to local safety was deemed insufficient to compensate for the loss to interstate commerce. T h e majority opinion declared that "the statute is a direct burden upon interstate commerce." 29 The minority thought that the regulation was "within the class which the state is entitled to enact in the absence of congressional action," 30 and hence it was not "void as a regulation of interstate com» 2 3 0 U.S. 352 (1913). "Ibid. 396, 397. " S e e , for example, Sligh v. Kirkwood, 237 U.S. 52, 61-63 ( ' 9 ' 5 ) - Therein the Court spoke of the statute in question as being one by which interstate commerce was "indirectly affected" and, at the same time, of the subject as being one which the state could regulate in the absence of Congressional legislation. » 2 4 4 U.S. 3 1 0 (1917). "Ibid. 316. "Ibid.

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S T A T E A C T S AS BURDENS

m e r c e . " 3 1 Here in juxtaposition are burdens on interstate commerce and subjects admitting of local regulation. It is ever apparent that, in the recurring process of balancing conflicting interests, more or less rigid categories develop which may become so formal that they obscure the very ideas to which they initially owed their existence. In this connection an excellent illustration, notable because of the dissenting opinions, is Di Santo v. Pennsylvania.32 A Pennsylvania statute required a license of any person or corporation, other than a railway or steamship company, before engaging in the business of selling steamship tickets. T h e requirements for a license were fairly designed to protect from fraud persons buying such tickets. A n annual fee of fifty dollars was exacted. O n behalf of the statute it was urged that agents of steamship companies, or persons representing themselves as such, did a substantial business in the sale of steamship tickets to ignorant people, and that this business possessed great possibilities for dishonest dealing. M u c h of the business was done with immigrants seeking to bring their families to this country, and such persons were easily made the dupes of plausible crooks. T h é statute would obviously be effective in remedying a real evil, and the pecuniary cost was small. Against the statute it was argued that the business of selling steamship tickets is a part of foreign commerce, national in its character. Accordingly the states could not deal with it. Otherwise stated, the statute was a burden on foreign commerce. T h e Court accepted this latter view, again adopting the language of burdens. 33 T h e r e is nothing to indicate why the statute was considered a burden, except the purely formal argument that it dealt with a subject which had been classified, in prior adjudications, as foreign commerce, 34 and as beyond state power. T h e manifest usefulness of the regulation, and the obvious fact that the matter involved was a localized evil which could be better handled by state than by national action, could not save the situation. 32 273 U.S. 34 (1927). See note (1927) 27 Col. L. Rev. 573. Ibid. Di Santo v. Pennsylvania, 273 U.S. 33, 37 (1927). 34 Texas Transport and Terminal Co. v. New Orleans, 264 U.S. 150 (1924); McCall v. California, 136 U.S. 104 (i8go). 31

33

S T A T E A C T S AS B U R D E N S

223

A striking protest was made by Justice Stone in dissenting. H e declared that state statutes are to be sustained "not because the effect on commerce is nominally indirect, but because a consideration of all the facts and circumstances such as the nature of the regulation, its function, the character of the business involved, and the actual effect on the flow of commerce leads to the conclusion that the regulation concerns interests peculiarly local and does not infringe the national interest in maintaining the freedom of commerce across state lines." 35 T h e terminology of burdens lives on in the cases 36 despite complaints as to its artificial character. Recent qualifications, such as " u n d u e , " 37 "unnecessary," 38 "unreasonable," 39 "unl a w f u l , " 40 or "unconstitutional," 41 reflect discontent. In tacit recognition of the use of the expression, a " b u r d e n on interstate commerce," as a matter of law, reference appears to state action as "in fact" a burden on such commerce. 4 2 A n adequate presentation of what constitutes a burden on interstate commerce in the technical sense would be simply a restatement of the law dealing with limitations on state action, so far as they are derived from the power of Congress over "Di

S a n t o v. P e n n s y l v a n i a , 273 U.S. 34, 44

a n d H a l e , Mr.

Justice

Stone

and

the

Constitution

(1927)- See D o w l i n g ,

Cheatham

(1936) 36 COL. L . REV. 351,

357" I n M i n t z v. B a l d w i n , 289 U . S. 346 (1933), Justice B u t l e r said at pages 349, 350: " U n d o u b t e d l y it [the state s t a t u t e i n v o l v e d ] was p r o m u l g a t e d in good f a i t h a n d is a p p r o p r i a t e . . . to s a f e g u a r d t h e p u b l i c h e a l t h . It c a n n o t be m a i n t a i n e d , t h e r e f o r e , that the o r d e r so unnecessarily b u r d e n s interstate t r a n s p o r t a t i o n as to c o n t r a v e n e the c o m m e r c e c l a u s e . " See B i n g a m a n v. G o l d e n F.agle W e s t e r n Lines, 5 6 S u p . C t . 624 (1936). In this case a state excise tax o n the use of gasol i n e by interstate buses w a s a " d i r e c t b u r d e n . " H a d t h e statute, t h o u g h l e v y i n g t h e same tax, specified t h a t t h e s u m w a s for the use of the roads, the tax w o u l d n o t h a v e b e e n a " d i r e c t b u r d e n . " See C l y d e M a l l o r y L i n e s v. A l a b a m a , 56 S u p . C t . 194 (1935). T h u s the d e c l a r e d p u r p o s e , a n d n o t t h e a m o u n t , d e t e r m i n e d w h e t h e r or n o t the t a x w a s a b u r d e n . " H i c k l i n v. C o n e y , 290 L'.S. 169, 173 (1933). " M i n t z v. B a l d w i n , supra n o t e 36. "•International

Milling

C o . v. C o l u m b i a

Transportation

Co., 292 U.S.

511,

5 ' 5 ('934)" A e r o M a v f l o w e r T r a n s i t C o . v. G e o r g i a P u b l i c Service C o m m i s s i o n , 295 U.S. 285. 289 (1935). 41 A t l a n t i c L u m b e r C o . v. C o m m i s s i o n e r of C o r p o r a t i o n s a n d T a x a t i o n of Massachusetts, 80 L . E d . 908 (1936). " Pacific T e l e p h o n e a n d T e l e g r a p h C o . v. T a x C o m m i s s i o n of W a s h i n g t o n , 56 S u p . C t . 522, 528 (1936).

224

STATE ACTS AS BURDENS

commerce among the several states. T o have any substantial practical value, it would require an arrangement of the results of the cases, according to specific types of fact situations. W i t h o u t apparently addressing itself directly to the task, the Court has given a summary of ideas involved. T h u s in sustaining state statutes, it declared: It is enough to say that the statutes now assailed are not aimed at interstate commerce, do not impose a direct burden upon such commerce, make no discrimination against it, are fairly within the range of the police power of the state, bear a reasonable relation to the purpose of the enactments, and do not conflict with any congressional legislation. Under these circumstances they are not invalid because they may incidentally affect interstate commerce.43 T h i s was obviously not planned as a careful analysis, but it seems to have been designed to include all elements relevant to a determination of the validity of a state statute attacked under the commerce clause. Accordingly, in termination of this topic, this summary may be taken as a text, and by way of restatement a brief comment may be made on the various items contained therein. From the quotation, it appears that state action must meet certain requirements both positive and negative, if it is to gain the term of approbation that it only incidentally affects interstate commerce. Positively it must be "fairly within the range of the police power of the state," and it must "bear a reasonable relation to ,the purpose of the enactments." Negatively it must not conflict with Congressional legislation, it must not be aimed at interstate commerce, it must not discriminate against interstate commerce, and it must not impose a direct burden on such commerce. T h e last statement, in its technical sense, obviously includes the others, though it is presented here as a separate requirement. T h e considerations which the Court stated positively are, of course, familiar as demands of due process, on the side of substantive law.44 T h e coincidence of due process and com" Hygrade Provisions Co., Inc. v. Sherman, 266 U.S. 497, 503 "See

POWELL, T H E

SUPREME

C O U R T AND S T A T E

Ribble, The Due Process Clause as a Limitation Zoning Legislation (1930) 16 VA. L. REV. 689.

POLICE

POWER

on Municipal

(1925). (1932)

Discrttion

passim;

in

S T A T E ACTS AS BURDENS

225

merce limitations on state action has been apparent throughout this discussion. 45 It has been seen that the coincidence cannot be dismissed merely with the statement that both the commerce and the due process clauses impose requirements of reasonableness. A l l law has or should have that in common. Fundamentally, the commerce clause involves adjustments between state and federal power. T h e individual as the beneficiary, or victim, as the case may be, can insist upon an appropriate adjustment. T h e due process clause of the Fourteenth Amendment involves adjustments between the public, viewed as the state or a subdivision thereof, and an individual or individuals. If the state action is arbitrary and if the conduct with which it deals is customarily considered interstate commerce, the action is readily viewed as overstepping both limitations of due process and of commerce. If the state's action is with reference to a matter deemed to be beyond its sphere of control, the extrastate features and the possibilities of commerce implications are apparent. Those implications are not necessarily present. 46 But even where the conflict is between state and state, the failure of one state to establish complete control and the embarrassment ensuing or likely to ensue from a divergence of regulation may furnish the substantial basis for the invocation of the federal commerce power. 47 "Supra 170 ff. *"Sce, for example, Flick v. Pennsyhania, a68 U.S. 473 (1925); First National Bank of Boston v. Maine, 284 U.S. 312 (1932). " F o r examples of the invocation of the commerce power of Congress in the effort to avoid " m u l t i p l e control of a single res," see Hall v. De Cuir, 95 U.S. 485 (1878) Wabash, St. L. and P. R y . v. Illinois, 118 U.S. 557 (1886); South Covington and C. Street R y . v. Covington, 235 U.S. 537 (1915). Of course the mere possibility of diversified control, not presently embarrassing, will not of itself defeat state laws. Atlantic Coast Line R . R . v. Georgia, 234 U.S. 280 (1914); New York, N. H. and H. R . R . v. New York, 165 U.S. 628 (1897); Smith v. Alabama, 124 U.S. 465 (1886). Useful illustrations of the principles stated in the text will be found in cases involving state taxation of equipment moving in interstate commerce. A state may tax rolling stock moving from state to state, so long as it uses a fair means of apportionment so that it does not reach more than its proper share. T a x a tion of more than the fair share would be a denial of due process, and it would also be a " b u r d e n " on interstate commerce. See Union Refrigerator Transit Co. v. Kentucky, 199 U.S. 194 (1905); Johnson Oil Refining Co. v. Oklahoma, 290 U.S. 158 (1933). See also Powell, Contemporary Commerce Clause Controversies over State Taxation (1928) 76 U. OF PA. L. REV. 773, 958.

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S T A T E A C T S AS BURDENS

O n e further suggestion may be made with reference to the concurrence of commerce and due process limitations. W h e n state laws are attacked under the due process clause on the ground that they are arbitrary or oppressive, there is a strong presumption in their favor. A f t e r all, a state should be allowed a substantial chance to work out its salvation, so long as only that state and its people are concerned. But there is little, if any, presumption in favor of a state statute attacked under the commerce clause. T h e matter is then not one to be determined in the light of the wisdom of a particular state. 48 Other interests are involved. In the list of negative requirements, the obvious prohibition against conflict with Congressional legislation appears. T h e supremacy of Congress in the exercise of its allotted powers is unquestioned. 4 9 T h a t the use of those powers may curtail the opportunities for state action has been made clear. 50 Further, by a paradox, more apparent than real, Congress may so act as to enlarge the field of state power. 5 1 Less obvious may be the place of the purpose of state legislation, as referred to in the Court's summary. T h a t the purposes inducing the passage of a statute have a place in the determination of its validity has been denied. 5 2 A difficulty arises from the fact that the word "purpose" is given both subjective and objective connotations. T h e purposes of various members of the legislative body in enacting a statute, as expressed in their debates, committee reports, and elsewhere, are useful in construing the statutes they enact. A p a r t from this relation to construction, these divergent motives or ideas have no connection with validity. In considering the constitutionality of a statute, the Court may look to the effect fairly contemplated, 48 Cf. Nebbia v. New York, 291 U.S. 502 (1934) with Baldwin v. Seelig, 294 U.S. 511 (1935). " T e x a s v. United States, 292 U.S. 522 (1934); Houston, East and West Texas R y . v. United States, 234 U.S. 342 (1914): Fanning v. Gregoire, 16 How. 524

(185s). Gilvary v. Cuyahoga Valley Ry., 292 U.S. 57 (1934). 51 See supra 206 ff. "Into the motives which induced the members of Congress to enact the Boulder Canyon Project Act, this Court may not enquire." Brandéis, J., in Arizona v. California, 283 U.S. 423, 455 (1931). m

S T A T E A C T S AS BURDENS

227

and this is often expressed in terms of purpose. T h u s the Court has said: " A result, intelligently foreseen and offering the most obvious motive for an act that will bring it about, fairly may be taken to be a purpose of the act." 63 Again the Court has declared that it will look to the operation and effect of a statute to determine its purpose. 54 T o the extent that the purpose of a legislative body is taken as designating results which may fairly be contemplated, it becomes apparent that purpose is properly considered in connection with constitutional limitations. 55 T h u s defined, it can seldom be ignored. 56 State quarantine laws furnish excellent illustrations. 57 Such laws involve state prohibitions of interstate commerce, yet they may be saved by their good purposes. T h e benefit to the health, safety, or morals of the people of the state, fairly anticipated from the operation of the law, may justify a considerable amount of interference with interstate commerce. Manifestly this idea is fundamental and may find its expression in various ways. For Marshall it was a means of ascertaining whether or not the states were exercising their proper powers. 58 In the License Cases,59 it answered the question whether a state law is or is not a regulation of interstate commerce. T h a t idea still obtains. •"Holmes, J., in Miller v. Milwaukee, 272 U.S. 713, 715 (1927). 84 Morgan v. Louisiana, 118 U.S. 455, 462 (1886). A state tax on interstate commerce is valid where the tax amounts to a fair charge for the use of the state's facilities. Clyde Mallory Lines v. Alabama, 296 U.S. 261 (1936). But a tax on the use of gasoline was invalid as to interstate buses using the state roads, the tax not being expressly levied for road upkeep. Bingaman v. Golden Eagle Western Lines, 297 U.S. 626 (1936). " S e e Grosjean v. American Press Co., 297 U.S. 233 (1936); notes (1936) 4 9 H A R V . L . R E V . 998;

(1934) 47 HARV. L . REV.

1229;

( 1 9 3 3 ) 32 MICH. L . R E V .

840, 248; (1932) 27 I I I . L. REV. 70. Compare A . Magnano Co. v. Hamilton, 292 U.S. 40 (1934); Fox v. Standard Oil Co., 294 U.S. 87 (1935). "See the opinion of Justice Brewer in South Carolina v. United States, 199 U.S. 437, 448 (1905): " W e have in this republic a dual system of government,— national and state,—each operating within the same territory and upon the same persons, and yet working without collision, because their functions are different." m Mintz v. Baldwin, 289 U.S. 346 (1933); Asbell v. Kansas, 209 U.S. 251 (1908); C o m p a g n i e Française v. State Board of Health, 186 U.S. 380 (1902); Smith v. St. Louis and Southwestern Ry., 181 U.S. 248 (1901). " G i b b o n s v. Ogden, 9 W h e a t . 1 (1824). m 5 How. 504 (1847). See supra 66 ff.

228

S T A T E ACTS AS BURDENS

A benefit to the business or economic life of the state, at the expense of other states, does not supply an acceptable purpose. T h e summary, given above, declared that state rules must make no discrimination against interstate commerce, and this is hornbook law. 60 Manifestly, however, there are many permissible discriminations. Every successful quarantine presents an example. "Discrimination" as used in the familiar rule refers to economic advantage given to local enterprise. Desirable results expected to be achieved by state action may save it, although it entails some local business advantage. Thus a quarantine on cattle, fairly based on the prevention of disease, is not vitiated by the inevitable gain to local producers. 01 But without the desirable result of checking disease, the statute would surely fail. 62 Finally, in the list of requirements negatively stated, must be mentioned the provision that the state statute must not impose a direct burden on interstate commerce. This is a sort of omnibus clause. In the sense in which this expression is customarily used, it is not an element determining the result, but a statement of the result itself. It may convey a sense of the balance between local and extrastate interests which is the fundamental basis of all commerce determinations. 63 In some instances the balance will be clear; in others it may be partly or completely obscured by the application of more or less rigid conceptions which have been developed. Thus a state statute dealing immediately with an activity conventionally called interstate commerce, has somewhat less 00 Bethlehem Motors Corp. v. Flvnt, 256 U.S. 421 (1921); Darnell and Son Co. v. Memphis, 208 U.S. 1 1 3 (1908); General American T a n k Car Corp. v. Day, 270 U.S. 367 (1926); Armour Co. v. Virginia, 246 U.S. i (1918). " S m i t h v. St. Louis and Southwestern Ry., 181 U.S. 248 (1901). And see Plumley v. Massachusetts, 155 l;.S. 461 (1894). " M i n n e s o t a v. Barber, 136 U.S. 3 1 3 (1890). 03 For example, see cases dealing with state orders requiring the stopping of interstate trains at various towns. Clearly presented is the local convenience, as against the inconvenience to interstate travel. St. Louis and San Francisco R y . v. Public Service Commission of Missouri, 254 U.S. 535 (1921); Mississippi River Commission v. Illinois Central R . R . , 203 U.S. 335 (1906); Cleveland C. C. and St. Louis R y . v. Illinois, 177 U.S. 514 (1900); Lake Shore and M. S. R y . v. Ohio, 173 U.S. 285 (1899).

S T A T E A C T S AS

229

BURDENS

c h a n c e of b e i n g sustained than one r e g u l a t i n g an activity w h i c h has n o t acquired that characterization. 6 4

In the f o r m e r case,

t h e term "direct," or o n e of its substitutes, is m o r e readily applied.® 5 In the latter case it is easier to speak of the effect on interstate c o m m e r c e as " i n d i r e c t , " t h o u g h it m a y b e seriously d e t r i m e n t a l . T h e characterization has, of course, somewhere in its ancestry the w e i g h i n g of c o m p e t i n g claims of local a n d nonlocal demands, t h o u g h the process m a y b e so r e m o t e that the effect is scarcely discernible in the case at h a n d . T h u s w i l l b e a n u m b e r of instances, n o t a b l y taxation, wherein appearing

from

state statutes are h e l d

the

opinions

to

be

in the case of invalid

largely,

if

there state

for reasons not

wholly,

formal. 6 8 T h e r e w i l l b e other instances w h e r e i n the f o r m u l a tions obviously reflect the values w h i c h p r o m p t e d them. 6 7 T h e resistance of established f o r m u l a t i o n s t o the i m p a c t of n e w v a l u e determinations is of course a familiar p h e n o m e n o n in the law. " F o r example, compare Di Santo v. Pennsylvania, 273 U.S. 34 (1927) with Williams v. Fears, 179 U.S. 270 (1900). In the former case, the state requirement of a license, involving the payment of a tax, from persons selling steamship tickets to foreign ports, was held invalid. This activity was conventionally classed as foreign commerce. In the latter case, a much heavier license tax on those engaged in hiring persons to labor outside the state was sustained. The activity here was considered not to be interstate commerce. "See, for example, Wabash, etc., Ry. v. Illinois, 118 U.S. 557 (1886), state statute determining rates for transportation into another state, invalid: Western Union Telegraph Co. v. Boegli, 251 U.S. 515 (1920), state penalties for failure to deliver interstate message promptly, invalid; Buck v. Kuykendall. 267 U.S. 307 C1925). and Bush and Sons v. Maloy, 267 U.S. 317 (192^, state statutes requiring certificates of convenience for operating interstate bus line within the state; Mavor of Vidalia v. McXeelv, 274 U.S. 676 fiQZ7). citv requirement of a license for running an interstate ferry, invalid; Cudahy Packing Co. v. Hinkle, 278 U.S. 160 (1929V state requirement of filing fee from a foreign corporation engaged in interstate commerce, invalid, though the fee was small. In the last-named case the Court approved the idea that "a tax which really burdens interstate commerce" is bad, even though the tax is small. This was not necessarily decided. Ibid. 467. " T h u s certain general rules can be stated. A state tax on property moving in interstate commerce is invalid. Champlain Realty Co. v. Brattleboro, 260 U.S. 366 A922): Coe v. F.rrol, 116 U.S. 517 (1886). Cf. Minnesota v. Blasius, 290 U.S. 1 (1933). A state tax on the privilege of engaging in interstate commerce is invalid. Alpha Portland Cement Co. v. Massachusetts. 268 U.S. 203 (1925). See Pacific Telephone and Telegraph Co. v. Tax Commission of Washington,

297

U . S . 403

^1936): n o t e

C1924)

18 MINN. L .

RF.V. 890. F o r

an

example of simon-pure formalism, see Di Santo v. Pennsylvania, 273 U.S. 34 (1927)" S e e supra note 63.

XII CONCLUSION

THE foregoing pages have presented in brief outline the developing relationship between state and federal authority, as affected by the power of Congress over commerce among the several states. T o give a résumé of what has been said would be in large measure but to summarize a summary. So futile an act will not be performed. Viewing the subject broadly, from the vantage point of the present, a few general comments may be made. It has been seen that the history of judicial interpretation of the commerce clause reveals many significant ideas with reference to the division between state and federal power. Chief among these are the following: (1) the changing doctrines used in determining the division between and the coordination of federal and state power, with reference to commerce; (2) the use of conceptions of the appropriate sphere for the states, as a means of marking the limitation on federal power; (3) the confusion in terminology resulting in large part from the acceptance of conflicting doctrines, without the recognition of their conflict; (4) the development of a concept of what constitutes interstate commerce in determining the scope of state and federal power; and (5) the increasing importance in commerce determinations of legislative and administrative action. In lieu of a more pretentious summary, brief reference may be made in turn to each of these ideas. Notwithstanding statements as to the "exclusive" power of Congress, it has ever been clear that the states are not completely excluded from dealing with interstate commerce. In determining the extent of the exclusion of the states, there have been manifest shifts in the doctrines declared by the Court. These shifts are the more interesting because of the lack of adequate recognition in judicial opinions.

CONCLUSION

231

A t the beginning of this study, attention was directed to the philosophy of law widely accepted in the formative period of American constitutional law. Subsequently consideration was had of changes in that philosophy. T h e shift, which has been observed in the Court's attitude toward state power over interstate commerce, from full reliance upon itself to an increased deference to the will of Congress, parallels a shift from the fundamental notion of a law derived by deduction from immutable principles to that of a law based upon wise practical adjustments of conflicting interests. As long as acceptable theory contemplated law as "but an absolute development of absolute principles," 1 and viewed those principles as discoverable and to be developed by the process of reason, the Court felt little need of the wisdom of Congress. It was the province of the Court to discover appropriate principles and to deduce from them rules to fit the particular case. T h u s Marshall could in terms, look to the "nature of the power" over commerce and from that announce his deductions of controlling principles. T h e departure came gradually. Taney and his associates felt that the earlier judges had been a bit too ethereal. T h e Court must "look at the facts." Accordingly, the Court under Taney exalted the "nature of the subjects" of the power. At first it was the province of the Court to examine the subjects of the power and to ascertain what their nature demanded. T h e opinion of Congress had value for the assistance of the Court, but it imposed no restraint. An interesting and natural development occurred. As the Court departed from a view of its task as an elaboration of immutable first principles, and conceived of it rather as a determination of the demands of the subjects of the commerce power, the will of Congress gradually came into the ascendancy. For with the emphasis on the subjects, there developed concern with wise and appropriate dealing with the needs of those subjects. And when the Court began to look upon its task as requiring a wise balance between competing claims, it became less impressed 1

See

POUND,

CORWIN, T H E

AN

INTRODUCTION

TO

THE

PHILOSOPHY

T W I L I G H T OF THE SUPREME C O U R T

(1934)

OF 54.

LAW

(1922)

92,

93;

232

CONCLUSION

w i t h the finality of its o w n wisdom, particularly in matters r e q u i r i n g extensive practical information and in those clearly i n v o l v i n g the exercise of value j u d g m e n t s properly within the legislative function. 2 T h o u g h the technique employed in the m a k i n g of law by judges differs materially from the technique employed by legislative bodies, manifestly in the vital matter of p l a n n i n g for acceptable results there is much in common. In many respects the legislative body is better e q u i p p e d to do the planning. In addition there is necessarily the feeling that, in a republican f o r m of government, the people have reposed in their elected representatives the task of making a choice of broad policies, where those policies are not determined in the Constitution. T h e s e and similar considerations have led to a readiness on the part of the C o u r t to defer to the will of Congress. T h i s deference to congressional wisdom is a significant aspect of the law of commerce today. 3 T h i s acceptance of the w i l l of Congress is, with reference to federal and state action, w i t h i n the field of the commerce power. T h e C o u r t has not admitted that Congress can enlarge that field by its o w n declarations. T h a t is, Congress cannot by its ipse dixit alone foist the character of interstate commerce, as a basis of constitutional power, on any subject whenever that suits its will. T h e C o u r t is to determine ultimately what may be included w i t h i n the term "interstate commerce." Congress is to determine whether the interstate commerce does or does not permit of state action. T h e two acts are strikingly similar, yet the same is true of many exercises of the judicial and the legislative function. In view of recent decisions, it will seem rash to emphasize See M a g g s , The Constitution and the Recovery Legislation; The Roles of Document, Doctrine and Judges (1934) 1 U. CHI. L . REV. 665, 673; HENDERSON, T H E POSITION OF FOREIGN CORPORAFIONS IN AMERICAN CONSTITUTIONAL LAW (1918) 1 1 7 . 2

3 T h e C o u r t is slow to d i s t u r b t h e legislative c h o i c e of p o l i c y or to i n t e r f e r e w i t h w h a t it c o n c e i v e s to be t h e congressional p l a n f o r c o m m e r c e . H o w e v e r , it does not a l w a y s accept t h e congressional fiat in these latter days. T w e n t y t w o instances of t h e f a i l u r e of congressional r e g u l a t i o n s , a t t e m p t e d u n d e r the c o m m e r c e p o w e r , a r e listed in GAVIT, THE COMMERCE CLAUSE (1932) 539. Since t h e p u b l i c a t i o n of Professor G a v i t ' s b o o k n o t a b l e cases i l l u s t r a t i n g the f a i l u r e of t h e c o m m e r c e clause to satisfy the desires of C o n g r e s s are A . L . A .

CONCLUSION

233

the Court's deference to "the will of Congress," since that will, in notable instances, has been thwarted. T h e failure of vast programs of regulation, involving substantial departures from preceding legislation, should not obscure the fact that this deference, within the area which the Court is willing to recognize as interstate commerce, has greatly increased since the time of Cooley v. The Board of Wardens* T h e Court is acutely conscious today of an obligation to maintain substantial governmental prerogatives of the states. T h e chief stumbling block in the way of recent federal legislation has been in the ancient doctrine of "states' rights," in modern garb. And this has taken the form of marking the limits on "commerce among the several states" and on "regulation" from the viewpoint of federal power.® An illustration of considerations which have led to the endorsement of this principle will be found in connection with the idea of interstate commerce as a humanly directed movement from one state into another. T h e unlimited power to stop movement from state to state would have furnished a means whereby Congress could have controlled, so far as laws can control, all of the details of life within the United States. Furnishing an offset against this possibility is the limitation on federal power, declared to exist by reason of the reserved powers of the states. This limitation has from time to time suffered a partial eclipse. It is quite pronounced in recent adjudications of the Court. Congress is not allowed under the commerce power to encroach too far on what the Court considers is properly reserved to the states. T h e taxing power has met the same limitation. It is an interesting and important inquiry as to how far other powers of Congress, such as the spending power, may be curbed by this restraint. Schechter Poultry Corp. v. United States, 295 U.S. 495 (1935); R a i l r o a d R e tirement B o a r d v. Alton R . Co., 295 U.S. 330 (1935); United States v. Butler, 297 U.S. 1 (1936): Carter v. Carter Coal Co. 298 U.S. 238 (1936). 4 12 H o w . 299 (1852). 6 See A. L . A. Schechter Poultry Corporation v. United States, 295 U.S. 495 (1935): United States v. Butler, 297 U.S. 1 (1936); C a r t e r v. Carter Coal Co., 298 U.S. 238 (1936).

234

CONCLUSION

It has in the past seemed natural to think of the adjustment between state and national governments in terms of eternal conflict. T h i s is far from accurate. Particularly in recent years the idea of cooperation has been apparent. T h e recognition of the power of Congress to determine the limits of state action, within the field of interstate commerce, has opened up broad possibilities of federal and state cooperation. Working together, the two governments may achieve ends ardently desired by both, but difficult or impossible of accomplishment by either acting alone. 6 T h e limits, if any, on the power of Congress to remove from state action the restraint of the commerce clause have not been well explored. Yet it is most apparent that the possibilities along this line are very great. T h e divergence between Marshall and Taney, adverted to above in connection with the nature and the subjects of the power over commerce, is apparent in its consequences throughout the entire course of judicial construction of the commerce clause. It contributed to the striking ineptitude of expressions confidently used. T h e dispute as to whether the power of Congress over interstate commerce is "exclusive" or "concurrent" is in large measure a battle of words, but the words readily breed confusion. T h e dispute has roots in the early opinions of the Court. Marshall, looking to the "nature" of the federal power over commerce, and finding that nature notably in the source of the power and in the purpose of its exercise, furnishes a judicial beginning for the declaration of "exclusiveness." T h o u g h the states might enact some laws scarcely distinguishable in subject matter from laws of Congress, they were not sharing in the power of Congress. T h e power of a state had a different source and it was exercised for different purposes. Hence it was different in its nature. Taney did not deal in such refinements. Looking to the subjects of the power as determinative, he found state and nation dealing with the same subjects. Accordingly he believed in a concurrent power. "See Whitfield v. Ohio, 297 U.S. 431 (1936), decided in connection with the Hawes-Cooper Act, 45 Stat. 10K4. Compare Ashton v. Cameron County Water Improvement District No. One, 80 L. Ed. 910 (1936).

CONCLUSION

235

T h e original sources of these uses have not been borne in mind. It follows that there is hopeless contradiction on the "exclusiveness" of the federal power. There have been, of course, other forces contributing to the confusion of terms. T h e expression a "regulation of interstate commerce" has obviously a factual and a legal connotation. T h e distinction between these uses is not always carefully drawn. Such terms as "direct," "indirect" and "burden" have become technical words declaratory of legal conclusions, though they are at times used apparently without recognition of their technical aspects. A great deal might be done to clarify the language familiarly used in the commerce cases. From the first commerce case, there has been a judicial willingness to furnish a broad and general statement of the elements of interstate commerce, though the Court has lately been careful to declare that no complete definition has been intended. 7 T h e broadest terms were given by Marshall. Since his time there has developed, as a fundamental notion of interstate commerce, the idea of movement from one state into another, which movement is subject, at least in part, to human direction or control. 8 It has become apparent that this is a doctrinal development which may serve to restrict national authority. Notable in some of the later as well as in earlier cases, is the effort to show the presence of some element of movement as being the sine qua non of interstate commerce. 9 Marshall's conception of "that commerce which concerns more states than one" 10 imposed no such burden on the proponents of federal power. ' C a r t e r v. C a r t e r C o a l C o . , 298 U.S. 238, 298 (1936): " N o all e m b r a c i n g d e f i n i t i o n has ever b e e n f o r m u l a t e d . " ' T h i s idea m a y find s u p p o r t in M a r s h a l l ' s a c c e p t a n c e of t h e p r o p o s i t i o n t h a t c o m m e r c e i n c l u d e s n a v i g a t i o n . G i b b o n s v. O g d e n , 9 W h e a t . 1, 190 (1824). It is a f a i r i n f e r e n c e f r o m this t h a t c o m m e r c e w o u l d also i n c l u d e t r a n s p o r t a t i o n by l a n d . T h e restrictive i m p l i c a t i o n s of t h e i d e a h a v e b e e n d e v e l o p e d since M a r shall's time. See supra 130 ff. • S e e Fisher's B l e n d Station v. T a x C o m m i s s i o n of S t a t e of W a s h i n g t o n , 297 U.S. 650 (1936), state t a x a t i o n ; B u r c o Inc. v. W h i t w o r t h , 81 F. (2d) 721 ( C . C . A . 4th, 1936), f e d e r a l r e g u l a t i o n . " G i b b o n s v. O g d e n , 9 W h e a t . 1, 194 (1824).

236

CONCLUSION

W h i l e this is a doctrinal development which may serve to restrain national action, it may also, at times, furnish easy support for that action. A ready instance of the latter is found in the case of criminal laws. T h e mere passage of a criminal from one state to another opens the door by which the federal authority may enter. A most effective check on movement from state to state, as a basis for federal action, has been the maintenance of an appropriate governmental area for the states. T h i s check has not been sufficient to shield the criminal. 1 1 And such shield would obviously offer a curiously ironical application of the principles of states' rights. T h e use of and the fears for this basis of federal authority are apparent in connection with recent federal legislation, wherein this basis is conveniently coupled with or reinforced by the invocation of the federal power over the mails. 12 T h e denial of facilities of the mails and of interstate commerce for the distribution of security issues, as to which there has not been an adequate disclosure of relevant facts, would seem to be safely within the scope of the precedents. 13 Such a denial bears substantial similarity to the Lottery Cases,14 A more difficult problem is presented in connection with the Public Utility Holding Company Act. 1 5 T w o situations may be mentioned. Company A transmits directly, or through subsidiaries, electric current across state lines. Company B owns operating subsidiaries, say, in Virginia, Florida and California, and, of course, sends no current from one state to another. O n the face of this situation, there may u G o o c h v. United States, 297 U.S. 124 (1936). " S e e Securities Act of 1933, 48 Stat. 74, amended 48 Stat. 905 (1934); Securities Exchange Act of 1934, 48 Stat. 881; Symposium on the Securities Acts (1933) YALE L. J . 171; Martin, Constitutionality of the Securities Exchange Act of '934 (1935) 2I A. B. A. J . 811; legis. (1936) 36 COL. L. REV. 974; Jones v. Securities and Exchange Commission, 298 U.S. 1 (1936). " S e e McDermott v. Wisconsin, 228 U.S. 115 (1913), labels under Pure Food and Drug Act, 34 Stat. 768; Lewis Publishing Co. v. Morgan, 229 U.S. 288 (1913); Public Clearing House v. Coyne, 194 U.S. 497 (1904). 14 Ex Parte Rapier, 143 U.S. 110 (1892); Champion v. Ames, 188 U.S. 321

(1903)-

" 4 9 S t a t . 803. See n o t e REV. 957.

(1936) 45 YALE L . J . 468; legis.

(1936) 49 HARV. L.

CONCLUSION

237

be sound justification for A. It is, perhaps, serving an area which may be best served by one organization, though the area is actually traversed by state boundaries. Justification for B will be more difficult. The anomaly is that A is clearly within the federal power of regulation. Whereas, under the doctrine developed, B is far from being convincingly within that power. Thus, in this instance, where the need for control is likely to be greater, the power may be less.16 T h e artificiality of the doctrine becomes plain. It is elementary that the federal power is not limited to that which the Court is willing to call "interstate commerce." Extensive federal control has found support notably from two companion propositions: (1) the federal power extends to all that "intimately" or "directly" affects interstate commerce; and (2) a broad course of trade supplies a "current of commerce" within the meaning of the commerce clause. In determining the limits of the "current of commerce" and in determining whether specific activities directly affect interstate commerce, the Court has been quite liberal. Thus there has been provided substantial elbow room for federal action. Transportation on a continuous journey with an extrastate destination is readily classed as interstate commerce. T h e same result is reached in other activities where the connection with movement is immediate and easily apparent. In the vast welter of situations, becoming by imperceptible degrees more remote from actual motion, on an admittedly continuous interstate journey, it has often been apparent that it is fruitless to inquire which are "really" interstate commerce and which are merely intimately connected with it. The simple cases foster the idea of commerce as a readily ascertainable subject. Yet there are other cases where the connection is very material, " B u r e t ) Inc. v. Whitworth, 81 F. (ad) 721 (C.C.A. 4th, 1936). Of course, in ihe B type of holding company, there is much in the way of information, a n d perhaps there are many tangible articles, passing f r o m the central office to the subsidiaries, and from subsidiary to subsidiary. T h e r e may thus be a "current of commerce" sufficient to sustain the federal power. In the light of the cases, this seems to be a tenuous thread on which to hang a far-reaching federal power over the holding company.

238

CONCLUSION

although not so easily observed. It has been error to refuse to recognize these cases because they do not present the more familiar characteristics. For example, it was erroneous to say that Congress cannot control the transfer of stock of two railroads to a holding company, involving single management of the interstate transportation over a considerable area, because the ownership of stock, in railroads is not interstate commerce. 17 Similarly, it was erroneous to consider that the Sherman Act does not apply to the sale of steers in stockyards, if the reason given is that the business of selling steers is not interstate commerce. 18 T h e problem has not been as to the ownership of stock or the sale of steers considered generally. T h e problem has been whether the activity, upon which the statute operates, is, under the circumstances in question, so intimately connected with the movement of goods and persons between the states that the regulation before the Court is within the federal power. T h e striking growth of commercial enterprise in America, involving the widespread interchange of goods and ideas, has constantly tended to make state lines of less importance for the purposes of commerce and trade. T h e United States is, in substantial measure, growing into one economic whole. T h e economic unity of the country precludes action by one state to gain commercial advancement at too great cost to other states. It gives reason for the insistence upon an absence of trade barriers and a freedom of commercial intercourse among the states. 19 " See Justice White, dissenting in the Northern Securities Co. v. United States, 193 U.S. 197, 369: " I think the ownership of stock in a state corporation cannot be said to be in any sense traffic between the states or intercourse between them." ' " S e e Hopkins v. United States, 171 U.S. 578 (1898). Cf. Swift & Co. v. United States, 196 U.S. 375 (1905); Stafford v. Wallace, 258 U.S. 495 (1922); Minnesota v. Blasius, 290 U.S. 1 (1933). " B a l d w i n v. Seelig, 294 U.S. 5 1 1 (1935). T h i s case must be compared with Whitfield v. Ohio, 297 U.S. 431 (1936). In the former case New York was denied the right to extend to milk coming in from other states its regulation of the price of milk. In the latter case Ohio was allowed the right to prohibit the sale of convict-made goods coming f r o m A l a b a m a . T h e facts in the latter case were within the scope of the Hawes-Cooper Act, 45 Stat. 1084 (1929), though

CONCLUSION

«39

Quite significant in the history of the commerce clause has been the growth in importance of legislative and administrative action. Reference has been made to the place of the former in connection with state control of interstate commerce. Interstate commerce supplies an excellent opportunity for administrative action. T h e governance of commerce calls for a continuity of supervision and a specialized wisdom or technical expertness which neither legislatures nor courts can supply. T h e history of the Interstate Commerce Commission has been marked by the constant extension of power. T h e activities of other commissions have been multiplied. It may be too early to envisage the effect of executive action and of commission direction on constitutional theory, with reference to the commerce clause. 20 Yet it is clear that the existence of a federal board, with authority to act, may have a material effect upon the vital question whether a given power "can be most advantageously exercised by the states themselves." 21 Localized relief can more readily be had from such a board than from appeal to a distant Congress. Had there been a federal pilotage commission in Philadelphia, at the time that Mr. Cooley objected to making a contribution to the Society for the Relief of Decayed Pilots, 22 the course of constitutional theory with reference to the commerce clause might have been vastly different. Much may be said in opposition to the extension of federal bureaus. 23 Reference here is to the fact, rather than to the desirability, of such extensions. the Court made scant use of this. In the absence of reliance on the statute, the two cases furnish an interesting comparison of values, both to the sending and the receiving state. For a discussion see Sholley, The Negative Implications of the Commerce Clause (1936) 3 U. CHI. L. REV. 556. " S e e Pound, The American Constitution in the Light of Today (1934) 68 U.S. L. REV. 304. Cf. Amazon Petroleum Corporation v. Ryan, 293 U.S. 388 (1935); A. L. A. Schechter Poultry Corporation v. United States, 295 U.S. 495 0935)" G i b b o n s v. Ogden, 9 Wheat. 1, 203 (1824). • C o o l e y v. Board of Wardens, 12 How. 299 (1851). " For a comment on the effectiveness of bureaus in ousting state jurisdiction, see the dissent of Mr. Justice McReynolds in Oregon-Washington Railroad and Navigation Co. v. Washington, 270 U.S. 87 (1926). T h e Justice said at page

24°

CONCLUSION

From the assembling of the Constitutional Convention until the latest relevant decision, there has been a struggle over the division of powers between the states and the nation. This survey will illustrate the fact that the Court has rarely declared rigid lines of division capable of ready application to specific situations. Rather, it has in general established working hypotheses, permitting substantial freedom of choice in dealing with the particular types of commerce with which it is confronted, and allowing much latitude in meeting new situations in the light of new wisdom. T h e use of the term "interstate commerce" and of other terms common in the opinions has not precluded the balancing of competing interests. If the question is one of the validity of a federal statute, the balancing has been expressed in the form of a finding that the subject is or is not interstate commerce, that it does or does not directly affect interstate commerce, that the statute does or does not contravene some provision in the Constitution other than the commerce clause, or that the statute is or is not a "regulation." Similarly, if the question concerns the validity of a state statute, balancing has been expressed in the form of a finding (1) that the subject is or is not interstate commerce; (2) if it is found to be interstate commerce, that it does or does not demand uniformity of regulation; and (3) if the subject is found to demand uniformity of regulation, that the statute does or does not "regulate" the subject. Likewise, the terminology of burdens recognizes a balancing process. If the statute is found not to "burden," it will be said "to affect incidentally." 103: " I t is a serious thing to paralyze the efforts of a state to protect her people against impending calamity, and leave them to the slow charity of a far-off and perhaps supine Federal bureau. No such purpose should be attributed to Congress unless indicated beyond a reasonable doubt." T h e Justice was subsequently sustained by Congress. In this case the Court had held that acts of Congress delegating to the Secretary of Agriculture control over plant quarantines (37 Stat. 3 1 5 , 39 Stat. 1165) precluded state action, even though the Secretary had not acted. Here was the silence of the Secretary of Agriculture looking like a young offspring of the silence of Congress. Congress promptly corrected the Court's inferences as to the exclusion of state action (44 Stat. 250).

CONCLUSION

241

As is true in all law, much formalism has developed which has obscured the real values involved and otherwise prevented the consideration of those values. Yet it is clear that the basic aim in accord with which the entire subject has grown and is growing, though at times this is scarcely apparent in the opinions, lies in a wise adjustment between local and extrastate interests. Unless both these interests are involved, there is no commerce problem. T h e task presented entails not only a determination of wise results but also a determination of the appropriate body, state or federal, through which wisdom is most likely to be achieved. In the first case decided, reference was made to powers which "can be most advantageously exercised by the states themselves"; 24 and this idea has prevailed generally, throughout the opinions, as the touchstone of state power. Similarly, those things which can be best handled by the federal government, and certainly those which require unified control, are committed to that authority save in those cases where the Court has felt that the cost to state autonomy is too great. * Supra note s i .

T A B L E OF CASES Acker v. United States 142 Adair v. United States 9, 1 1 8 , 167, 168 Addyston Pipe and Steel Co. v. United States . 145, 168 Adkins v. Children's Hospital 9 Aero Mayflower Transit Co. v. Georgia Public Service Commission 223 Aetna L i f e Insurance Co. v. Dunken 187 Alabama and Vicksburg Ry. v. Jackson and Eastern R y . . 213 Alexander v. State 129 Alicia (The) v. United States 63 Allgeyer v. Louisiana 116 Almy v. California 128 Alpha Portland Cement Co. v. Massachusetts 229 A . Magnano Co. v. Hamilton 227 Amazon Petroleum Corporation v. R y a n 239 American Baseball Club of Chicago v. Chase . 1 2 1 American Express Co. v. Caldwell 162 American Manufacturing Co. v. St. Louis 192 American States Public Service Co., In re 132 American Steel and Wire Co. v. Speed 197 American Tobacco Co. v. United States 145, 146 Anderson v. Pacific Coast Steamship Co 203 Anderson v. United States 139, 145 Anglo-Chilean Nitrate Sales Corp. v. Alabama . . . . 196 Appalachian Coals v. United States 146, 152 Arizona v. California 226 Armour Co. v. Virginia 228 Asbell v. Kansas 227 Ashton v. Cameron County Water Improvement Co. 1 5 1 , 234 Ashwander v. Tennessee Valley Authority 123 Askren v. Continental Oil Co 197 Atchison, T . and S. F. R y . v. United States .170 Atlantic Coast L i n e R . R . v. Georgia 2 1 3 , 225 Atlantic Lumber Co. v. Commissioner of Corporations and Taxation of Massachusetts 223 Austin v. Tennessee 124, 189, 198

244

TABLE OF CASES

Bacon v. Illinois 192 Baldwin v. Seelig 199, 226, 238 Baltimore and Ohio R.R. v. Interstate Commerce Commission 158, 161 Baltimore and Ohio S. W. R.R. v. Burtch 134 Bank of August v. Earle 17 Bar bier v. Connolly 102, 116 Barron v. Mayor of Baltimore 100 Bartemeyer v. Iowa 101, 102, 116 Bayside Fish Flour Co. v. Gentry 219 Bedford Cut Stone Co. v. Journeymen Stone Cutters Association 145 Beer Company v. Massachusetts 101, 116 Bethlehem Motors Corp. v. Flynt 228 Bingaman v. Golden Eagle Western Lines . . . . 223, 227 Blumenstock Bros. v. Curtis Publishing Co. . . 120, 147 Board of Trustees of the University of Illinois v. United States 177, 178 Bothwell v. Buckbee Mears Co 127, 128, 186 Bowman v. Chicago and Northwestern Ry. . 66, 82, 83, 84, 197 Bradley v. Public Utilities Commission 166 Bridge Co. v. United States 65 Brig Wilson v. United States 21, 23 Brimmer v. Rebman 95. 97 Briscoe v. Bank of the Commonwealth of Kentucky 54 Brolan v. United States 173 Brooks v. United States 174, 176 Brown v. Houston 197 Brown v. Maryland 18, 38, 39, 41, 46, 47, 50, 51, 69, 74, 94, 105, 124, 196, 205 Browning v. Waycross 200 Buck v. Kuykendall 28, 166, 189, 229 Buffington v. Day 63 Bunting v. Oregon 9 Burco, Inc. v. Whitworth 132, 235, 237 Burnet v. A. T . Jergins Trust 177 Burnet v. Coronado Oil and Gas Co 177 Bush and Sons v. Maloy 28, 166, 189, 229 Butler Bros. Shoe Co. v. U. S. Rubber Co 128 Calder v. Bull Calvin's Case Caminetti v. United States

10, 101 15 129

T A B L E OF CASES

245

Cardwell v. American Bridge Co 82 Carrol v. Campbell 87 Carson Petroleum Co. v. Vial 192 Carter v. Carter Coal Co 120, 192, 233, 235 Carter v. United States 151 Champion v. Ames 24, 127, 236 Champlain Realty Co. v. Brattleboro . . . . 191, 192, 229 Champlin Refining Co. v. Corporation Commission . . 192, 195 Cherokee Nation v. Georgia 25 Chesapeake and Ohio Ry. v. Bryant 135 Chesapeake and Ohio Ry. v. Martin 213 Chicago and E. I. R.R. v. Industrial Commission of illinois 134, 135, 137, 185 Chicago and N. W. Ry. v. Bolle 135 Chicago, Burlington, and Quincy R . R . v. Iowa . . 103, n o Chicago Junction Ry. v. United States 138 Chicago, Milwaukee and St. Paul Ry. v. Ackly . . . -103 Chicago, Milwaukee and St. Paul Ry. v. Minnesota . 103, 1 1 1 Chicago, Rock Island and Pacific Ry. v. United States 26, 170 Chilvers v. People 87 Chy Lung v. Freeman 80 Clark v. Poor 166 Clark Distilling Co. v. Western Maryland Ry- • • 63, 75, 173, 206, 209, 213 Cleveland C. C. and St. Louis Ry. v. Illinois . . 228, 229 Clyde Mallory Lines v. Alabama 223, 227 Coe v. Errol 191, 193, 194, 229 Cohens v. Virginia 20 Cole v. La Grange 102 Collector v. Day .177 Collins v. New Hampshire 198 Colorado v. United States 153 Commonwealth v. Alger 43 Commonwealth v. Campbell 101 Compagnie Française v. State Board of Health . . . . 227 Conway v. Taylor's Executor 86, 87 Cook v. Marshall County 198 Cook v. Pennsylvania 95, 196 Cooley v. The Board of Wardens 39, 52, 53, 66, 72, 73, 74, 75, 76, 80, 203, 204, 210, 233, 239 Coppage v. Kansas 9 County of Mobile v. Kimball 24, 157 Covington Bridge Co. v. Kentucky 88, 130

246

T A B L E OF CASES

Crandall v. Nevada Crescent Cotton Oil Co. v. Mississippi Crossman v. Lurman Cudahy Packing Co. v. Hinkle

.

71, 72 127, 192 ig7 229

Daniel Ball 63, 120, 157, D'Arcy v. Ketchum Darnell and Son Co. v. Memphis Dartmouth College v. Woodward Dash v. Van Kleeck Davidson v. New Orleans Dayton Goose Creek Ry. v. United States . 158, Debs, In re Delaware, L. and W. R.R. v. United States Detroit International Bridge Company v. Corporation T a x Appeal Board of Michigan 65, Diamond Match Co. v. Ontonagon Dickson v. Uhlmann Grain Co Di Santo v. Pennsylvania 203, 222, 223, Dozier v. Alabama Dred Scott v. Sandford Ducat v. Chicago 89, Duplex Printing Co. v. Deering East Ohio Gas Co. v. T a x Commission of Ohio Elk v. Wilkins Elkison v. Deliesseline Erie R . R . v. Collins Erie R . R . v. Szary Erie R . R . v. Williams Erie R . R . v. Winfield Escanaba Co. v. Chicago Eureka Pipe Line Co. v. Hallanan

158 101 228 100 101 116 163 158 173 130 192 213 229 138 63 186 145

193, 198 25 20 1 34» 1 37 134, 137 9 185 40, 79 193

Fanning v. Gregoire 86, 87, 226 Federal Baseball Club of Baltimore v. National League of Professional Baseball Clubs 121, 146 Federal Compress and Warehouse Co. v. McLean 192 Federal Radio Commission v. Nelson Bros. Bond Mortgage Co. 128 Federal Trade Commission v. American Tobacco Co. .167 Ferris v. Coover 60 First National Bank of Boston v. Maine 225 Fisher's Blend Station v. T a x Commission of State of Washington 128, 132, 235

T A B L E OF CASES

247

Fletcher v. Peck 10, 14, 34, Florida v. United States Foster v. Master and Wardens of Port of New Orleans Foster-Fountain Packing Co. v. Haydel Fox v. Standard Oil Co Frick v. Pennsylvania 103, Frost Trucking Co. v. Railroad Commission of California Fry v. Woodworth

101 164 91 219 227 225 41 177

Garland, Ex parte 63 Gear v. Bullerdick 87 Geer v. Connecticut 217 General American Tank Car Corp. v. Day . . . . 228 General Oil Co. v. Crain 192 General Railway Signal Co. v. Virginia 200 Georgia Public Service Commission v. United States 164 Gerreth v. Taylor 9 Gibbons v. Ogden . 18, 21, 22, 23, 24, 25, 26, 27, 34, 35, 36, 37, 38, 41, 47, 50, 51, 67, 68, 74, 86, 90, 105, 108, 120, 127, 128, 132, 139, 151, 154, 155, 156, 167, 202, 227, 235, 239, 241 Gilman v. Philadelphia 40, 77, 78 Gilvary v. Cuyahoga Valley Ry 153, 213, 226 Gloucester Ferry Co. v. Pennsylvania . . . . 24, 86, 88 Gooch v. United States 174, 176, 236 Gordon v. United States 63 Gowling v. United States 129 Griswold v. The President of the United States . .176 Grosjean v. American Press Co 227 Groves v. Slaughter 71 Gulf Fisheries Co. v. Maclnerney 198 Guy v. Mayor of Baltimore 94» 95 Hall v. De Cuir 93, 108, Hammer v. Dagenhart . 4 , 127, 151, 167, 172, Hanley v. Kansas City Southern Ry Hart v. B. F. Keith Vaudeville Exchange Hartford Accident and Indemnity Co. v. Delta Pine Land Hays v. Pacific Mail Steamship Co Hebe Company v. Shaw Heisler v. Thomas Colliery Co Helson and Randolph v. Kentucky Helvering v. Towers Henderson v. T h e Mayor of New York

217, 225 174, 176 65, 188 146 Co. 187 103, 104 198 192, 202 202 151, 177 51, 81

248

T A B L E OF CASES

Henderson Bridge Co. v. Kentucky Henry Ford and Son v. Little Falls Fibre Co Hepburn v. Griswold Hicklin v. Coney Hing v. Crowley 97, Hipolite Egg Co. v. United States 61, Hoke v. United States 24, 6i, Holden v. Maine Central R . R Home Building and Loan Association v. Blaisdell . . 4, Home Insurance Co. v. Dick Hooper v. California 24, 89, Hope Natural Gas Co. v. Hall Hopkins v. United States . . 2 6 , 126, 140, 145, Hopkins Federal Savings and Loan Association v. Cleary 1 5 1 , Houston, East and West Texas Ry. v. United States 159, 160, 161, 162, Howard v. Illinois Central R . R . (First Employers' Liability Case) 118, Hudson County Water Co. v. McCarter Hughes Bros. v. Minnesota Hygrade Provisions Co., Inc. v. Sherman

130 127 63 223 102 173 173 188 142 187 186 193 238 177 226 134 218 191 224

Illinois Central R . R . v. Behrens 134 Illinois Central R . R . v. Public Utilities Commission . .162 Illinois Commerce Commission v. United States .164 Indiana Farmer's Guide Publishing Co. v. Prairie Farmer Publishing Co 120, 145 Industrial Accident Insurance Commission of California v. Davis 134, 136, 185 Inter-City Coach Co. v. Atwootl 188 International Bridge Co. v. New York 40 International Milling Co. v. Columbia Transportation Co. 223 International Paper Co. v. United States 167 International Text Book Co. v. Pigg 127, 128 Interstate Commerce Commission v. Brimson . .167 Interstate Commerce Commission v. Goodrich Transit Co. 120, 153 Interstate Commerce Commission v. Illinois Central R . R . . 153 Jacobs, In re James Stewart and Co. v. Rivara Johnson v. Gordon Johnson Oil Refining Co. v. Oklahoma Jones v. Securities and Exchange Commission

.

.

.

.

102 213 60 225 236

T A B L E OF CASES

249

Jordan v. Tashiro Justices of Supreme Court v. Murray Kansas v. Colorado Kansas City Structural Steel Co. v. Arkansas Kelly v. Rhoads Kidd v. Pearson Kirmeyer v. Kansas

127 63 .

.

21, 142, 178 . 200 192 101, 143, 192 188, 189 .

Lake Shore and Michigan Southern Ry. v. Ohio 40, 228, 229 Lancaster v. McCarty 153 Lehigh Valley R.R. v. Pennsylvania 188 Leisy v. Hardin 124, 197, 199, 207 Lemke v. Farmers' Grain Co 139, 143, 192 Lewis Publishing Co. v. Morgan 236 License Cases . . 20, 23, 29, 30, 39, 43, 44, 52, 53, 56, 66, 67, 68, 69, 70, 74, 91, 94, 127, 219, 227 Liverpool Insurance Co. v. Massachusetts 89, 186 Livingston v. Van Ingen 22, 33 Loan Association v. Topeka 9, 34, 102 Local 167 of International Brotherhood of Teamsters, Chauffeurs, Stablemen and Helpers of America v. United States 147, 151 Lochner v. New York 9, 116 Loewe v. Lawlor 145 Lord v. Goodall 90 Lottery Case 61, 172 Louisiana Public Service Commission v. Texas and N. O. R.R. 164 Louisville and Nashville Railroad Company v. Mottley . .168 Louisville and Nashville Railroad Company v. Parker 135 Louisville Bridge Co. v. United States 153 Low v. Austin 197 McCall v. California 24, 127, 222 McCluskey v. Marysville and N. Ry 135, 185 McCulloch v. Maryland . . . . 15, 17, 18, 20, 122, 124 McDermott v. Wisconsin 124, 182, 236 McLean v. Arkansas 9 McNiel, Ex parte 78 Madisonville Traction Co. v. St. Bernard Mining Co. 9, 34, 102 Marbury v. Madison 47, 63 Marshall v. Grimes 87 Martin v. Hunter's Lessee 20

250

T A B L E O F CASES

May and Co. v. New Orleans 196, 198 Memphis Merchant's Exchange v. Illinois Central R . R . 162 Metcalf and Eddy v. Mitchell 177 Metropolitan Opera Co. v. Hammerstein 121 Miller v. Mayor of New York (Brooklyn Bridge Case) 65 Miller v. Milwaukee 227 Mills v. County of St. Clair 87 Minneapolis and St. Louis R . R . v. Winters 136, 185 Minnesota v. Barber 95, 96, 97, 228 Minnesota v. Blasius . 139, 142, 184, 192, 229, 238 Minnesota Rate Cases 155, 160, 221 Mintz v. Baldwin 213, 223, 227 Mississippi River Bridge Co. v. Lonergan 87 Mississippi River Commission v. Illinois Central R . R . . 228, 229 Missouri v. Holland 219 Missouri Pacific R . R . v. Porter 213 Missouri Pacific R . R . v. Stroud 65, 188 Mobile v. Kimball 81, 127 Modern Woodmen of America v. Mixer 186 Mondou v. N. Y „ N. H. and H. R . R . . . 118, 120, 134, 152, 158, 168, 2 1 3 Monongahela Navigation Co. v. United States . .167 Moore v. Chesapeake and Ohio R y 135 Moore v. New York Cotton Exchange 147 Morgan v. Louisiana 90, 93, 216, 227 Morgan v. Parham 105 Mugler v. Kansas 1 0 1 , 102, 116 Munn v. Illinois 103, 110, 1 1 1 , 1 1 5 , 1 1 6 Murray's Lessee v. Hoboken Land and Improvement Co. 99 198 Mutual Film Corp. v. Kansas Napier v. Atlantic Coast Line R . R 213 Nathan v. Louisiana 128 National League of Professional Baseball Clubs v. Federal Baseball Club of Baltimore 121 National Union Fire Insurance Co. v. Wanberg . .186 Nebbia v. New York 199, 226 Newark v. Central R . R . of New Jersey 40 New England Divisions Case 163 New Mexico v. Denver and R i o Grande R . R 202 New State Ice Co. v. Liebman 152 New York v. Miln 43, 44, 45, 51, 54 New York v. United States 164, 168

T A B L E OF CASES New New New New New New New

251

York York York York York York York

Central R.R. v. Marcone . 135, 136, 137 Central R.R. v. Porter 135 Central R.R. v. White 136, 185 Central and Hudson River R.R. v. Hudson County 88 Central and Hudson River R.R. v. United States . 118 Life Insurance Co. v. Cravens . . . 24, 89, 186 Life Insurance Co. v. Deer Lodge County 89, 127, 128, 186, 187 New York, N. H. and H. R.R. v. Bezue . 135, 136 New York, N. H. and H. R.R. v. Carr 134 New York, N. H. and H. R.R. v. New York 225 Noble v. Mitchell 186 Noble State Bank v. Haskell 43 Norfolk and Western Ry. v. United States .167 Norman v. Baltimore and Ohio R . R 168 Northern Pacific R.R. v. North Dakota 162 Northern Securities Co. v. United States . 145, 238 Northwestern Bell Telephone Co. v. Nebraska State Ry. Com. 164 Northwestern Fertilizing Co. v. Hyde Park . 102, 115 Nutting v. Massachusetts i8fi Ogden v. Gibbons Ogden v. Saunders O'Gorman and Young v. Phoenix Fire Insurance Co. Ohio v. United States Oklahoma-Arkansas Telephone Co. v. Southwestern Bell Telephone Co Oliver Iron Mining Co. v. Lord Oregon-Washington Railroad and Navigation Co. v. Washington Oriental Society, Bankrupt, In re

22 32 9 164 128 193 239 121

Pacific Telephone and Telegraph Co. v. T a x Commission of Washington 159, 171, 223, 229 Packer Corporation v. Utah 198 Page v. Pendleton 14 Panama Refining Co. v. Ryan 195 Pantomimic Corp. v. Malone 129 Passenger Cases . . . . 41, 47, 52, 61, 66, 71, 72, 74 Paul v. Virginia 24, 89, 128, 186, 187 Pederson v. Delaware, L. and W. R.R 134 Peik v. Chicago and Northwestern Ry. . . . 103, 110, 111 Penhallow v. Doane 20

252

T A B L E OF CASES

Pennoyer v. Neff Pennsylvania v. West Virginia Pennsylvania v. Wheeling and Belmont Bridge Co.

101 202, 219 . 40, 62, 63, 77. '53 Pennsylvania R . R . v. Clark Bros. Coal Co 138 Pennsylvania R . R . v. Illinois Brick Co 164 Pensacola Telegraph Co. v. Western Union Telegraph Co. . 128 People v. Compagnie Générale Transatlantique . . . 80 Pervear v. Commonwealth 39 Philadelphia and R . Ry. v. Di'Donato 134 Philadelphia and R . Ry. v. Hancock 134, 138 Philadelphia and R. Ry. v. Pennsylvania 202 Philadelphia, B. and W. R . R . v. Smith 136 Philadelphia Fire Association v. New York .186 Pierce v. New Hampshire 197 Pigeon River Improvement Slide and Boom Co. v. Cox . 2 1 1 , 2 1 3 Pipe Line Cases 131 Piqua Branch of the State Bank of Ohio v. Knoop . . . 60 Plessy v. Ferguson 93 Plumley v. Massachusetts 197, 228 Port Richmond, etc., Ferry Co. v. Board 88 Powell v. Pennsylvania 116 Powers v. Commissioner 177 Price v. Illinois 198 Prigg v. Pennsylvania 42 Public Clearing House v. Coyne 236 Purity Extract Co. v. Lynch 198 Rahrer, In re 63, 75, 127, 206, 207, 208, 216 Railroad Commission of Louisiana v. St. Louis Southwestern Ry 160 Railroad Commission of Wisconsin v. Chicago, B. and Q. R.R 153, 182 Railroad Co. v. Fuller 92, 216 Railroad Co. v. Husen 92, 93, 131, 216 Railroad Co. v. Jackson 103 Railroad Co. v. Maryland 28 Railroad Retirement Board v. Alton R . R . . 48, 120, 121, 153, 169, 171, 2 1 1 , 233 Ramsey Co. v. Associated Bill Posters of the United States and Canada 120 Rapier, Ex parte 236 Raymond v. Chicago, M. and St. P. Ry 136 Raymond Lumber Co. v. Raymond L. and W. Co. . .168

T A B L E OF CASES Reagan v. Farmers Loan and Trust Co Rearick v. Pennsylvania Reichert v. Felps Rhodes v. Iowa Ribnik v. McBride Robbins v. Shelby Taxing District Rupert v. United States

253 111 138 63 199, 208 9 95, 96 173

St. Clair County v. Interstate Transfer Co 88 St. Louis and San Francisco Ry. v. Public Service Commission of Missouri 228, 229 St. Louis Iron Mountain and Southern Ry. v. Hesterley . 203 St. Louis Iron Mountain and Southern Ry. v. Taylor .118 St. Louis Ry. Co. v. Spriggs 188 St. Louis, S. F. and T . Ry. v. Seale 134 Sault Ste. Marie v. International Transit Co 88 Savage v. Jones 124 Schechter (A. L. A.) Poultry Corporation v. United States . 4, 48, 120, 126, 141, 148, 150, 152, 175, 179, 232, 239 Schollenberger v. Pennsylvania 103, 124, 198 Scott v. Sandford 100 Seaboard Air Line Ry. v. Blackwell 205, 221 Seaboard Air Line Ry. v. Horton 213 Second Employers' Liability Case 158 Seelig v. Baldwin 198 Shanks v. Delaware, Lackawanna and Western R.R. 137 Sharpless v. Mayor of Philadelphia 101 Sherlock v. Ailing 92, 216, 217 Shreveport Rate Cases 159, 161, 162, 226 Sickel v. Commonwealth 130 Silz v. Hesterberg 197 Slaughter House Cases 34, 102, 116 Sligh v. Kirkwood 202, 218, 221 Sloan v. United States 129 Small Co. v. Langborn and Co. 147 Smith v. Alabama 225 Smith v. Maryland 91 Smith v. St. Louis and Southwestern Ry 227, 228 Smythe v. Ames 111 Sonneborn Bros. v. Cureton 197 South Carolina v. Georgia 65 South Carolina Power Co. v. South Carolina Tax Commission 193 South Covington and C. Street Ry. v. Covington . . 225 Southern Pacific Co. v. Jensen 12

254

T A B L E OF CASES

Southern Ry. v. Puckett 135 Southern Ry. v. Railway Commission of Indiana 158, 213 Southern Ry. v. United States 153, 158, 161 Stafford v. Wallace . . . 26, 126, 141, 143, 144, 184, 238 Standard Oil Co. v. Graves 197 Standard Oil Co. of Indiana v. United States 145 Standard Oil Co. of New Jersey v. United States 145, 146 State v. Hollyman 129 State v. Illinois Central R.R. Co 28 State v. McCullagh 131 State v. Sawyer 131 State Freight T a x Case 78 State T a x on Foreign Held Bonds 103 Steamship Co. v. Joliffe 78 Steamship Co. v. Portwardens 91 Stone v. Farmers Loan and Trust Co 103, 1 1 1 Sturges v. Crowninshield . . . 14, 15, 16, 31, 32, 33 Sugar Institute v. United Slates 145, 147 Swift and Company v. United States 126, 139, 140, 145, 238 Tagg Bros. v. United States Technical Radio Laboratory v. Federal Radio Commission Terrett v. Taylor 34, Texas v. United States 163, Texas v. White Texas and New Orleans R.R. v. Brotherhood of Railway Steamship Clerks Texas and Pacific Ry. v. Rigsby Texas Co. v. Brown Texas Transport and Terminal Co. v. New Orleans Thornton v. United States Thurlow v. Massachusetts Tiernan v. Rinker Towne v. Eisner Trade Mark Cases Transit Commission v. United States Tugwell and Madison v. Eagle Pass Ferry Co Turner v. Maryland Tyson v. Banton Union Bridge Co. v. United States Union Dry Goods Co. v. Georgia Public Service Co.

142 128 101 226 179 158 158 197 222 131 66 95 122 63 213 87 93 9

127 .168

T A B L E OF CASES

255

Union Refrigerator Transit Co. v. Kentucky -225 United States v. American Bond and Mortgage Co. .128 United States v. Baltimore and Ohio R . R 63 United States v. Butler 4, 120, 127, 150, 177, 180, 192, 233 United States v. California 153. 158 United States v. Constantine 151, 177 United States v. Coombs 53 United States v. Delaware and Hudson Co 173 United States v. De Witt 63 United States v. E. C. Knight Co. . 127, 143, 145, 153, 192, 202 United States v. Ferger 144 United States v. Fox 63 United States v. Hill 129, 173 United States v. Johnston 129 United States v. Joint Traffic Association .168 United States v. Klein 63 United States v. Louisiana 164 United States v. Marigold 61 United States v. Mitchell 130 United States v. Painters District Council No. 14 . 145 United States v. Peters 20 United States v. Popper 173 United States v. Reading Company 145 United States v. Reese 63 United States v. Sandoval 25 United States v. Shauver 130 United States v. Simpson 129, 130 United States v. Trans-Missouri Freight Association .168 United States v. Trenton Potteries Co 145 United States v. United States Steel Corp 146 United States v. Village of Hubbard 168 Utah Power and Light Co. v. Pfost 194 Veazie v. Moor Vidalia v. McNeely Voight v. Wright Wabash, St. Louis and Pacific Ry. Co. v. Illinois . Wagner v. Covington Ward v. Maryland Ware v. Hylton

28 88, 229 95, 97 28, 94, n o , 116, 225, 229 198 94 20

256

T A B L E OF CASES

Webber v. Virginia 95 Weber v. Freed 173 Weigle v. Curtice Bros. Co 124 Welton v. Missouri 78, 79, 95 West v. Kansas Natural Gas. Co 218 Western Union Telegraph Co. v. Boegli 229 Western Union Telegraph Co. v. Foster 128, 138 Western Union Telegraph Co. v. Speight . 65, 128, 187, 188 Whitfield v. Ohio . . . . 176, 199, 208, 2 1 1 , 234, 238 Wiggins Ferry Co. v. East St. Louis 86, 88 Wilkerson v. Rahrer . 6 3 , 75, 127, 206, 207, 208, 216 Williams v. Fears 24, 127, 217, 229 Williams v. Walsh 198 Wilmington Transportation Co. v. Railroad Commission 65, 189 Wilson v. McNamee 81 Wilson v. New 142 Wilson v. The Blackbird Creek Marsh Co. . 38, 39, 43, 68, 205 Winona and St. Peter R . R . v. Blake

Wisconsin v. Duluth Wisconsin R . R . Commission v. Chicago, B. and Q. R . R . Woodruff v. Parham Wynehamer v. New York York Mfg. Co. v. Colley

103, 1 1 0

65 162, 164 197 100 200

TABLE OF LEADING ARTICLES CITED Asbill. State Regulation of Motor Vehicles Operating in Interstate Commerce (1931) 17 A. B. A. J . 87 . . . . Barber. State Taxation of Electrical Generation for Interstate Transmission (1933) 3 Idaho L. J . 1, 7 . . . Bikll. The Commerce Power and Hammer v. Dagenhart (1919) 67 U. of. Pa. L. Rev. 21 166, Bikle. The Silence of Congress (1927) 41 Harv. L. Rev. 200, 213 203, Bird. The Evolution of Due Process of Law in the Decisions of the United States Supreme Court (1913) 13 Col. L. Rev. 37 99. Black. The Commerce Clause and the New Deal (1935) 20 Corn. L. Q. 169 Black. Significance of the "Divesting Theory" in the Regulation of Milk (1935) 23 Ky. L. J . 589 Brown. State Taxation and Interstate Commerce (1933) 81 U. of Pa. L. Rev. 247 Bruce. Interstate Commerce and Child Labor (1919) 3 Minn. L. Rev. 89 Cairns. Review of Stephen J . Field: Craftsman of the Law, by Carl Brent Swisher (1931) 40 Yale L. J . 999 . . Cathcart. The Supreme Court and the New Deal (1936) 9 So. Calif. L. Rev. 331 Cohen and Dayton. Federal Taxation of State Activities 0935) 34 Yale L. J. 807 Coleman. The Evolution of Federal Regulation of Intrastate Rates; The Shreveport Rate Cases (1914) 28 Harv. L. Rev. 51 ff, 34, 69 in. Collier. Judicial Bootstraps and the General Welfare Clause (1936) 4 Geo. Wash. L. Rev. 211 Conovan. State Compacts (1931) 80 U. of Pa. L. Rev. 5 . Cooke. Nature and Scope of the Power of Congress to Regulate Commerce (1911) 11 Col. L. Rev. 51 . . . .

166 193 171 210 101

131 200 191 166 115 180 177 159 150 114 127

258

T A B L E OF L E A D I N G A R T I C L E S C I T E D

Cooke. The Pseudo-Doctrine of the Exclusiveness of the Power of Congress to Regulate Commerce («911) 20 Yale L. J . 297 202 Cooke. What Is the Police Power? (1907) 7 Col. L. Rev. 322 41 Corwin. The Anti-Trust Acts and the Constitution (1932) 18 Va. L. Rev. 355, 357 145. 1 46 Corwin. Congress' Power to Prohibit Commerce, a Crucial Constitutional Issue (1933) 18 Corn. L. Q. 477, 481 ff . 157, 166, 171, 178 Corwin. T h e Doctrine of Due Process of Law before the Civil War (1911) 24 Harv. L. Rev. 366, 460, 475, 375 ff 39, 43' 5 6 . 99- 1 0 ° . 1 0 1 Corwin. The Higher Law Background of American Constitutional Law (1929) 42 Harv. L. Rev. 166 . 1 1 , 12, 13, 15, 16 Convin. The Schechter Case—Landmark or What? (1936)13 N. Y. U. L. Q. Rev. 151 148 Cousens. The Use of the Federal Interstate Commerce Power to Regulate Matters within the States (1934) 21 Va. L. Rev. 5l • 13». i7 8 Cushman. T h e National Police Power under the Commerce Clause of the Constitution (1919) 3 Minn. L. Rev. 292 ff, 289, 381, 452, 290 ff 20, 166, 178 Cushman. Social and Economic Control through Federal Taxation (1934) 18 Minn. L. Rev. 759 3 Denison. States Rights and the Webb-Kenyon Liquor Law (1914) 14 Col. L. Rev. 320 Dickinson. Anti-Trust Laws and the Self Regulation of Industry (1932) 18 A. B. A. J . 600 Dodd. The Power of the Supreme Court to Review Slate Decisions in the Field of Conflict of Laws (1926) 39 Harv. L. Rev. 533 Donovan. The Effect of the Decision in the Sugar Institute Case upon Trade Association Activities (1936) 84 U. of Pa. L. Rev. 929 Donovan and McAllister. Consent Decrees in the Enforcement of Federal Anti-Trust Laws (1933) 46 Harv. L. Rev. 885 Dowling. Concurrent Power under the Eighteenth Amendment (1922) 6 Minn. L. Rev. 450 Dowling and Hubbard. Divesting an Article of Its Interstate Character (1920, 1921) 5 Minn. L. Rev. 100, 129, 253 207,

206 146 187 146 146 2g 197, 208

TABLE OF LEADING ARTICLES CITED

259

Dowling, C h e a t h a m a n d Hale. Mr. Justice Stone and the Constitution (1936) 36 Col. L. Rev. 351, 357

223

Elder. Interstate Commerce-Motor Bus and Motor T r u c k T r a n s p o r t a t i o n Companies (1926) 21 111. L. Rev. 166 .

166

F r a n k f u r t e r . H o u r s of L a b o r and Realism in Constitutional Law (1916) 29 H a r v . L. Rev. 353 F r a n k f u r t e r . T a n e y a n d the Commerce Clause (1936) 49 H a r v . L. Rev. 1286 F r a n k f u r t e r a n d Landis. T h e Compact Clause of the Constitution (1925) 34 Yale L. J. 685

9 55 114

Goodnow. T h e Power of Congress to Regulate Commerce (1910) 25 Pol. Sei. Q. 220 28 Gordon. T h e Child Labor Law Case («918) 32 Harv. L. Rev. 45 166 Grant. Commerce, Production, and the Fiscal Powers of Congress (1936) 45 Yale L. J. 751, 756, note 34 . 3, 52, 150 Grant. T h e " H i g h e r L a w " Background of the Law of Emin e n t D o m a i n (1931) 6 Wis. L. Rev. 67 . 12, 14 Grant. T h e N a t u r a l Law Background of Due Process (1931) 31 Col. L. Rev. 56 12, 14 Graves. T h e Reed "Bone Dry" Amendment (1917) 4 Va. L. Rev. 634 129 Greeley. W h a t Is the Test of a Regulation of Foreign or Interstate Commerce (1887) 1 Harv. L. Rev. 158 . 37, 41, 44 Green. T h e Constitutionality of the A. A. A. Processing T a x (1935) 14 N. C. L. Rev. 29 150 Haines. T h e Law of N a t u r e in State and Federal Judicial Decisions (»916) 25 Yale L. J. 617 12, 14 Hale. T h e Constitution and the Price System: Some Reflections on Nebbia v. New York (1934) 34 Col. L. Rev. 401 199 Hall. T h e State T a x o n Illinois Central Gross Receipts (1907) 2 111. L. Rev. 21 28 Hamilton. T h e Problem of Anti-Trust Reform (1932) 32 Col. L. Rev. 173 146, 147 Hand. Commodities Clause and the Fifth Amendment (1909) 22 Harv. L. Rev. 256 173 Handler. A n t i - T r u s t Laws and the Public Interest (1932) 18 A. B. A. J . 635 146

260

TABLE OF LEADING ARTICLES CITED

Handler.

T h e Columbia Symposium on the Anti-Trust Laws

(1932) 18 A. B. A. J . 265

146

Handler. Industrial Mergers and the Anti-Trust Laws (1932) 32 Col. L. Rev. 179, 193 145, 146, 147 Handler. T h e Sugar Institute Case and the Present Status of the Anti-Trust Laws (1936) 36 Col. L. Rev. 1 .146 Hardman. Does the "Bone Dry" Law Prohibit the Interstate Transportation of Intoxicants by the Owner for Personal Use? ( i 9 l 8 ) 2 5 w - V a - L. Q. 222 130 Hardy. Loose and Consolidated Combinations under the Anti-Trust Laws (1933) 21 Geo. L. J. 123 . . . . 146 Harper. Natural Law in American Constitutional Theory (1927) 26 Mich. L. Rev. 60 12, 14 Hart. Processing Taxes and the Protective Tariff (1936) 49 Harv. L. Rev. 610 150 Hastings. T h e Development of Law as Illustrated by the Decisions relating to the Police Power of the States (1900) 360, 365, Proceedings o£ the American Philosophical Society 1900

Hough.

41, 42

Due Process of Law—Today (1919) 32 Harv. L. Rev.

218, 222, 224

99, 100

Innes. Insurance in Its Relation to the Commerce Clause of the Federal Constitution (1900) 48 Am. L. Reg. 717 .

89

Kauper. State Regulation of Interstate Motor Carriers (1933) 31 Mich. L. Rev. 920, 1097 28, 166 Kerr. T h e Webb Act (1913) 22 Yale L. J. 567 . 206 Kneier. Interstate Ferries and the Commerce Clause (1928) 26 Mich. L. Rev. 631 87 Kreider. A Brief History of the Growth of Anti-Trust Legislation in the United States (1934) 7 So. Calif. L. Rev. 144, 146

145» M 6

Lewis. Constitutional Questions Involved in the Commodities Clause (1908) 21 Harv. L. Rev. 595 Light. The Supreme Court and Commerce by Motor Vehicle (1929) 7 N . C. L. Rev. 268

172 166

Llewellyn. T h e Constitution as an Institution (1934) 34 Col. L. Rev. 1, 15 1 1 5 , 154 McCormick. Regulation of Motor Transportation (1933) 22 Calif. L. Rev. 24

166

T A B L E O F LEADING A R T I C L E S C I T E D Maggs. T h e Constitution and the Recovery Legislation; T h e Roles of Document, Doctrine and Judges (1934) 1 U. Chi. L. Rev. 665, 673 Magill. T a x Exemption of State Employees (1926) 35 Yale

L- J- 956

s6i

»3«

»77

Martin. Constitutionality of the Securities Exchange Act of »934 (i935) 21 A. B. A. J. 8 1 1 Naujoks. Monopoly and Restraint of T r a d e under the Sherman Act (1928-29) 4 Wis. L. Rev. 387, 451, 5 Wis. L. Rev. J. 65' I 2 9 Needham. T h e Exclusive Power of Congress over Interstate Commerce (1911) 11 Col. L. Rev. 251

236

»47 202

Parkinson. Congressional Prohibitions of Interstate Commerce (1916) 16 Col. L. Rev. 367 157 Pound. T h e American Constitution in the Light of Today (1934) 68 U. S. L. Rev. 304 239 Pound. Liberty of Contract (1909) 18 Yale L. J. 454 . 9, 12, 14, 16 Pound. Mechanical Jurisprudence (1908) 8 Col. L. Rev. 611, 612, 616 10, 220 Pound. T h e Place of Judge Story in the Making of American Law (1914) 48 Am. L. Rev. 676, 690 . . . 15, 16 Powell. T h e Child Labor Law, the T e n t h Amendment and the Commerce Clause (1918) 3 So. L. Q. 175-202 . .166 Powell. Commerce, Pensions, and Codes 2 (1935) 49 Harv. L. Rev. 193, 1, 8 148, 153, 169, 180 Powell. Contemporary Commerce Clause Controversies over State Taxation (1928) 76 U. of Pa. L. Rev. 773, 958 . 191, 225 Powell. Current Conflicts between the Commerce Clause and State Police Power (1928) 12 Minn. L. Rev. 607 . 214 Powell. T h e Judiciality of Minimum-Wage Legislation (1924) 37 Harv. L. Rev. 545 114 Powell. Some Aspects of Constitutionalism and Federalism 0935) J 4 N. C. L. Rev. 1, 16, 11 148, 182 Powell. Taxation of Things in Transit (1920, 1921) 7 Va. L. Rev. 167, 245, 449, 497 192 Powell. T h e Validity of State Legislation under the WebbKenyon Law (1917) 2 So. L. Q. 112, 137 . 206, 210 Ribble. T h e Current Rev. 296

of Commerce

(1934) 18 Minn. L.

171

262

TABLE OF LEADING ARTICLES CITED

Ribble. T h e Due Process Clause a n d Municipal Discretion (1930) 16 Va. L. Rev. 689 Rinehart. Conservation of N a t u r a l Resources and Legal Control (1933) 18 Minn. L. Rev. 168 Rogers. T h e Constitutionality of the Webb-Kenyon Bill (1913) 1 Calif. L. Rev. 499 Rogers. Interstate Commerce in Intoxicating Liquors before the Webb-Kenyon Act (1916) 4 Va. L. Rev. 174, 288, 353 Rogers. T h e Power of the States over Commodities Excluded by Congress from Interstate Commerce (1915) 24 Yale L. J. 567 Rogers. State Legislation u n d e r the Webb-Kenyon Act (1915) 28 Harv. L. Rev. 225 206, Rogers. Unlawful Possession of Intoxicating Liquors and the Webb-Kenyon Act (1916) 16 Col. L. Rev. 1 Ross. Has the Conflict of Laws Become a Branch of Constitutional Law (1931) 15 Minn. L. Rev. 161 Ryan. Industrial Recovery and the Anti-Trust Laws (1933) 13 B. U. L. Rev. 577

170 146 206 206 206 207 207 187 146

Sharp. Movement in Supreme Court Adjudication (1933) 46 Harv. L. Rev. 361, 604 197 Sholley. T h e Negative Implications of the Commerce Clause ( J 9 3 6 ) 3 u - o f Chi. L. Rev. 583 ff, 556 . 85, 239 Stern. T h a t Commerce W h i c h Concerns More States than One (1934) 47 Harv. L. Rev. 1335 131, 154 Wahrenbrock. Federal Anti-Trust Law and the National Industrial Recovery Act (1933) 31 Mich. L. Rev. 1009 146, White. T h e Case of the Processors against the People (1936) 22 Va. L. Rev. 546 Wolff. Business Monopolies (1935) 9 T u l a n e L. Rev. 326 Wright. State and Federal Regulation of R a d i o Broadcasting (1933) 2 Geo. W . L. Rev. 13

147 150 146 129

INDEX Adams, John, 13 Administrative action, 239 Articles of Confederation, 3, 55 n 8

Congress: activity of, 8, n 8 f ; inactivity of, 7, 8, 1 1 7 ; intent o f , 75, 84; legislative sanction given to economic theories by, 147; silence of, 8, 40, 49,

Bacon, Francis, 57 B a l d w i n , Henry, Associate Justice, 55 B a r b o u r , Philip P., Associate Justice, 54. 55 B e a r d , Charles, 55 B e n t h a m , J e r e m y , 16 n 40 Beveridge, Albert P., 17 n 42 Blackstone, Sir W i l l i a m , 12 n 26 B r a d l e y , Joseph P., Associate Justice, 1 1 5 n 20, 1 1 6 B r e w e r , David J . , Associate Justice, 116 Bridges, 62, 153 B r o w n , Henry Curtis, Associate Justice, 116

5°> 75- 77> 7 8 ' 8 0 85 n 6 3> l o 8 > 2 ° 3 ' 204, 207 ff; superseding state action, 2 1 2 ff, 226; will o f , 8, 202 ff, 231 ff Constitutional Convention, 3 , 239 Constitutional law: flexibility, 189, 190; judicial manufacture, 1 1 4 , 1 1 6 Coolidge, Calvin, 46 n 87 Cooperation, national and state, 62, 63, 172 n 73, 234 Corwin, Edward S., 57 Criminal laws, 176, 236 Current of commerce, 1 3 1 , 138 ff, 154 Curtis, Benjamin R . , Associate Justice, 74. 76. 77

Buses, 165, 166, 188, 189

Daniel, P. V., Associate

Canals, 58, 59 Cardozo, B e n j a m i n N „ Associate Justice, 47 n 91, 58 Carriers: bookkeeping, 153; limited liability, 153 Cars, allotment of, 153 Catron, J o h n , Associate Justice, 53 n 1, 54, 67 n 5, 68 Chase, Salmon P., Chief Justice, 115, 1 5 9 n 18 Civil law, 15 n 38 Clay, Henry, 6 Clifford, Nathan, Associate Justice, 115 n 20 Coke, Sir Edward, 1 1 n 22, 1 5 n 36, 99, 100 Commerce: definition, 26 n 23, 89, 127 ft; federal power over, 6 1 ff, 126 ff; growth of, 58 fr, 1 1 2 ff; legitimate subjects of, 62; with I n d i a n tribes, 25 n 22. See also Foreign commerce; Interstate commerce Commodity clause, 1 7 3

Justice,

39 n

60. 55. 69• 72 » 25 Davis, David, Associate Justice, 115 n 20 Declaration of Independence, 1 3 Delegation of legislative power, 149 Dual system of government, 177 ff Due process: and commerce clauses, coincide in limiting state action, 103 ff, 170 ff, 225, 226; development of. 98 ff; limiting the commerce power, 167 ff; oil conservation and, 195; rate regulation and, 1 1 1 , 1 1 6 ; social legislation and, 1 1 6 Duvall, Gabriel, Associate Justice, 54 Employers' Liability Act, 134 ff, 168 n 54, 185 Federal power: activities affecting interstate commerce, 134, 1 4 1 ; adjustment with state power, 3, 150; limited by state power, 150 ff. See Interstate commerce

INDEX

264

Ferriage, 86 ff Field, Stephen J., Associate Justice, 1 1 5 n so, 116 Fifth A m e n d m e n t , 100 n 58 Foreign commerce, n o power in states to regulate, 72 Fourteenth A m e n d m e n t , 42, 98 ff F r a n k f u r t e r , Felix, 55 Fuller, Melville W „ Chief Justice, 1 1 6 Gavit, Bernard C„ 85 n 63 Grange, National, 110 Grier, Robert C., Associate 69

Justice,

55,

Hamilton, Alexander, 31, 150 Harbors: federal improvement of, 65; state improvement of, 81 n 55 H a r l a n , J o h n , Associate Justice, 1 1 5 Hawes-Cooper Act, «34 n 6 , 238 n i g H e p b u r n Act, 173 Holmes, Oliver Wendell, Associate Justice, 117, 122, 138, 140, 219 n i l H o u r s of Service Act, 161 Hughes, Charles Evans, Chief Justice, 4. »59. >77 H u n t , Ward, Associate Justice, 1 1 5 n 20 H u n t e r , 33 n 4 5 Imports, duties on, 94, 95 Inspection laws, 36, 93 n 35 Insurance, 89, 127, 186 Interstate commerce: activities directly affecting, f r o m viewpoint of federal power, 144, 1 4 7 s , 151; activities in, 120 n 72, 126 n 1; activities indirectly affecting, f r o m viewpoint of federal power, 148 ff, 151; b u r d e n s on, 92 ff, 104, 107, 171 n66, 204, 205, 215 ff; coincidence with d u e process limitation on state action, 170 ff, 191 ff, 195, 225, 226; concurrent power of Congress a n d states over, 29 ff, 35, 39 n 51, 49. 5°' 7°. 75s°3. 234; definitions, 24, 44, 48, 65, 105, 126 ff, 182, 233, 235; discrimination in, 80, 94 ff, 228; divestment of interstate character, 209 ff; economic basis for determining federal power, 133, 138 ff; end, 67, 69, 196 ff; exclusive power of Congress over, 28 ff, 35 ff, 48 ff, 68 n 6, 69, 71 n 21, 71 n 22, 74, 78 ff, 88, 106, 202 ff; factual determination, 188 ff, 200; form a n d substance of, 189,

222; federal power to prohibit, 61, 166 ff, 172 ff; grain elevators a n d , 139; highways of, 64; installation of machinery as, 200; intangibles in, 128 ff; interdependence between intrastate commerce and, 153, 159; i n t e r r u p t i o n of, 192; limitations on federal power over, in Fifth Amendm e n t , 167; limitations on federal power over, in dual system of gove r n m e n t , 41, 63, 150(1, 178 ff, 233; m a n u f a c t u r i n g not, 192, 194; motive, effect of, 188, 192; n a t u r e of the power over, 7, 32 ff, 45, 46 n 88, 48, 51, 57, 68, 70, 74, 106, 123 ff, 154, 155, 231, 234; obstructions to, 64, 143 ff, 159, 165; pecuniary element unnecessary to, 129; physical basis for det e r m i n i n g federal power over, 133 ff; power to regulate, federal, 25, 120, 156 ff, 177, 203; power to regulate, state, 67, 68, 70, 73, 91 ff, 106, 107, 203; practical considerations a n d , 142, 143, 194 ff, 119, 122, 138, 140, 142, 143; production and, ig2, 194, 195; state power over, 182 If; stockyards in, 139 ff; subjects a d m i t t i n g of local regulation, 74 ff, 88, 189, 190, 216; subjects d e m a n d i n g uniformity of regulation, 74 ff, 80, 93, 94, 109, 189, 216; subjects of the power over, 8, 49, 68 ff, 74 ft, 106, 107, 205, 215, 231 ; terminology of, 234 ff; territorial lest, 187 fl. See also Federal power, State power Interstate Commerce Act, 7, 118, 153 Interstate Commerce Commission, 160, 161, 163, 164, 169, 239 Intoxicating liquors, 207 ff Intrastate commerce: interdependence between commerce and, 153, 159 Jackson, Andrew, 56, 159 n 18 Jackson, Howell E., Associate Justice, 116 Jefferson, T h o m a s , 7, 13, 19, 27 n 27, 56, 150, 151 J o h n s o n , William, Associate Justice, 14, 22 n 8, 37 n 57, 44, 49 Judicial process, n g f f , 142 Kent, James, 15 n 38, 33 n 46 Kidnapping, 176

INDEX Lamar, Joseph R., Associate

Justice,

•59 Lamar, L. Q. C„ Associate Justice, 116 Lansing, John, 33 n 46 Licenses, 64 Lincoln, Abraham, 15g n 18 Locke, John, 13, 14, 16 1140 Lotteries, 17a Lurton, Horace H „ Associate Justice, «59 McKenna, Joseph, Associate Justice, 117, »05 n 14 McKinley, John, Associate Justice, 54, 71 n 22 McLean, John, Associate Justice, 55, 62 n 35, 69, 71 n 22, 72 n 25, 73 Madison, James, 6, 150, 151 Magna Carta, 99, 100 Mann Act, 129, 173 Marshall, John, Chief Justice, 5, 9, 14, 17 ff, 21 n 3, 26 n 23, 33 n 46, 36, 37, 44, 46 n 90, 47, 49 ff, 56 n IO, 67 n 5, 68, 70, 73, 74, 120 n68, 124, 127 n 7, 131, 150, 151, 167, 179, 204, 205, 231,

»34 Mason, George, 14 Miller, Samuel Freeman, Associate Justice, 63 n j g , 102, 115 n 20, 116 Montesquieu, Charles Louis de Secondat, Baron de la Biede et de, 13 n 29 Motive, 68 n 7, 226 n 52. See also Purpose Motor Carrier Act, 166

265

Pensions, 153, 169 Pilotage, 37 n 56, 72 ff, 203 Pinkney, William, 17 Pitney, Mahlon, Associate Justice, 159 Police power, 41 ff, 49, 52, 68, 70, 87, 90 ff, 107, 205, 217, 224 Pollock, Sir Frederick, 10 n 20, 11 n 21, 11 n 22, 12 n 26, 14 n 36 Pound, Roscoe, 12, 16 n40 Public health, 96, 97 Public Utility Holding Company Act, 236 Pure Food and Drugs Act, 125, 173 Purpose, place of, in validity of legislative acts, 44, 51, 67 ff, go ff, 96, 97 Quarantine laws, 36, 37 n 56 Racial segregation, 93. See also Negroes Railroads: abandonment of, 153; beginning of, 69; construction of, 112 Randolph, Thomas Mann, 3 Rate regulation, 111, 153, 159 ff, 162 Reed "Bone Dry" Amendment, 129, •3° Regulation, see Foreign commerce; Interstate commerce Roosevelt, Theodore, 20 n 2

Oakley, Thomas J., 23 n 12, 33 n 46, 35 Ogden, David Raymond, 33 n 44 Original package doctrine, 69 n 11, 124 ff, 196 ff, 207

Safety Appliance Acts, 153, 158, 161 Savigny, F. K. von, 57 Sherman Act, 140, 144 ff, 153 Shiras, George, Associate Justice, 116 Slavery, 60, 71 State power: acts affecting interstate commerce, in general, 86 ff; acts directly affecting interstate commerce, g2, 93, 216 ff; acts indirectly affecting interstate commerce, 90 ff, 217 ff; extraterritorial effect, 98 ff. See also Foreign commerce; Interstate commerce States' rights, 60, 113, 150, 178 ff Stone, Harlan, Associate Justice, 223 Story, Joseph, Associate Justice, 15 n 38, 44, 49, 51, 54. 55, 100 Strong, William, Associate Justice, 115 n 20 Swayne, Noah, Associate Justice, 115 n 20

Peckham, Rufus W., Associate 117

Taft, William Howard, Chief 159

National Grange, 110 National Industrial Recovery Act, 149 Nationalism, growth of, 113 ff, 165 Natural law, 7, 8 ff, 33, 45, 57 f, 101 Natural rights, 11, 33, 101 Necessary and proper clause, 26 n 24, '39- '4 1 Negroes, 71, 93, 102 n 72 Nelson, Samuel, Associate Justice, 55, 67 n s

Justice,

Justice,

266

INDEX

Taney, Roger B „ Chief Justice, 30 n 39, 41 n 66, 42, 44, 53, 54, 56, 67, 67 n 5, 68, 70, 71, 100, 159 n 18, 205, 231, 234 Taxation: adjustment of subjects between nation and states, 194; foreign commerce, 38; gross receipts, 28 n 32; imports, 94 n 4 i ; interstate commerce, 38; limitations from dual system of government, 177; nature of power, 36; property moving in interstate commerce, 191 fi; regulation by, 63; rolling stock, 225 n 47; state charge for facilities, 227 n 54; state governmental instrumentalities, 177; state license tax, 96 n 48; state tax on privilege of entering state, 71 n 22 Thompson, Smith, Associate Justice, 55 Transportation Act of 1920, 158, 162, 163

Transportation: granted, 27 ff

state

monopolies

Van Devanter, Willis, Associate 159 Vested interests, 115

Justice,

Waite, Morrison R., Chief Justice, 116 Wayne, James M., Associate Justice, 54, 71 n 2 i , n 22, 72 n 25, 73 Webb-Kenyon Act, 75, 208 ff Webster, Daniel, 17, 18, 34, 74, 99 White, Edward D., Chief Justice, Wilson, James, 20 n 2 Wilson Act, 75, 207 ff Woodbury, Levi, Associate Justice, 67 n 5, 69 Woods, Justice, 115 Wythe, George, 14

115, 47,

116

55,

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