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modity, although not necessarily harmful, per se, or dangerous to transport, is of such a character that it is hurtful to the public morals or injurious to the public health of the state where it is being transported for consumption, when it enters into such consumption.

Undoubtedly this doctrine grew out of the well-established principle that the state where the article was intended for consumption was powerless to prevent its importation because it had surrendered its powers over interstate commerce to the general government, and had no right to place any restrictions upon such commerce before its delivery to the consignee in unbroken package.

Upon one or the other, and in some instances upon a combination of these principles, rests all the prohibitive legislation of the Congress, and all of the decisions of the courts, with the exception of a recent statute, to which I shall advert later. It was upon this theory and upon this reasoning that the pure food legislation was enacted and sustained.

A somewhat recent case, illustrating the doctrine I have attempted to state, and marking clearly, I think, the limits upon the power of Congress to prohibit commerce between the states, will be found in McDermott vs. Wis., 228 U. S. 115.

In rendering the opinion, on April 7, 1913, Mr. Justice Day said (p. 128):

"That Congress has ample power in this connection is no longer open to question. That body has the right not only to pass laws which shall regulate legitimate commerce among the states and with foreign nations, but has full power to keep the channels of such commerce free from the transportation of illicit or harmful articles, and to make such as are injurious to the public health outlaws of such commerce and to bar them from the facilities and privileges thereof."

Evidently in the opinion of the learned Justice, legitimate commerce could be regulated but not prohibited by Congress; whereas, in the case of illicit or harmful articles, that were injurious to the public health, when consumed, the power of complete exclusion from interstate commerce resided in the Congress.

Articles or commodities that are harmful to the public morals, may, under the later decision, be declared outlaws of interstate commerce and excluded therefrom by Congress. It is upon this doctrine that Congress enacted the Act of February 8, 1897, pro

hibiting the transportation in interstate commerce of obscene literature, and articles intended for indecent or immoral use; it is upon this doctrine that later opinions attempted to justify and sustain the lottery case; it is upon this doctrine that Mr. Justice Day undertook to sustain the validity of the so-called White Slave Law. (Hoke vs. U. S., 227 U. S. 308, 321, 324.)

To summarize, then, it is apparent that for many years in the earlier history of the country Congress did not assume to exercise its power to regulate commerce between the states by destroying that commerce, or by prohibiting the transportation of sound and wholesome articles and commodities by the agencies of that commerce; that the early construction of the commerce clause was that the Constitution intended that interstate commerce should be in no way restrained by the states, and should be regulated but not prohibited by the Congress; that in later decisions of our Supreme Court it has been held that regulation of such commerce may take the form of prohibition:

First, when an article or commodity is noxious, per se, inherently unsound, and therefore dangerous to the agencies of commerce, and to be excluded from transportation by them, in order to promote the freedom and safety of commerce between the states, as a whole.

Second, when acts and practices have a purpose or tendency to impede the free and untrammelled movement of such commerce, as a whole.

Third, when an article or commodity, a practice or a transaction is of such a character as to endanger the public health or to debase the public morals of the state to which such article is to be transported or in which such transaction is to be consummated by the agencies of interstate commerce.

So far the course of this character of legislation has already progressed. So far the courts, in opinions, many of which labor and contradict each other, have sustained it and upheld it.

How much further may it proceed without absolutely destroying the guaranty to the citizen, contained in the Fifth Amendment or without destroying the reserved powers of the states, as outlined in the Tenth Amendment?

How much longer can our wondrous dual system of government, the most marvelously balanced and finely tempered piece of

governmental mechanism ever devised by the mind of man, withstand these persistent attacks, these insidious assaults upon its integrity?

Let me state the question left for determination in the clean-cut words of Senator Knox's admirable address to the Yale Law School:

"The new proposition is this: Congress has the power to regulate commerce, including its instrumentalities, and likewise power to regulate the persons by whom articles of commerce are produced in respect to matters not connected with commerce. This addition to the rule finds expression in the suggestion to prohibit the interstate transportation of articles of value that are themselves innocuous and which are lawfully made or produced in a state, for reasons not affecting interstate commerce.

"Let us now consider whether the regulation of the business of producing articles which may in whole or in part go into interstate commerce, by denying to the owner the privileges of interstate commerce, for reasons not affecting such commerce is a legitimate regulation of commerce. In other words, is the mere production of goods commerce? If it is not, then can Congress regulate such production within a state under the constitutional power to regulate commerce?

"It would be difficult to overstate the importance and seriousness of the question thus presented, as upon its ultimate authoritative determination depends, it may be, the autonomy of the states in substantially all matters of internal police."

Prior to August, 1916, it might have been said that the distinguished Senator from Pennsylvania presented what was largely a moot question that the current of authority, nay, its unbroken weight, indicated that Congress possessed no such power and that the conservatism and good sense of the man who constituted its membership would furnish a guaranty against it and render it unnecessary for the highest court in the land to redeem the pledge made by Chief Justice Marshall when he said (McCollough vs. Maryland):

"Should Congress, under the pretext of executing its powers, pass laws for the accomplishment of objects not entrusted to the government [general government, of course; my note], it would be the painful duty of this tribunal to say that such an act was not the law of the land."

In August, 1916, during the first session of the 64th Congress, the most dangerous assault upon the autonomy of the states, upon the integrity of local self-government, that the entire history of

our country records, was made by the Congress of the United States when it passed the recent so-called Child Labor Law. In brief, that law, in its substantial provisions, is as follows:

"That no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate or foreign commerce any article or commodity the product of any mine or quarry, situated in the United States, in which within 30 days prior to the time of the removal of such product therefrom children under the age of 16 years have been employed or permitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States, in which within 30 days prior to the removal of such product therefrom children under the age of 14 years have been employed or permitted to work, or children between the ages of 14 years and 16 years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of 7 o'clock P. M., or before the hour of 6 o'clock A. M."

There was no pretense of disguise or concealment as to the intent and purpose of the legislation or as to its aim and object. It was stated on the floor of the Senate by one of its ablest sponsors and champions, Senator Kenyon, of Iowa, on February 22, 1916, in these words:

"Moreover the Senate plan seems simpler than the House plan, and the more effective to accomplish the end sought-the suppression of child labor through the exercise of the power of Congress to regulate commerce."

Senator Robinson, of Arkansas, reporting the bill, stated substantially the same thing. In other words, to use the exact language of Chief Justice Marshall, quoted above, "Congress under the pretext of executing its power" over commerce really passed a law for the accomplishment of an object-the regulation of hours and term of labor, and its employment-wholly within the states and wholly disconnected with commerce between them, and nothing remains except to see whether or not that great court that is the final guardian of the rights and liberties of the citizens, and of the rights and powers of the state, in which sit the successors of the great Marshall, are to make good the pledge he made for them almost a hundred years ago.

That production or manufacture is entirely separate and distinct from transportation or commerce, precedes it and is no part of it, so as to give Congress any control of manufacture, within a

state, has been uniformly held by our courts. Let me, on this point, if authority be necessary, read from the great opinion of Mr. Justice Lamar in the leading case of Kidd vs. Pearson (128 U. S. 20, 21, 22):

"No distinction is more popular to the common mind or more clearly expressed in economic and political literature than that between manufactures and commerce. Manufacture is transformation-the fashioning of raw materials into a change of form for use. The functions of commerce are different. The buying and selling and the transportation incidental thereto constitute commerce; and the regulation of commerce in the constitutional sense embraces the regulation at least of such transportation. The legal definition of the term, as given by this court in County of Mobile vs. Kimball (102 U. S. 691, 702) is as follows: Commerce with foreign countries, and among the states, strictly considered, consists in intercourse and traffic, including in these terms navigation and the transportation and transit of persons and property as well as the purchase, sale, and exchange of commodities.' If it be held that the term includes the regulation of all such manufactures as are intended to be the subject of commercial transactions in the future-it is impossible to deny that it would also include all productive industries that contemplate the same thing.

"The result would be that Congress would be invested, to the exclusion of the states, with the power to regulate not only manufactures, but also agriculture, horticulture, stock raising, domestic fisheries, mining-in short, every branch of human industry. For is there one of them that does not contemplate, more or less clearly, an interstate or foreign market? Does not the wheat grower of the Northwest and the cotton planter of the South, plant, cultivate, and harvest his crop with an eye on the prices at Liverpool, New York, and Chicago? The power being vested in Congress and denied to the states, it would follow as an inevitable result that the duty would devolve on Congress to regulate all of these delicate, multiform and vital interests-interests which in their nature are and must be local in all the details of their successful management.

"It is not necessary to enlarge on but only to suggest the impracticability of such a scheme, when we regard the multitudinous affairs involved, and the almost infinite variety of their minute details.

"It was said of Chief Justice Marshall, that it is a matter of public history that the object of vesting in Congress the power to regulate commerce with foreign nations and among the several states was to insure uniformity of regulations against conflicting and discriminating state legislation. See also County of Mobile vs. Kimball, supra, at page 697.

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