If the power of Congress over foreign commerce may be used as "an instrument for the purposes of general policy" and if the power over foreign commerce is the same as that over interstate commerce, it would be fair to conclude from these cases alone that the power over interstate commerce might likewise be used as "an instrument for purposes of general policy."

We have, however, decisions in the Supreme Court directly affirming the existence in Congress of a police power which may be exercised through its power over interstate commerce. The first important decision on this subject was the Lottery Care (1903) (188 U. S., 321), in which it was held that Congress has power to prohibit the interstate transportation of lottery tickets. In delivering the opinion of the court, Mr. Justice Harlan said:

"If a State, when considering legislation for the suppression of lotteries within its own limits, may properly take into view the evils that inhere in the raising of money, in that mode, why may not Corgress, invested with the power to regulate commerce amor g the several States, provide that such commerce shall not be polluted by the carrying of lottery tickets from one State to another (p. 356).

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* As a State

may, for the purpose of guarding the morals of its own people, forbid all sales of lottery tickets within its limits, so Cor gress, for the purpose of guarding the people of the United States against the 'widespread pestilence of lotteries' and to protect the commerce which concerns all the States, may prohibit the carrying of lottery tickets from one State to another. * * * We should hesitate lor g before adjudging that an evil of such appalling character, carried on through interstate commerce, can not be met and crushed by the only power com petent to that end. We say competent to that end, because Corgress alone has the power to occupy, by legislation, the whole field of interstate commerce (p. 357). * * * If the carrying of lottery tickets from one State to another be interstate commerce, and if Cor gress is of opinion that an effective regulation for the suppression of lotteries carried on through such commerce, is to make it a criminal offense, to cause lottery tickets to be carried from one State to another, we know of no authority in the courts to hold that the means thus devised are not appropriate and necessary to protect the country at large against a species of inter tate * which has grown into disrepute and has become offensive to the entire people of the nation" (p. 358).

commerce

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This case definitely decides that Congress may exercise its power over interstate commerce for the protection of the morals and general welfare of the people. Lottery tickets, as specific articles of commerce, were harmless in themselves, and the legislation in question was not enacted for the benefit of interstate commerce itself, or tending to its advancement. The purpose, as appears from the foregoing quotation, was the suppression of lotteries. Corgress had no power to prohibit directly the raising of money by lotteries, but under the power to regulate commerce it could deny to such business the privilege of using the facilities of interstate commerce.

In the pure food and dri gs act (June 30, 1906, 24 Stat. L., 768) Congress prohibited the shipment in interstate commerce of adulterated or misbranded food and drugs. The constitutionality of such legislation as a regulation of commerce has been affirmed expressly by the lower courts and impliedly by the Supreme Court. (Hipolite Egg Co. v. U. S. [1911], 220 U. S. 45; U. S. v. Johnson [1911], 221 U. S., 488; U. S. v. Lexington Mill Co. [1914], 232 U. S. 399; Seven Cases v. U. S. Nos. 50 and 51, Jan. 10, 1916; U. S. v. Heinle Spec. Co. [1910], 175 Fed. 299: Shawnee Milling Co. v. Temple [1910], 179 Fed. 517; U. S. v. Sacks of Flour [1910], 180 Fed. 518; U. S. v. Seventy-four Cases [1910], 181 Fed. 629.)

In the case of McDermott v. Wisconsin, 228 U. S. 115 [1912] the court in declaring a State statute to be in conflict with the Federal pure food and drugs act, 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, to make such as are iniurious to the public health outlaws of such commerce, and to bar them from the facilities and privileges thereof."

The most recent illustration of the exercise of this police power of Congress which has been sustained by the Supreme Court is to be found in the act known as the white-s'ave traffic act (June 25, 1910, 36 Stat. L., 825, ch. 395), by which Congress made it a criminal offense to transport women in interstate commerce for immoral purposes. This act was held constitutional in Hoke v. United States [1913] (227 U. Š., 308) and in Wilson v. United States [1914] (232 U. S., 563). In the first case the court said:

"There is unquestionably a control in the States over the morals of their citizens, and, it may be admitted, it extends to making prostitution a crime. It is a control, however, which can be exercised only within the jurisdiction of the States, but there

is a domain which the States can not reach and over which Congress alone has power; and if such power be exerted to control what the States can not, it is an argument fornot against its legality. Its exertion does not encroach upon the jurisdiction of the States. We have cited examples; others may be adduced. The pure food and drugs act is a conspicuous instance. In all of the instances a clash of national legislation with the power of the States was urged, and in all rejected."

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"Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, as we have said, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material and moral. *Surely if the facility of interstate transportation can be taken away from the demoralization of lotteries, the debasement of obscene literature, the contagion of diseased cattle or persons, the impurity of food and drugs, the like facility can be taken away from the systematic enticement to and the enslavement in prostitution and debauchery of women (p. 322). The principle established by the cases is the simple one, when rid of confusing and distracting considerations, that Congress has power over transportation among the several States'; that the power is complete in itself, and that Congress, as an incident to it, may adopt not only means necessary but convenient to its exercise, and the means may have the quality of police regulation” (p. 323).

In the Wilson case it was said:

* * *

"As has already been decided, it (the act in question) has the quality of a police regulation, although enacted in the exercise of the power to regulate interstate commerce" (p. 567).

Although Congress can not directly prohibit prostitution within a State, it can contitutionally attempt to suppress prostitution by prohibiting the transportation of women in interstate commerce for that purpose.

The cases cited, it is submitted, definitely and necessarily establish the principle that Congress can regulate interstate commerce in the interest of public health, safety, mora's, or welfare; in other words, Congress may regulate interstate commerce in such manner as to prevent its being used to maintain or to further conditions which are detrimental to the general welfare of the community. Mr. Justice Hughes, in the recent case of Seven Cases v. United States (Nos. 50 and 51, October term, 1915, opini on January 10, 1916), referring to the decision in the white-slave case, said:

"The court concluded with the reassertion of the simple principle that Congress is not to be denied the exercise of its constitutional authority over interstate commerce, and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of police regulations."

IV. WHATEVER ITS INCIDENTAL EFFECTS, A CONGRESSIONAL REGULATION OF INTERSTATE COMMERCE IS NEVER A VIOLATION OF THE RESERVED RIGHTS OF THE STATES.

We have seen that Congress under the commerce clause possesses a broad, complete, and exclusive power to regulate interstate commerce; that this power to regulate includes power to prohibit the shipment or transportation of specified persons or property; and that in the exercise of its power to regulate interstate commerce Congress is not confined to measures which have for their purpose the good of interstate commerce and its instrumentalities, but may, in addition to such measures, regulate such commerce in the interest of promoting the public health, safety, morals, and welfare. From these established principles, it is apparent that Federal legislation prohibiting the shipment in interstate commerce of the products of child labor is within the jurisdiction over commerce transferred by the States to the Federal Government and vested in Congress by the Federal Constitution. There can be no doubt that such legislation regulates interstate commerce within the interpretation which the Supreme Court has uniformly given to the commerce clause. As a regulation of interstate commerce, it is unquestionably within the jurisdiction of the Federal control over commerce. It is idle to say that it interferes with the reserved powers of the States. It is true, the Federal Constitution in Article X of the amendments provides that " powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively or to the people.' This provision becomes important, however, only after it has been determined that the power to do that which is proposed has not been delegated to Congress. The very essence of the argument in favor of the constitutionality of Federal child labor-legislation is that it is included within the power of Congress to regulate commerce. If it is within the Congressional power, which by the Constitution was delegated to the exclusive control of Congress, then it can not fall within that realm of powers not delegated but

reserved to the States. In the consideration of objections of this sort it must be remembered that Congress is not making the employment of children illegal but is merely excluding from interstate commerce the products of child labor. The fact that the congressional regulation may prevent or restrict the employment of children in the manufacture of goods within the State does not affect the constitutionality of the congressional action. So long as it is a regulation of commerce and so long as it does not constitute a deprivation of property without due process, the power of Congress is supreme. Prof. Goodnow, now president of Johns Hopkins University, in his Social Reform and the Constitution (p. 91), says: "Men's minds are peculiarly twisted when they argue under a Constitution containing such a provision (the commerce clause) that a regulation purporting to be a regulation of interstate commerce is not such because it will necessarily have the incidental effect of regulating conditions of manufacture. The only reason why it will have this incidental effect is because in the economic conditions of the present day, manufacturing has ceased to be a State and has become an interstate matter."

In the Northern Securities case [1903] (193 U. S., 197, 342), the court asked: "Is there, then, any escape from the conclusion that, subject only to such restrictions, the power of Congress over interstate and international commerce, is as full and complete as is the power of any State over its domestic commerce?"

Only after we have determined the limit of the congressional power can we ascertain under the tenth amendment what other and additional power has been reserved either to the States or to the people. In determining the respective jurisdictions of Congress and the States over the subject of commerce, we are confined to the interpretation of the provisions of the Federal Constitution and in that instrument the only provisions which relate to the subject are the commerce clause and the provision of Article I, section 9, herein before quoted which forbade congressional prohibition prior to 1808 of the migration or importation of such persons as any State might see fit to admit. We are, therefore, practically confined to the commerce clause and its interpretation in the determination of the limits of the power of Congress and the extent of the power of the States over commerce. The fifth amendment has no application in the determination of the respective spheres of jurisdiction of the Nation and the State. The effect of that amendment in giving to individuals the right to protest against the exercise by Congress of any of its powers in such manner as to deprive the individual of life, liberty, or property without due process of law is considered in the following subdivisions of this brief. The point which we desire to make here is that that amendment throws no light on the question of the extent to which the congressional power over interstate commerce may be expanded into fields which the Federal Government has not heretofore occupied.

That Congress may reach conditions of manufacture and other acts which take place prior to transportation in interstate commerce is illustrated by the meat-inspection act (34 Stat. L., pp. 675 and 1260) and section 9 of the pure food and drugs act. The meat-inspection act provides that no meat may be shipped in inters ate commerce ulness labeled in accordance with the provisions of the act and that inspectors may enter the establishments for the purpose of such inspection. The constitutionality of this act has never been questioned. Section 9 of the pure food and drugs act provides that no dealer who ships in interstate commerce adulterated or misbranded articles shall be prosecuted if he can establish a guarantee from the manufacturer from whom he purchased the article that the same is not adulterated or misbranded, and that in such case the party making the guarantee shall be amenable to prosecutions. In United States v. Heinle Specialty Co. (175 Fed., 299 [1910]), a manufacturer was prosecuted for selling adulterated food with a guarantee to a dealer in the same State, the dealer having subsequently shipped the food in interstate commerce. It was contended on behalf of the manufacturer that his connection with the foodthat is, its manufacture and sale-was entirely an intrastate matter, and that the ninth section of the pure-food act was therefore unconstitutional in that it attempted to penalize acts wholly intrastate. The court refused to accept this argument, and in holding the section constitutional said:

"There is nothing in the act to indicate that there is an effort on the part of Congress to regulate the manufacturing, selling, or delivering of any articles of food within the States. The act is intended to prevent adulterated and misbranded foods from being sold in interstate commerce-nothing more; and in order that this may be accomplished it prohibits the party who makes or manufactures the food and who knows what it contains from falsely assuring an innocent purchaser that its quality and dress lawfully entitles him to sell the commodity in interstate commerce.'

In like manner the proposed child-labor legislation does not attempt to regulate either manufacture within a State or intrastate sales, but simply attempts to prevent the products of child labor from being sold in interstate commerce. As was said in the Hoke case (227 U. S., 308, 322):

"It may be that Congress could not prohibit the manufacture of the article in a State. It may be that Congress could not prohibit in all of its conditions its sale within a State; but Congress may prohibit its transportation between the States, and by that means defeat the motive and evils of its manufacture."

In the lottery and white slave cases it was argued that Congress was invading the jurisdiction of the States and was attempting to enact police regulations which under the Constitution were reserved to the States exclusively. The court, in the Hoke case, in holding that Congress was acting within its power, effectually disposed of this contention:

"The power of Congress under the commerce clause of the Constitution is the ultimate determining question. If the statute be a valid exercise of that power, how it may affect persons or States is not material to be considered. It is the supreme law of the land and persons and States are subject to it." (Hoke v. U. S. [1913], 227 U. S., 308, 320.)

Mr. Justice Hughes, in replying to this same contention, urged against the Sherley amendment to the pure food and drugs act (Seven Cases v. United States, Nos. 50 and 51, Jan. 10, 1916), said:

"So far as it is objected that this measure, though relating to articles transported in interstate commerce, is an encroachment upon the reserved powers of the States, the objection is not to be distinguished in substance from that which was overruled in sustaining the white slave act. There, after stating that if the facility of interstate transportation can be denied in the case of lotteries, obscene literature, diseased cattle and persons, and impure food and drugs, the like facility could be taken away from 'the systematic enticement of and the enslavement in prostitution and debauchery of women,' the court concluded with the reassertion of the simple principle that Congress is not to be denied the exercise of its constitutional authority over interstate commerce, and its power to adopt not only means necessary but convenient to its exercise, because these means may have the quality of po'ice regulations.”

These cases establish the right of Congress to exercise a complete power in the regulation of interstate commerce limited only by the due process clause. Argument to the effect that this power is also limited by an inherent right of the States is academic and untenable because wholly contrary to the precedents. The power is granted to Congress in plain and unmistakable terms, without limitation and with the express purpose of ameliorating unsatisfactory and injurious results occasioned by State control. In its exercise of this delegated power, Congress is absolutely unrestrained notwithstanding any indirect economic effects that its regulation may have upon the States. As long as it is regulating articles of interstate commerce and is not arbitrarily depriving persons of liberty or property by arbitrary regulation. Congress is authorized to exercise unlimited power. In the words of Mr. Justice Hughes (address before the New York State Bar Association, Jan. 14, 1916):

"Thus it is recognized that within its sphere, as defined by the Constitution, the Nation is supreme. The question is simply of the extent of the Federal power as granted; where there is authorized exercise of that power there is no reserved power to nullify it a principle obviously essential to the maintenance of national integrity, yet continually calling for new applications. Thus, regulations required in the exercise of the judgment committed to Congress for the protection of interstate commerce can not be made nugatory by the mere commingling of interstate and intrastate transactions. To illustrate, Congress has taken account of the practical exigencies of traffic, and of the interdependence of train movements, and has insisted that cars moving on railroads that are highways of interstate commerce shall be suitably equipped to the end that interstate traffic shall not be exposed to unnecessary danger. Again, Congress has asserted its authority to compel interstate carriers to give to interstate traffic reasonable rates without unjust discrimination; and the question whether interstate trade was left to be destroyed by hostile discrimination under the authority of local governments was decisively answered when the Constitution superseded the Articles of Confederation."

So far as the respective jurisdictions of State and nation over commerce are concerned, can there be any doubt under the congressional practice and the judicial decisions which have been discussed in the preceding sections of this brief that the proposed prohibition of shipments of products of child labor in interstate commerce is within the Federal jurisdiction? However much we may think that such power ought not to be within the Federal jurisdiction, whatever may be our individual opinions as to the desirable balance of powers between the Federal Government and the States in this matter, the simple fact is that the Federal Constitution as now worded gives Congress power to regulate interstate commerce and gives the whole of this power to Congress to the entire exclusion of the States. The question is not what the Constitution ought to provide, but what it does provide. The constitutionality of the

proposed legislation is not to be determined by our ideas as to how the commerce clause ought to be interpreted but by the congressional practice and judicial decisions which stand as precedents for its proper intervention. On this basis the proposed Federal child-labor bill is clearly within the Federal jurisdiction, and if it is unconstitutional it must be for reasons other than its interference with the powers of the States.

This brings us to the consideration of the most important problem involved in the constitutionality of the proposed legislation, namely, What is the extent of the right of the individual under the fifth amendment to say to the Federal Government: "You can not exercise even the powers expressly delegated to you in such manner as to deprive me of my property or liberty without due process of law?"

V. THE POWER OF CONGRESS TO PROHIBIT SHIPMENT OR TRANSPORTATION IN INTERSTATE COMMERCE IS LIMITED ONLY BY THE REQUIREMENT OF THE FIFTH AMENDMENT THAT SUCH PROHIBITION SHALL NOT CONSTITUTE A DEPRIVATION OF INDIVIDUAL RIGHTS WITHOUT DUE PROCESS OF LAW; I. E., THAT SUCH PROHIBITION SHALL NOT BE AN ARBITRARY OR UNREASONABLE INTERFERENCE WITH THE INDIVIDUAL'S RIGHTS OF PROPERTY OR LIBERTY OF CONTRACT.

The preceding sections of this brief point out that aside from the provision of article 1, section 9, respecting congressional prohibition of the migration of slaves and the commerce clause itself, there is nothing in the Federal Constitution which in any way limits or affects the congressional power over interstate commerce except the fifth article of the amendments which provides: "No person shall be 'deprived of life. liberty or property without due process of law.'" Tais amendment, it has also been pointed out, does not affect the issue which arises between the Nation and the State in regard to their respective jurisdictions over commerce, but is simply a guarantee to the individual of protection against the arbitrary action of the Federal Government. The fifth amendment protects the individual against Federal action depriving him of life. liberty or property without due process of law in pricisely the same way that the fourteenth amendinent protects him against State action depriving him of life, liberty or property without due process of law. It neither limits the Federal power in the interest of State power nor gives to the State any right to object to the extent or the manner in which the Federal Government exercises its powers. This amendment limits the Federal Government in the exercise of its express powers in precisely the same way that the fourteenth amendment limits the State government in the exercise of those inherent powers which are ordinarily described by the courts as the State's police power.

In the Lottery Case (188 U. S. 321, 362 [1903]). it was argued that the principle which would justify the exclusion of lottery tickets from interstate commerce would lead necessarily to the conclusion that any article of whatever kind or nature could be be excluded by Congress regardless of the motive or purpose of such exclusion. Replying to this contention, Mr. Justice Harlan said:

"It will be time enough to consider the constitutionality of such legislation when we must do so. The present case does not require the court to declare the full extent of the power that Congress may exercise in the regulation of commerce among the States. We may, however, repeat, in this connection, what the court has heretofore said, that the power of Congress, to regulate commerce among the States, although plenary, can not be deemed arbitrary, since it is subject to such limitations or restrictions as are prescribed by the Constitution. This power, therefore, may not be exercised so as to infringe rights secured or protected by that instrument."

Obviously, Mr. Justice Harlan's reference is to the fifth amendment for that is the only other clause of the Constitution which limits the congressional commerce power. Whether the fifth amendment limits the power of Congress to prohibit the transportation of particular property in interstate commerce depends on the question whether such prohibition amounts to a deprivation of property without due process. This brings up the questions: to what sphere has the individual a right to ship goods in interstate commerce and what amounts to deprivation without due process?

The exact meaning of this "due process' clause like similar clauses in the fourteenth amendment and in the State constitutions has never been definitely settled. Comparatively few cases have arisen which involve the meaning of this clause in the fifth amendment. Numerous cas s, however, have been decided involving the effect of the similar due process clause in the fourteenth amendment. These cases indicate that the due process limitation is intended to protect the individual from an arbitrary exercise of the powers of government, from legislation which interferes with private rights or interests to an extent that shocks existing conceptions of what is fundamentally fair and just under the circumstances to which it applies.