The Constitution of the United States of America: Analysis and Interpretation Part 42

[279] 2 Stat. 357 (1806).

[280] In an advisory opinion which it rendered for President Monroe at his request on the power of Congress to appropriate funds for public improvements, the Court answered that such appropriations might be properly made under the war and postal powers. _See_ E.F. Albertsworth, "Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643, 644-647 (1935). Monroe himself ultimately adopted the broadest view of the spending power, from which, however, he carefully excluded any element of regulatory or police power. _See_ his "Views of the President of the United States on the Subject of Internal Improvements," of May 4, 1822, 2 Richardson, Messages and Papers of the Presidents, 713-752.

[281] The Council of State Governments, Federal Grants-in-Aid, 6-14 (1949).

[282] 127 U.S. 1 (1888).

[283] 255 U.S. 180 (1921).

[284] 262 U.S. 447 (1923). _See also_ Alabama Power Co. _v._ Ickes, 302 U.S. 464 (1938).

[285] 160 U.S. 668 (1896).

[286] Ibid. 681.

[287] 297 U.S. 1 (1936). _See also_ Cleveland _v._ United States, 323 U.S. 329 (1945).

[288] 297 U.S. 1, 65, 66 (1936).

[289] Justice Stone, speaking for himself and two other Justices, dissented on the ground that Congress was ent.i.tled when spending the national revenues for the "general welfare" to see to it that the country got its money's worth thereof, and that the condemned provisions were "necessary and proper" to that end. United States _v._ Butler, 297 U.S. 1, 84-86 (1936).

[290] 301 U.S. 548 (1937).

[291] Ibid. 591.

[292] Ibid. 590.

[293] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[294] 301 U.S. 619 (1937).

[295] 301 U.S. 548, 589, 590 (1937).

[296] 330 U.S. 127 (1947).

[297] 54 Stat. 767 (1940).

[298] 330 U.S. 127, 143.

[299] United States _v._ Realty Co., 163 U.S. 427 (1896); Pope _v._ United States, 323 U.S. 1, 9 (1944).

[300] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[301] Cr. 358 (1805).

[302] Ibid. 396.

[303] 2 Madison, Notes on the Const.i.tutional Convention, 81 (Hunt's ed.

1908).

[304] Ibid. 181.

[305] Legal Tender Cases, 12 Wall. 457 (1871), overruling Hepburn _v._ Griswold, 8 Wall. 603 (1870).

[306] Perry _v._ United States, 294 U.S. 330, 351 (1935). _See also_ Lynch _v._ United States, 292 U.S. 571 (1934).

[307] Prentice and Egan, The Commerce Clause of the Federal Const.i.tution (1898) 14. The balance began inclining the other way with the enactment of the Interstate Commerce Act in 1887.

[308] 9 Wheat. 1, 189-192 (1824). _Cf._ Webster for the appellant: "Nothing was more complex than commerce; and in such an age as this, no words embraced a wider field than _commercial_ regulation. Almost all the business and intercourse of life may be connected, incidently, more or less, with commercial regulations." (ibid. 9-10); also Justice Johnson, in his concurring opinion: "Commerce, in its simplest signification, means an exchange of goods; but in the advancement of society, labor, transportation, intelligence, care, and various mediums of exchange, become commodities, and enter into commerce; the subject, the vehicle, the agent, and their various operations, become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects, would not possess power to regulate commerce." (ibid. 229-230). "It is all but impossible in our own age to sense fully its eighteenth-century meaning (i.e., the meaning of commerce). The Eighteenth Century did not separate by artificial lines aspects of a culture which are inseparable. It had no lexicon of legalisms extracted from the law reports in which judicial usage lies in a world apart from the ordinary affairs of life. Commerce was then more than we imply now by business or industry. It was a name for the economic order, the domain of political economy, the realm of a comprehensive public policy. It is a word which makes trades, activities and interests an instrument in the culture of a people. If trust was to be reposed in parchment, it was the only word which could catch up into a single comprehensive term all activities directly affecting the wealth of the nation," Walton H. Hamilton and Dougla.s.s Adair, The Power to Govern, 62-63 (New York: 1937).

[309] Ibid. 191.

[310] 9 Wheat. 1, 193 (1824).

[311] _See_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421 (1856); Mobile _v._ Kimball, 102 U.S. 691 (1881); Covington Bridge Co.

_v._ Kentucky, 154 U.S. 204 (1894); Kelley _v._ Rhoads, 188 U.S. 1 (1903); United States _v._ Hill, 248 U.S. 420 (1919); Edwards _v._ California, 314 U.S. 160 (1941).

[312] Pensacola Tel. Co. _v._ Western Union Tel. Co., 96 U.S. 1, 9 (1878); International Text Book Co. _v._ Pigg, 217 U.S. 91, 106-107 (1910); Western Union Tel. Co. _v._ Foster, 247 U.S. 105 (1918); Federal Radio Com. _v._ Nelson Bros., 289 U.S. 266 (1933).

[313] Swift & Co. _v._ United States, 196 U.S. 375, 398-399 (1905); Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282, 290-291 (1921); Stafford _v._ Wallace, 258 U.S. 495 (1922); Federal Trade Com. _v._ Pacific States Paper Trade a.s.soc., 273 U.S. 52, 64-65 (1927).

[314] Kidd _v._ Pearson, 128 U.S. 1 (1888); Oliver Iron Co. _v._ Lord, 262 U.S. 172 (1923).

[315] Paul _v._ Virginia, 8 Wall. 168 (1869). _See also_ New York L.

Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913); New York L. Ins.

Co. _v._ Cravens, 178 U.S. 389, 401 (1900); Fire a.s.soc. of Philadelphia _v._ New York, 119 U.S. 110 (1886); Bothwell _v._ Buckbee-Mears Co., 275 U.S. 274 (1927); Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S.

580 (1935).

[316] Federal Baseball Club _v._ National League, 259 U.S. 200 (1922).

[317] Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920).

[318] Williams _v._ Fears, 179 U.S. 270 (1900).

A contract entered into for the erection of a factory which was to be supervised and operated by the officers of a foreign corporation was held not a transaction of interstate commerce in the const.i.tutional sense merely because of the fact that the products of the factory are largely to be sold and shipped to other factories. Diamond Glue Co. _v._ United States Glue Co., 187 U.S. 611, 616 (1903). In Browning _v._ Waycross, 233 U.S. 16 (1914), it was held that the installation of lightning rods sold by a foreign corporation was not interstate commerce, although provided for in the contract of purchase. Similarly in General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), where a foreign corporation installed signals in Virginia, bringing in materials, supplies, and machinery from without the State, the Court held that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the State.

However, in an interstate contract for the sale of a complicated ice-making plant, where it was stipulated that the parts should be shipped into the purchaser's State and the plant there a.s.sembled and tested under the supervision of an expert to be sent by the seller, it was held that services of the expert did not const.i.tute the doing of a local business subjecting the seller to regulations of Texas concerning foreign corporations. York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918).

_See also_ Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148 (1925).

[319] a.s.sociated Press _v._ United States, 326 U.S. 1 (1945).

[320] American Medical a.s.sociation _v._ United States, 317 U.S. 519 (1943). _Cf._ United States _v._ Oregon State Medical Society, 343 U.S.

326 (1952).

[321] United States _v._ South-Eastern Underwriters a.s.soc, 322 U.S. 533 (1944). The interstate character of the insurance business as today organized and carried on is stressed, although its intrastate elements are not overlooked. The Court's business is to determine in each case whether "the competing * * * State and national interests * * * can be accommodated." Ibid. 541 and 548.

[322] Article I, -- 8, cl. 18.

[323] _See infra_ CONGRESSIONAL REGULATIONS OF PRODUCTION AND INDUSTRIAL RELATIONS.