The Constitution of the United States of America: Analysis and Interpretation Part 47

[484] Ibid. 329.

[485] 236 U.S. 216 (1915).

[486] Ibid. 222. _See also_ Robert B. Cushman, National Police Power Under the Commerce Clause, 3 Selected Essays on Const.i.tutional Law, 62-79.

[487] Groves _v._ Slaughter, 15 Pet. 449, 488-489 (1841).

The Issue

A little reflection will suffice to show that, as a matter of fact, any regulation at all of commerce implies some measure of power to prohibit it, since it is the very nature of regulation to lay down terms on which the activity regulated will be permitted and for noncompliance with which it will not be permitted. It is also evident that when occasion does arise for an outright prohibition of an activity, the power to enact the required prohibition ordinarily must belong to the body which is vested with authority to regulate it, which in this instance is Congress.

What, then, are the outstanding differences between such conditional prohibitions of commerce and that with which this resume deals? There seem to be three such differences. First, there is often a difference of _modus operandi_ between the statutes already considered and those about to be considered. The former impinge upon persons or agencies engaged in interstate commerce and their activities in connection therewith, whereas the latter look primarily to things, or the subject matter, of the trade or commerce prohibited. Secondly, there is a difference in purpose between the two categories of Congressional statutes. The purpose of the acts already treated is to lay down the conditions on which a designated branch of commerce among the States may be carried on; that of the acts now to be treated is to eliminate outright a designated branch of trade among the States. In other words, whereas the former acts were, in general, preservative of the commerce which they regulated because of its value to society, the latter regard the commerce which they reach as detrimental to society. The third, and most important difference from the point of view of Const.i.tutional Law, is the difference in relation of the two categories of acts respectively to the reserved powers of the States. The enactments of Congress already dealt with frequently intrude upon the ordinary field of jurisdiction of the States; but when they do so, it is because the acts or things which they thus bring under national control are regarded as "local incidents"

of interstate commerce itself. The relation of the enactments about to be considered to the reserved powers of the States is precisely the inverse of this. Their very purpose is to reach and control matters ordinarily governed by the State's police power, sometimes in order to make State policy more effective, sometimes in order to supply a corrective to it.

The Argument Denying Congress' Power To Prohibit Interstate Commerce

The princ.i.p.al argument against the const.i.tutionality of prohibitory Congressional legislation pivoted on the dual conception of the Federal System "The Federal Equilibrium". The Const.i.tution, the argument ran, clearly contemplates two spheres of governmental activity, that of the States, that of the United States; and while the latter government is generally supreme when the two collide with one another in the exercise of their respective powers, yet collision is not contemplated as the rule of life of the system, but the contrary. And since there are these two spheres, the line to be drawn between them, in order to secure harmony instead of collision, should recognize that the objects which the National Government was established to promote are relatively few, while those which the States were retained to advance comprise the princ.i.p.al objectives of government, the protection of the public health, safety, morals, and welfare. The power to promote these ends is, indeed, the very definition of the police power of the States--that power for which all other powers of the States exist. Seriously to impair the police power of the States, or to diminish their autonomy in its employment, would be, in fact to remove their reason for being, and so the reason for the Federal System itself.

So while the power of Congress to regulate commerce among the States and with foreign nations is in terms a single power, in the intention of the framers it comprised two very different powers. In the field of foreign relations, the National Government is completely sovereign, and the power to regulate commerce with foreign nations is but a branch of this sovereign power. The power to regulate commerce among the States is, on the other hand, not a sovereign power except for purposes of commercial advantage; in other respects it is confronted at every turn by the police power of the States, and hence requires to be defined in relation to the known and frequently reiterated objectives of that power.

Indeed, it was urged on the authority of Madison that the power to regulate commerce among the States was not bestowed upon the National Government "to be used for * * * positive purposes," but merely as "a negative and preventive provision against injustice among the States themselves." Madison IV, Letters and Other Writings, 15 (Philadelphia, 1865). Furthermore, it is a power which was designed for the _promotion_ and _advancement_ of commerce, not a power to strike commerce down in order to advance other purposes and programs. Grant that the power to regulate commerce among the States is the power to prohibit it at the discretion of Congress, and you at once endow Congress with power which it may use as a weapon to consolidate substantially all power in the hands of the National Government.

Thus, if Congress may prohibit _ad libitum_ the carrying on of interstate commerce, it may make deprivation of the right to engage in interstate commerce in any of its phases, even the right to move from one State to another, a sanction of ever-increasing efficacy for whatever standards of conduct it may choose to lay down in any field of human action; and since laws pa.s.sed by Congress in pursuance of its powers are generally supreme over conflicting State laws, these standards would supersede the conflicting standards imposed under the police powers of the States. Henceforth, in effect, the police power would exist solely by "leave and license" of Congress--as "the power to govern men and things" it would be at an end; and by the same token the Federal System, which is the outstanding feature of government under the Const.i.tution, would be at an end. In the First Employers' Liability Cases, (Howard _v._ Illinois Central R. Co., 207 U.S. 463 (1908)), the majority of the Court, speaking through Justice White, gave special attention to the Government's argument that though the act, in terms, governed the liability of "every" interstate carrier to "any" of its employees, whether engaged in interstate commerce or not when the liability fell, it was none the less const.i.tutional "because one who engaged in interstate commerce thereby submits all his business concerns to the regulating power of Congress." Justice White answered: "To state the proposition is to refute it. It a.s.sumes that because one engages in interstate commerce he thereby endows Congress with power not delegated to it by the Const.i.tution; in other words, with the right to legislate concerning matters of purely State concern. It rests upon the conception that the Const.i.tution destroyed that freedom of commerce which it was its purpose to preserve, since it treats the right to engage in interstate commerce as a privilege which cannot be availed of except upon such conditions as Congress may prescribe, even although the conditions would be otherwise beyond the power of Congress. It is apparent that if the contention were well founded it would extend the power of Congress to every conceivable subject, however inherently local, would obliterate all the limitations of power imposed by the Const.i.tution, and would destroy the authority of the States as to all conceivable matters which from the beginning have been, and must continue to be, under their control so long as the Const.i.tution endures." Ibid. 502-503. _See also_ Justice White's dissenting opinion, for himself, Chief Justice Fuller, and Justices Peckham and Holmes, in Northern Securities Co. _v._ United States, 193 U.S. 197, 396-397 (1904).

The Argument a.s.serting the Power

The thesis that the power to regulate commerce among the States comprises in general the power to prohibit it turns on the proposition stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power is vested "in Congress as absolutely as it would be in a single government, having in its Const.i.tution the same restrictions on the exercise of the power as are found in the Const.i.tution of the United States. The wisdom and discretion of Congress," Marshall continued, "their ident.i.ty with the people, and the influence which their const.i.tuents possess at elections, are, in this, as in many other instances, as that, for example, of declaring war, the sole restraints on which they have relied, to secure them from its abuse." 9 Wheat. 1, 196-197 (1824).

That the National Government is a government of limited powers, the advocates of this view conceded; but the powers which it uncontrovertibly possesses, they urged, may be utilized to promote all good causes, of which fact, it was a.s.serted, the Preamble of the Const.i.tution itself was proof. There the objectives of the Const.i.tution and so, presumably, of the Government created by it, are stated to be "more perfect union," "justice," "domestic tranquillity," "the common defense," "the general welfare," and "liberty." It was to forward these broad general purposes, then, that the commercial power, like its other powers, was bestowed upon the National Government. No doubt it was expected that the States, too, would use the powers still left them to a.s.sist the same purposes, which indeed are those of good government always. Yet that circ.u.mstance should not operate to withdraw the powers delegated to the National Government from the service of these same ends. The fact, in other words, that the power to govern commerce among the States was bestowed by the Const.i.tution on the National Government should not imply that it thereby became available merely for the purpose of fostering such commerce. It ought, on the contrary, to be applicable, as would be the equivalent power in England or France for instance, to aid and support all recognized objectives of government. _See_ Juilliard _v._ Greenman (Legal Tender Case), 110 U.S. 421, 447-448 (1884). As originally possessed by the several States, the power to regulate commerce with one another included the power to prohibit it at discretion; on what principle, then, it was asked, can it be contended that the power delegated to Congress is not as exhaustive and complete as the power it was designed to supersede? _See_ especially Justice Holmes' dissenting opinion in Hammer _v._ Dagenhart, 247 U.S. 251, 277-281 (1918).

And, the protagonists of this view continued, if the public health, safety, morals, and general welfare must depend solely upon the police powers of the States, they must in modern conditions, often fail of realization in this country. With goods flowing over State lines in ever-increasing quant.i.ties, and people in ever-increasing numbers, how was it possible to regard the States as watertight compartments? At least, then, when local legislative programs break down on account of the division of the country into States, it becomes the clear duty of Congress to adopt supplementary legislation to remedy the situation. In doing so, it is not undermining the Federal System; it is supporting it, by making it viable in modern conditions. The a.s.semblage of the States in one Union was never intended to put one State at the mercy of another. If, however, well considered programs of legislation are rendered abortive in a State in consequence of the flow of commerce into it from other States, then it becomes the duty--certainly it is within the discretion of Congress--which alone can govern commerce among the States, to supply the required relief. _See_ especially a.s.sistant Attorney General Maury's argument. In re Rapier, 143 U.S. 110, 127-129 (1892).

In this connection the advocates of this view cited discussion contemporaneous with Jefferson's Embargo, and under the embargo itself, as supporting their position. In the case of the Brigantine William the validity of the embargo was challenged before the United States District Court of Ma.s.sachusetts on the ground that the power to regulate commerce did not embrace the power to prohibit it. Judge Davis answered: "It will be admitted that partial prohibitions are authorized by this expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to have been committed? * * * The power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. * * *

the national right, or power, under the Const.i.tution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to be unquestionable. * * * The situation of the United States, in ordinary times, might render legislative interferences, relative to commerce, less necessary; but the capacity and power of managing and directing it, for the advancement of great national purposes, seems an important ingredient of sovereignty." And in confirmation of this argument Judge Davis cited the clause of -- 9 of article I of the Const.i.tution interdicting a prohibition of the slave trade till 1808. This clause clearly proves that those who framed the Const.i.tution perceived that "under the power of regulating commerce, Congress would be authorized to abridge it, in favour of the great principles of humanity and justice." Fed. Cas. No. 16,700, 614, 621 (1808).

The embargo, to be sure, operated on foreign commerce; but that there is any difference between Congress's power in relation to foreign and to interstate commerce the advocates of the view under consideration denied. The power to "regulate" is the power which belongs to Congress as to the one as well as to the other; and if this comprehends the power to prohibit in the one case, it must equally, by acknowledged principles of statutory construction, comprehend it in the other case as well. Nor in fact, the argument continued, does it make any difference, by approved principles of statutory construction, what purposes the framers of the Const.i.tution may have immediately in mind when they gave Congress power to regulate commerce among the States; the governing consideration is that they gave Congress the power, to be exercised in accordance with its judgment of what are proper occasions for its use. "The reasons which may have caused the framers of the Const.i.tution to repose the power to regulate interstate commerce in Congress do not, however, affect or limit the extent of the power itself." Justice Peckham for the Court in Addyston Pipe & Steel Co. _v._ United States, 175 U.S. 211, 228 (1899).

References

_See_ especially the arguments of counsel In re Rapier, 143 U.S. 110 (1892); Champion _v._ Ames (Lottery Case), 188 U.S. 321 (1903); Hammer _v._ Dagenhart, 247 U.S. 251 (1918); 3 Selected Essays on Const.i.tutional Law, 103, 138, 165, 295, 314, 336. Indeed, regulation of interstate commerce by Congress may take the form of a positive adoption by it of a regime of State regulation in the form of statutes (e.g., pilotage) or of administrative regulations in some degree (as in the Motor Carrier Act of 1935); or Congress may "regulate" through the device of divestment of a subject matter of its interstate character, thus indirectly causing State laws to apply, as was done by the Wilson Act of 1890 in respect to intoxicating liquors, or by the McCarran Act of 1945 following the United States _v._ South-Eastern Underwriters a.s.sociation, 322 U.S. 533 (1944), in respect to the insurance business. In a sense, Congress may delegate to the States its power to regulate interstate commerce.

[488] 23 Stat. 31.

[489] 32 Stat. 791.

[490] 33 Stat. 1264.

[491] 33 Stat. 1269.

[492] 37 Stat. 315.

[493] 39 Stat. 1165.

[494] Illinois Central R. Co. _v._ McKendree, 203 U.S. 514 (1906). _See also_ United States _v._ DeWitt, 9 Wall. 41 (1870). Of the nature of a quarantine act is the Federal Firearms Act of 1938 (52 Stat 1250).

[495] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903).

[496] 28 Stat 963.

[497] 143 U.S. 110 (1892).

[498] Champion _v._ Ames (The Lottery Case), 188 U.S. 321 (1903).

[499] 9 Wheat. 1, 227 (1824).

[500] 114 U.S. 622, 630 (1885).

[501] 26 Stat. 313 (1890); 37 Stat. 699 (1913), "The Webb-Kenyon Act."

[502] 31 Stat. 188 (1900).

[503] 45 Stat. 1084 (1929), "The Hawes-Cooper Act."

[504] 36 Stat. 825 (1910), "The Mann Act."

[505] 41 Stat. 324 (1919).

[506] 47 Stat. 326 (1932).

[507] 48 Stat. 794 (1934).

[508] 48 Stat. 979 (1934).

[509] 54 Stat. 686 (1940).

[510] Hoke _v._ United States, 227 U.S. 308, 322 (1913). In Caminetti _v._ United States, 242 U.S. 470 (1917) the act was held to apply to the case of transportation of a woman for immoral purposes, although no commercial motive was present; and in Cleveland _v._ United States, 329 U.S. 14 (1946), to the transportation of a plural wife by the member of a religious sect a tenet of which is polygamy.

[511] United States _v._ Hill, 248 U.S. 420, 425 (1919).

[512] 247 U.S. 251 (1918).

[513] 39 Stat. 675 (1916).

[514] 247 U.S. at 275.

[515] Ibid. 271-272.

[516] 267 U.S. 432 (1925).