Federal Usurpation (1908)

Franklin Pierce (1853-19XX)

The Interstate Commerce Clause

“The difference between liberty and slavery may turn upon a little thing, but it is not a little difference.”


“An irreducible minimum of compulsion is the very essence of good government.”


“If the day should ever arrive (which God forbid!) when the people of the different parts of our country shall allow their local affairs to be administered by prefects sent from Washington and when the self-government of the States shall have been so far lost as that of the departments of France, or even so closely limited as that of the counties of England — on that day the political career of the American people will have been robbed of its most interesting and valuable features, and the usefulness of this nation will be lamentably impaired.”

John Fiske

IT is not my purpose to attempt to vindicate the rights of the states as against the national government, nor to vindicate the rights of the national government as against the states. There is no danger from the development of the commerce clause, if that development is within the lines of the constitutional grant. The exercise of Federal powers beyond this grant is always dangerous because such exercise is undefined and therefore unlimited. The exercise of Federal power within this grant is not only permissible, but it is commendable for the national government to stand upon its rights and enforce the powers given it. For the same reason it is not only permissible for the state to insist that its rights shall not be infringed, but it is commendable for the state so to do. The extension, in recent days, of the exercise of powers claimed to belong to the national government has resulted largely from the existence of evils by reason of the abuses of trusts and railways.

Those who have urged the extension of national powers over these abuses have uttered hardly anything worthy of a logical discussion of the question as to whether Congress had power under the Interstate Commerce Act to pass the recent enactments. They have started with the assumption that abuses existed, that the states could not correct them, and that therefore the national government ought to correct them whether it possessed the power or not. President Roosevelt, in his Massachusetts speech a few months ago, said: “State rights should be preserved when they mean the people’s rights but not when they mean the people’s wrongs; not, for instance, when they are invoked to prevent the abolition of child labor, or to break the force of laws which prohibit the importation of contract labor to this country; in short, not when they stand for wrong or oppression of any kind or for national weaknesses or impotence at home or abroad. . . . The states have shown that they have not the ability to curb the power of syndicated wealth, and, therefore, in the interests of the people, it must be done by national action.”

State rights, we submit, should be preserved whether they mean the people’s rights or not. National rights should be preserved whether they mean the people’s rights or not, because it is the written law. State rights should be preserved whether they have shown their ability to curb the power of syndicated wealth or not, because they are secured by the Constitution of the United States, and the national government and Congress and the President are directed by that instrument “not to deny or disparage” those rights. The United States Supreme Court has declared, again and again, “that the maintenance of the state governments is as much within the design and care of the Constitution as the preservation of the Union and the maintenance of the national government. The Constitution in all its provisions looks to an indestructible Union composed of indestructible states.”186 The President has taken an oath “to preserve, protect, and defend the Constitution of the United States,” and he is under as sacred an obligation to protect the reserved rights of the states as he is to vindicate the rights of the national government.

Before the national government was formed the states existed. It could not have come into existence but for the delegation of powers to it from the state governments, and it cannot exist without the existence of the states exercising all the vigor of their reserved rights. “I believe,” said Senator Edmunds, “that the safety of the Republic as a nation, one people, one hope, one destiny, depends more largely upon the preservation of what are called the rights of the states than upon any one thing.”187 I am contending not for state rights, as the reader has seen in the chapter on The Treaty Power and State Rights, but I am contending, with all conviction, that of all the men in this nation it most ill becomes the President of the United States to say “that state rights should be preserved when they mean the people’s rights,” when he is under a sworn obligation to preserve them because the Constitution demands that they should be preserved. Of all men the President, his advisers, and the officers of government are under the most solemn obligation to obey the Constitution. They are its sworn guardians, and for them of all men to renounce that obligation argues recreancy of duty and presents an evil example to all the people of the land.

The construction of the fundamental law on which the liberties of the people rest should never be made on grounds of supposed necessity or convenience. It is just such statements as we have quoted on the part of the President which have led the people to overlook and forgive usurpations of power, thinking that those usurpations are necessary for the public welfare. It is well to observe at the very start of the discussion that the states are not dependent for their rights to intercourse upon the Federal Constitution, but, in the language of Chief Justice Marshall, commerce “derives its source from those laws whose authority is acknowledged by civilized man throughout the world.”188 The states had this privilege unimpaired before the making of the Constitution, and they possess it today except so far as they have delegated it to the national government.

The Constitution “speaks not only in the same words, but with the same meaning and intent with which it spoke when it came from the hands of its framers, and was voted on and adopted by the people of the United States. Any other rule of construction would abrogate the judicial character of this court, and make it the mere reflex of the popular opinion or passion of the day.”189 Now if the Constitution speaks today with the meaning and intent of its makers, there is no way more effective in ascertaining that intent and meaning than to turn to the history of the time when it was framed to learn the conditions then existing, and the mischief which it sought to correct.190 The Constitution probably would not have come into existence, for many years at least, had it not been for the abuse by states of their right to control the importation of goods from foreign markets, and their abuse of the right to impose duties and imposts upon the importation of goods from other states of the Confederation.

Congress, before the treaty of peace with Great Britain and again after the making of that treaty, had sought the power from the states to impose duties upon foreign imports and to control interstate commerce. The right of the states to impose duties upon foreign commerce was of great value to some of them. Rhode Island had one of the best harbors of that day at Newport, and by imposing duties upon imported goods which she sold to Massachusetts, New Hampshire, and Connecticut her people were able to meet the expenses of the state government. The great harbor of New York, midway between Connecticut and New Jersey, enabled her to lay duties on foreign importations, from which she secured each year from £60,000 to £80,000. As a portion of these imports were taken by Connecticut and New Jersey, they were obliged in this way to support the government of New York. But this was not all. She compelled every sloop which came down from Hell Gate, and every market boat from New Jersey, to pay an entrance fee and obtain clearance from her customhouse, and the people of those states could not get a load of wood or a dozen eggs into New York without paying- duties on them. New Jersey retaliated by laying a tax of $1,800 per year on the lighthouse property off Sandy Hook, and the people of Connecticut, after submitting for some time, finally voted to suspend commercial intercourse with New York.

Pennsylvania imposed duties upon exports from New Jersey and Maryland. Virginia, by reason of her duties on both foreign and domestic imports, secured a considerable part of the revenues necessary for the payment of the cost of her government. The port of Charleston afforded an opportunity to the people of South Carolina to exact tribute from Georgia and North Carolina. As a result of all these duties upon imports from foreign countries, and imports from adjoining states, animosities had arisen between the states, and the need that the national government should have power to stop these obstructions to commerce was the very cause of the meeting at Annapolis and of the Constitutional Convention.

We have shown the circumstances leading to the framing of the Constitution, and the only apparent causes, existing at that time, for delegating to the national government the power to regulate commerce with foreign nations and among the several states. Now the question naturally arises was it the intent, in view of those causes, to give to the national government. any greater power than by regulation to prevent such obstructions from being imposed by the states upon interstate commerce. In regard to foreign commerce, the general government stands in the place of every state and represents it for every national purpose, yet when the states surrendered the right to control interstate commerce, having in view the abuses which had grown up, it was undoubtedly their intent to confer only the power to make commerce free between the states.

In the Lottery Case, Chief Justice Fuller says: “It is argued that the power to regulate commerce among the several states is the same as the power to regulate commerce with foreign nations and with the Indian tribes. But is its scope the same? As in effect before observed the power to regulate commerce with foreign nations and the power to regulate interstate commerce are to be taken diverso intuitu, for the latter was intended to secure equality and freedom in commercial intercourse as between the states, not to permit the creation of impediments to such intercourse; while the former clothed Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally speaking, to no implied or reserved power in the states.”l91 This was the opinion declared by the writers in The Federalist. It was the desire for freedom of commerce among the states which inspired this provision as to interstate commerce in the Constitution, and all the early cases so indicate.

Mr. Justice Field, in a case192 decided before the attempt to extend the meaning of the word “regulate” had been undertaken, said: “On examination of the cases in which they were rendered, it will be found that the legislation, adjudged to be invalid, imposed a tax upon some instrument or subject of commerce; or exacted a license fee from parties engaged in commercial pursuits; or created an impediment to the free navigation of some public water; or prescribed conditions, in accordance with which commerce in particular articles or between particular places was required to be conducted. In all these cases the legislation condemned operated directly upon commerce, either by way of tax upon its business, license in its pursuit in particular channels, or conditions for carrying it on. Thus, in the Passenger Cases, the law in New York and Massachusetts exacted a tax from the captains of vessels bringing passengers from foreign ports for every passenger landed. In Pennsylvania against Wheeling Bridge, the statute of Virginia authorized the erection of a bridge, which was held to obstruct the free navigation of the river Ohio. In the case of Sinnott against Davenport, the statute of Alabama required the owner of a steamer navigating the waters of a state to file, before the boat left the port of Mobile, in the office of the Probate Judge of Mobile County, a statement in writing, setting forth the name of the vessel and of the owner or owners, and his or their place of residence and interest in the vessel, and prescribed penalties for neglecting the requirement. It thus imposed conditions for carrying on the coasting trade in the waters of the state in addition to those prescribed by Congress. And in all the other cases where legislation of a state has been held to be null and void, for interfering with the commercial power of Congress, as in Brown against Maryland, State Tonnage Tax Cases, and Weldon against Missouri, the legislation created, in the way of a tax, license, or condition, a direct burden upon commerce, or in some way directly interfered with its freedom.” In fact it will be found that, within the conception of the fathers, the control which they gave over interstate commerce was intended to cover only coastwise shipping from the port of one state to the port of another state. Mr. Justice Bradley, in a case,193 said:

“No doubt commerce by water was primarily in the minds of those who adopted the Constitution, although both its language and spirit embrace commerce by land and water as well.”

But there is an abundance of evidence found in the acts of the Constitutional convention, and in the construction of the Constitution by the early Presidents, to show that it was not the intent of the framers of the Constitution, under the power to regulate interstate commerce, to clothe Congress with the power to prohibit commerce, or to own and operate canals and post roads. On September 14, 1787, a motion was made by Franklin in the Constitutional Convention that Congress be given power “to provide for cutting canals,” and the motion was defeated. Edmund Randolph, who presented to the Constitutional Convention the Virginia plan, while Attorney-General under the administration of Washington, gave his opinion to Washington, February 12, 1791, on the extent of the power in Congress to regulate commerce, saying that its extent was “little more than to establish the forms of commercial intercourse between the states, and to keep the prohibitions which the Constitution imposed upon that intercourse undiminished in their operation; that is, to prevent taxes on imports or exports, preference to one port over another by any regulation of commerce or revenue, and duties upon the entering or clearing of the vessels of one state in the ports of another.”194 Gallatin, in his report on internal improvements submitted April 6, 1808, said: “It is evident that the United States cannot under the Constitution open any road or canal without the consent of the state through which said road or canal must pass.”

When Madison was President, Congress passed a bill to construct national roads and canals, improve water courses, and make internal improvements, but Madison vetoed the bill. At a later date, when it was sought to set apart and pledge as a permanent fund for internal improvements the. bonus of the national bank, and the share of the United States in its dividends for the purpose of building roads, Madison vetoed the bill, saying: “The power to regulate commerce among the several states cannot include a power to construct roads and canals, and to improve the navigation of water courses, in order to facilitate, promote, and secure such a commerce, without a latitude of construction departing from the ordinary import of the terms, strengthened by the known inconveniences which doubtless led to the grant of this remedial power to Congress.” And he declared “that it was a dangerous assertion of national power . . . seeing that such a power is not expressly given in the Constitution, and believing that it cannot be deduced from any part of it without an inadmissible latitude of construction.”195

Monroe vetoed an act granting money for the preservation and repair of the Cumberland Road in May, 1822, on the ground that the government had no authority to devote money for such purposes.196 Jackson vetoed a bill authorizing the subscription of stocks in the Maysville-Washington-Paris and Lexington Turnpike Company.197 In the Civil War the United States Government granted Federal aid in the construction of the Central Pacific Railway, but this was done under the war power at a time when usurpations of power were common, and the road was needed to move troops and to control Indian outbreaks. The track was laid over government lands, and the language of the act expressed the necessity to “secure the safe and speedy transportation of the mails, troops, munitions of war and public stores of the United States.” In view of all these facts, can there be any doubt as to the lack of power in Congress to incorporate railways and build post roads?

But the times have changed and the customs have changed. Today government goes roaming at will upon a boundless sea without chart or compass, seeking power wherever it can find it, with little reference to the limitations of the Constitution. Senator Beveridge proposes a bill forbidding the transport, or acceptance for transport, of the products of any factory or mine in which children under fourteen years of age are employed or permitted to work. The President proposes a national license law giving him the right to grant a national license in his discretion to such corporations as he thinks are good enough to engage in interstate commerce. The Department of Commerce and Labor is created to investigate the organization, conduct, and management of any corporation or joint stock company engaged in commerce among the several states, to examine their books, and to make recommendations to Congress for legislation. A bill providing for the Federal registration of automobiles, and to establish a uniform system throughout the entire country as regards the requirements demanded of their owners, is before Congress. An interstate commerce board is created to fix the rates to be charged on nearly 220,000 miles of railway. Under the guise of controlling interstate commerce, the police power of the states as to the control of food,198 drugs, lotteries, importation of teas, and many other matters which heretofore have been entirely within the control of the states, is taken over by the national government.

In short, the national government, with few delegated powers, is going back to the old world views of the functions of government, and, through the interstate commerce act, is establishing a Federal police power which follows the footsteps of every citizen by licenses and restraining laws into every avenue of life, and practically supplants the police powers reserved to the states.

If the United States Supreme Court sustains all these powers, the national government will become omnipotent. An ambitious President, through his right to execute the laws, can perpetuate his power in spite of the people. But the President seeks powers still greater than these. He asks Congress to confer upon the Interstate Commerce Commission the right to discriminate between good and bad trusts; to allow certain railways to form combinations; and to punish those which it desires, and to exempt those which it thinks it wise to refrain from punishing.

Such powers as the President desires were never conferred upon the head of a constitutional government in all the history of mankind. In his message to Congress he says: “The actual working of our laws has shown that the effort to prohibit all combination, good or bad, is noxious where it is not ineffective. Combination of capital like combination of labor is a necessary element of our present industrial system. It is not possible completely to prevent it; and if it were possible, such complete prevention would do damage to the body politic. What we need is not vainly to try to prevent all combination, but to secure such rigorous and adequate control and supervision of the combinations as to prevent their injuring the public, or existing in such form as inevitably to threaten injury — for the mere fact that a combination has secured practically complete control of a necessary of life would under any circumstances show that such combination was to be presumed to be adverse to the public interest. It is unfortunate that our present laws should forbid all combinations, instead of sharply discriminating between those combinations which do good and those combinations which do evil. . . . No more scathing condemnation could be visited upon a law than is contained in the words of the Interstate Commerce Commission when, in commenting upon the fact that the numerous joint traffic associations do technically violate the law, they say: ‘The decision of the United States Supreme Court in the Trans-Missouri Case and the Joint Traffic Association Case has produced no practical effect upon the railway operations of the country. Such associations, in fact, exist now as they did before these decisions, and with the same general effect. In justice to all parties we ought probably to add that it is difficult to see how our interstate railways could be operated with due regard to the interest of the shipper and the railway without concerted action of the kind afforded through these associations.’ This means that the law, as construed by the Supreme Court, is such that the business of the country cannot be conducted without breaking it. I recommend that you give careful and early consideration to this subject; and if you find the opinion of the Interstate Commerce Commission justified, that you amend the law so as to obviate the evil disclosed.”

Now what is the inference from this statement? The message expresses the opinion that it should be permitted to railroads to make pooling agreements, providing these agreements were sanctioned by the Interstate Commerce Commission. The President renewed this suggestion in his Indianapolis speech, saying: “The law should be amended so that railroads may be permitted and encouraged to make traffic agreements in the interests of the general public as well as of the corporations making them.” Was any such proposition ever heard from the ruler of a constitutional government? Will the people quietly allow the government to take possession of such a boundless field of power as the right to discriminate between good and bad combinations? Such a power was never exercised in any but an autocratic government. It would be unsafe to vest such vast power in five men, however honest they might be. Allow a board of interstate commerce to discriminate in this manner, and you actually put every railway and all their wealth at the mercy of these men’s discretion, and you give to government such a terrific power as men have never exercised with moderation and justice.

The men upon the Interstate Commerce Commission are undoubtedly good and honest men. They would intend to exercise this unlimited power justly, but good intentions have never restrained a government that is otherwise unrestrained. Even though such power was now exercised for the public benefit, there would surely come a day when it would be wielded unjustly. The liberties of the people can never be protected if they intrust such vast and indefinite powers to any board. Years ago when the early railways were being built in Hungary and Austria, great corruption prevailed. Mr. Lowell, in his admirable work on “Governments in Continental Europe,” tells the story of the great Hungarian patriot, Francis Deak. “Deak once remarked in Parliament that as a boy he had a strong fancy for eating eels, until he discovered the foul kind of place in which they lived, when his feelings turned to disgust. In like manner, he said, his enthusiasm for railroads was checked when he learned the methods by which concessions for building- them were engineered through the Parliament. The honest old statesman never attended the debates on railroad bills thereafter; and if he chanced to enter the hall unawares when such a measure was under discussion, some of the members would cry, ‘Eels! Eels!’ and he instantly slipped out again.”l99

Let us take up one by one a few of the acts passed and others proposed under the interstate commerce provision of the Constitution. The act of Congress of June 11, 1906, is entitled, An act relating to the liability of common carriers in the District of Columbia and Territories and common carriers engaged in commerce between the States and between the States and foreign nations, to their employees. This act provides: “That every common carrier engaged in trade or commerce in the District of Columbia, or in any Territory of the United States, or between the several States, or between any Territory and another or between any territory or territories and any state or states, or the District of Columbia, or with foreign nations or between the District of Columbia and any state or states or foreign nations, shall be liable to any of its employees, or, in the case of his death to the personal representative for the benefit of his widow and children, if any; if none, then for his parents; if none, then for his next of kin dependent upon him, for all damages which may result from the negligence of any of its officers, agents, or employees, or by reason of any defect, or insufficiency due to its negligence in its cars, engines, appliances, machinery, track, roadbed, ways, or works.” It then provides in Section 2 that if the employee may have been guilty of contributory negligence, it shall not bar a recovery where his contributory negligence was slight, and that of the employer was gross in comparison, but the damages shall be diminished by the jury in proportion to the amount of negligence attributable to such employee. The action can be brought in the United States District or Circuit Court. It is to be observed that this act applies to all the employees of such common carriers, including those who render no service in the transportation of interstate commerce, as, for instance, engineers of local trains, section hands, mechanics in car and machine shops, clerks in offices, and coal heavers for stationary engines. It embraces all kinds of injuries, and proposes to abolish the fellow-servant doctrine in states where it is recognized. This act has been declared unconstitutional by two United States District Court Judges, and has been held constitutional by a Circuit Court Judge. In one of the cases decided by the district court, an appeal was taken to the United States Supreme Court and argued in the early part of the year 1907. The attorney-general of the United States, at the request of the President, intervened in behalf of the plaintiff, a private party, and the government, through him, was heard in the Supreme Court of the United States, a precedent for which action can hardly be found in our judicial history. The Court has not yet handed down a decision upon the appeal.200

The law of the state where an accident, because of negligence, occurs has always governed the cause of action for negligence between master and servant.201 The internal commerce of a state is just as much under its control as foreign and interstate commerce is under the control of the national government. The ordinary liabilities and duties of the citizens of a state are not affected in the slightest by the fact that they are persons engaged in foreign or interstate commerce. Again and again has it been held that “A carrier exercising his calling within a particular state, although engaged in the business of interstate commerce, is amenable, according to the law of the state, for acts of nonfeasance and misfeasance committed within its limits.”202 If he fail to deliver goods to the proper consignee, at the proper time and place, he is liable in an action for damages under the laws of the state in its courts; or if, by negligence in transportation, he inflicts an injury on the person of a passenger brought from another state, a right of action for the consequent damage is given by the local laws. It has been held again and again that rules prescribed by a state for the construction, management, and operation of railroads within its territory are strictly within the limits of local law, and are not per se regulations of commerce. Rules requiring certain efficiency in engineers, firemen, train hands, and telegraph operators, prescribed by the state, are legal notwithstanding such employees are employed in interstate commerce.203

But in this act, the employee, whether an engineer of a local train, a section hand, a mechanic in the car and machine shops, a clerk in the office, a coal heaver for a stationary engine, or any other employee of the railroad company who performs his entire labor within the state, is declared to be entitled to recover in the United States courts because of the right of Congress to regulate interstate commerce. His employment alone by a corporation engaged in interstate commerce, in the contemplation of the law, is sufficient to establish jurisdiction and to give judicial power to award him damages in the Federal courts.

If Congress can confer a cause of action upon an employee of a common carrier engaged in interstate commerce for the negligence of his employer, it can equally prescribe that his day’s work shall consist of four hours. It can regulate every relation between that common carrier and its employee. By and by, in the language of Congressman McCall, it will come “that the most common thing will be the necessity of an affidavit for a citizen to move his goods from state to state.” By and by, the very intention of shipping the products of the farm, or the shop, or of any productive industry by an interstate carrier, will give the regulation of such farm, or manufactory, or industry to Congress. In the language of Mr. Justice Lamar in Kid against Pearson,204 “The result would be that Congress would be invested, to the exclusion of the states, with the power to regulate, not only manufacturers, 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 grower of the South plant 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 was said by 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 regulation against conflicting and discriminating state legislation.”

Under this employers’ liability law. Congress has attempted to take from the cognizance of state courts their jurisdiction over a class of cases which they have exercised during the entire history of the country, upon the single ground that the man injured in the state is the employee of an interstate common carrier. All the transactions of men with common carriers through express companies, accidents upon trains, and the hundred other kinds of cases which might arise out of such relationships, by and by will be removed by a national statute from the state courts to the United States courts, simply because one of the parties is a common carrier of interstate commerce and the other party is dealing with him. In 1903 Mr. Justice Brewer said: “The Constitution is supposed to possess an elasticity which would make the manufacturers of India rubber choke with envy.” Indeed, if the constitutionality of this act is sustained, all the relations which men have with common carriers of interstate commerce will be subject to the control of Congress.205

Senator Albert J. Beveridge, of Indiana, whose sympathy witty the poor and the afflicted will not be doubted by anyone who has read his two volumes entitled The Russian Advance, in which he sets forth all the beauties of the Russian autocracy, introduced in the Fifty-ninth Congress a bill for the regulation of child labor, prohibiting any railway, engaged in interstate commerce, from carrying as freight any article upon which children less than fourteen years of age had performed labor. Robert Hunter tells us that not less than 80,000 children, most of them little girls, are employed at present in the textile mills of the country. He tells us that in the South there are now six times as many children at work as there were twenty years ago. Surely the attainment of no more worthy object can be conceived of than the protection of such children in our factories.

The question, however, is, shall the United States government attempt to remedy this evil through the interstate commerce clause, without the slightest authority for its action? This bill was rejected by Congress. It has the support, however, of the President. Mr. Bryan, in his debate with Senator Beveridge,206 says: “I have given to Senator Beveridge’s bill (referring to the proposed child’s labor bill) whatever support I could. It is right in principle, it is necessary, and it does not interfere with the reserved rights of the states.” So between Senator Beveridge and the President and Mr. Bryan, this bill will undoubtedly appear again before Congress. The Judiciary Committee of the House of Representatives said of this bill: “It is not extreme or ridiculous to say that it would be just as logical and correct to argue that Congress can regulate the age, color, sex, manner of dress, height, and size of employees, and fix their hours, as to contend that Congress can exercise jurisdiction over the subject of woman and child labor. . . . The agitation of such legislation produces an uneasy feeling among the people, and confuses the average mind as to the power of Congress and the power of the state.”

If Congress can regulate child labor in the factories, under the interstate commerce clause, because the owner of the factory contemplates selling his goods in another state, with just as much consistency it can regulate child labor upon the farm, in the wheat field, or in the cotton field, upon the ground that the farmer and the cotton grower intend to ship their crops to Liverpool. If it can regulate the age of children in factories because the product of those factories is carried by a common carrier to another state, why can it not regulate the ages of the farmer’s children working in the wheat fields? A portion of all the products of the farm and the factory is carried beyond the confines of the state by common carriers, and if this fact is to control, there is nothing to prevent the regulation of the whole industries of the country by Congress, because, forsooth, the products of those pursuits are to become the subjects of interstate commerce.

There is not an evil in all the vast field of production which Congress cannot control if this proposed law is permissible. Such a pretension would result in the supervision of the means of production of all the subjects of interstate and foreign commerce which may be borne upon railways or canals, from point to point within the several states, toward their ultimate destination in another state or in a foreign country. Such a pretension would put under the control of Congress every man, not only engaged in interstate commerce, but working upon the railways and the canals and the boats and ships which are used on the highways of commerce. Of course, the absurdity of such legislation is apparent to any intelligent man, but because it appeals to millions of philanthropic people, to millions who do not understand the powers of the national government. Congress is besought to pass such unconstitutional laws.

On April 2, 1907, Judge Edward H. Farrar, of New Orleans, communicated to the President a means of accomplishing all the results sought by the kind of legislation which we have been describing, through the power given to the national government in Paragraph 7, Section 8, Article 1, of the Constitution, which grants to Congress power to establish post offices and post roads. In this letter he assumes that because Congress has been given this power it can create a corporation to take over the whole railway system of the country, if necessary, and then lease those railways to the companies from which they have been taken. In this way Congress will be the owner of the property, using it for a public purpose, and can exercise the control necessary to accomplish all the reforms sought without an amendment to the Constitution.

A resolution empowering Congress to create a corporation was rejected in the Convention which framed the Constitution. The Pacific Railroads were chartered as territorial corporations, deriving their authority from the states within which they operated by state permission. Throughout the long history of the Cumberland Post Road the practice was uniform of securing the consent of the state to build the road. Mr. Prentice, in his admirable work on Federal Powers over Carriers and Corporations,207 cites an interesting instance of this in the Act of Congress of March 26, 1804, enacting: Section 4, “That whenever it shall be made to appear to the satisfaction of the Postmaster-General that any road established by this or any former act, as a post road, is obstructed by fences, gates, or bars, other than those lawfully used on turnpike roads, to collect their toll, and not kept in good repair with proper bridges and ferries, where the same may be necessary, it shall be the duty of the Postmaster-General to report the same to Congress, with such information as can be obtained, to enable Congress to establish some other road, instead of it, in the same main direction.” So we see that the Constitution, as construed at that time, did not even confer upon the Federal government authority to remove obstructions either from roads or streams through a state.”208 How greatly have our modern rulers magnified this power.

But let us see what construction one of the Justices of the United States Supreme Court has put upon the words “to establish post offices and post roads.” In the State of Pennsylvania against the Wheeling & Belmont Bridge Company,209 Mr. Justice McLean of the United States Supreme Court says: “The same power that would enable Congress to build a bridge over a navigable stream would authorize it to construct a railroad or turnpike road through the states of the Union, as it might deem expedient. This power may have been asserted in regard to post roads, but the settled opinion now seems to be that to establish post roads within the meaning of the Constitution is to designate them. In this sense Congress may establish post roads extending over bridges, but it can neither build them nor exercise any control over them, except the mere use for the conveyance of the mail on paying toll.” One who follows the history of the Cumberland Road, from 1806 until Madison and Monroe had finally destroyed the road because of the lack of power to expend the public moneys for such a purpose, can hardly doubt that it was the opinion in those days of both Congress and the President that the power did not exist in the national government to own and operate post roads through the several states. That is clearly seen by the fact that the consent of the states was procured, and that, when obstructed by a state, the government sought another road.

We are all well acquainted with what is known as the police powers of the state. The states originally possessed entire control of laws affecting public morals, public health, and all laws of a similar nature of so many descriptions as to be hardly capable of enumeration. It delegated none of these powers to the United States government. To put that fact beyond question the Ninth and Tenth Amendments to the Constitution, expressly reserving such powers, were passed. They provided that “The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people”; and that “The 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.” All police powers are vested in the state as securely as the ingenuity of man can devise language to vest a power in a state; or, to state the proposition more clearly, those powers were always in the states and were never delegated to the national government, and, with a distrust and jealousy of power which we do not seem to feel, the states were determined to put it beyond question that such powers were not delegated, and therefore insisted upon the adoption of these two amendments.

By an act of Congress passed in 1895 it was made a punishable offense tor any person to bring into the United States from abroad for the purpose of disposing of the same, or to deposit in, or carry by the mails of the United States, or by any express company, any paper, certificate, or instrument purporting to be a ticket, share, or interest in and depending upon the event of a lottery, and the crime was made punishable by imprisonment for not more than two years, or by a fine of not more than $2,000. In Dallas County, Texas, one Champion delivered to the Wells-Fargo Express Company a certain box or package containing lottery tickets to be carried to Fresno, Cal. He was indicted for this offense, and the question arose whether a lottery ticket was a subject of commerce, and whether its delivery to an express company, to be taken from the state of Texas to the state of California, was an offense under this act. The United States Supreme Court, Mr. Justice Harlan delivering the opinion, held that a lottery ticket was a subject of traffic among those who chose to sell or buy it, and that, therefore, the carriage of such a ticket by independent carriers from one state to another was interstate commerce; that, under its power to regulate commerce among the several states, Congress had plenary authority over such commerce and might prohibit the carriage of such tickets from state to state; and that this legislation was not inconsistent with any limitation or restriction imposed upon the powers granted to Congress.210 Four Justices of that court concurred with this decision and four dissented.

Congress, before this decision, had enacted a law forbidding the transport of intoxicating liquors from a place without a state which prohibited the sale of liquors to a place within that state. It has since passed what is known as the Pure Food Law, regulating interstate commerce in impure foods and impure drugs, and probably it will continue to enact similar laws. The probable result of this decision is that eventually the national government will assume control of all such police powers of the states, and will attempt, under the commerce clause, to legislate upon many subjects which heretofore have been controlled only by state legislation. It therefore becomes a serious question whether such legislation is constitutional.

The object of this kind of legislation is clearly to control the morals and the health of the people of the different states. May Congress use the power granted for one purpose for the accomplishment of an entirely different purpose? Because it has been given the right to regulate commerce, that is, to prescribe the rules by which commerce is to be governed, may it use that right to destroy the exclusive powers which belonged to the states before the Constitution, which were not delegated to the national government, and which amendments to the Constitution expressly reserved to the states? Does not the national government disparage such powers of the states when it attempts indirectly to take the place of the states in enforcing them? “Should Congress,” said Chief Justice Marshall, “under the pretext of exercising its powers pass laws for the accomplishment of objects not intrusted to the government, it would become the painful duty of this tribunal, should a case requiring such a decision come before it, to say that such an act was not the law of the land.”211

The words of the prevailing opinion in the Lottery Case show clearly that the decision rested upon the fact that it was pernicious in nature and opposed to good morals, yet it attempted to control that lottery through the power over commerce delegated to Congress for the sole purpose of keeping commerce unobstructed between the states. Mr. Chief Justice Fuller, with three of the Justices concurring in his dissenting opinion, said: “That the purpose of Congress in this enactment is the suppression of lotteries cannot be denied. That purpose is avowed in the title of the act, and it is its natural and reasonable effect, and by that its validity must be tested.” These dissenting judges held that the carriage of a lottery ticket from one state to another by an express company was not commercial intercourse; that the ticket simply purported to create contractual relations, and to furnish the means of creating a contract right, and came within the holding of numerous cases that insurance policies were not subjects of commerce.

Mr. Justice Fuller very pertinently inquires, “If a state should create a corporation to engage in the business of lotteries, could it enter another state which prohibited lotteries on the ground that lottery tickets were the subjects of commerce? On the other hand, could Congress compel a state to admit lottery matter within it contrary to its own laws? … It will not do to say — a suggestion which has heretofore been made in this case — that state laws have been found to be ineffective for the suppression of lotteries, and therefore Congress should interfere. The scope of the commerce clause of the Constitution cannot be enlarged because of present views of public interests.” The dissenting opinion concludes very properly that the object of the power granted to Congress to regulate interstate commerce was “to secure equality and freedom in commercial intercourse as between the states and not to permit the creation of impediments to such intercourse,” and that this attempt to regulate morals and take over the police powers of the state through an act of Congress was unconstitutional. “I regard this decision,” says the Chief Justice, “as inconsistent with the views of the framers of the Constitution, and of Marshall, its great ex-pounder. Our form of government may remain notwithstanding legislation or decision, but, as long ago observed, it is with governments, as with religions, the form may survive the substance of the faith.”

This lottery case is the most important, as bearing upon the relations between our state and national governments and the powers vested in each, which ever has been decided by the United States Supreme Court. If it is to remain the law, the idea of “the founders that the power vested in Congress was simply to protect commerce from acts of interference by state governments has been wholly destroyed. The right of the national government to pass a pure food law, or a prohibitive tax on oleomargarine, an act to prevent the importation of teas below a certain quality or flavor,212 and proposed laws for the regulation of insurance and hours of labor in various employments, are all dependent upon the soundness of this decision. Can it be that the power given Congress to regulate commerce between the states was intended to permit it to enter upon the reformation of society?213 That is precisely what was established in the Lottery Case. It is plainly stated in the law, the constitutionality of which was tested in the Lottery Case, that it was enacted to suppress lotteries. Mr. Justice Harlan, in his opinion sustaining the law, said:

“May not Congress, for the protection of the people of all the states and under the power to regulate interstate commerce, devise such means as will drive the lottery traffic out of commerce among the states?” The majority of the court held that it could.

A statute of Congress attempting to control the manufacture of illuminating fluids within a state, by making it punishable to sell such fluids inflammable at less than a certain specific temperature, was held, on an appeal from the conviction of one found guilty of violating the law at Detroit, as absolutely void because it was an invasion of the police powers of the states.214 In the act referred to, creating a board of tea examiners to report upon the quality or flavor of teas, and giving them power to reject all imported teas below a certain quality or flavor, we have the principle established which, carried to its ultimate end, means that it is within the power of Congress, under the interstate commerce clause, to prohibit the importation of any commodity under the pretense of guarding the public health.

But the Lottery Case established something still more important. This decision goes so far as to prohibit interstate commerce altogether wherever Congress may see fit. If it is good law, Congress may impose whatever terms it likes upon the privilege of carrying any commodity between one state and another, and if the terms are not complied with, may forbid it entirely. If such legislation is constitutional. Congress can acquire practical control over the operation of all production and manufacture, as well as over the distribution of the products of every industry in the United States. Already it has been proposed by the President that the executive be given the right to prohibit all producers who do not procure from the national government a license permitting them to engage in interstate commerce. Attorney-General Knox, on October 14, 1902, at Pittsburg, declared that “Congress may deny to a corporation, whose life it cannot reach, the privilege of engaging in interstate commerce except upon such terms as Congress may prescribe to protect that commerce from restraint.”

In the Lottery Case the counsel for the defendant urged upon the court that to uphold the constitutionality of the lottery act would lead necessarily to the conclusion that “Congress may arbitrarily exclude from commerce among the states any article, commodity, or thing of any kind or nature, or however useful or valuable, which it may choose, no matter with what motive — to declare that it may not be carried from one state to another.”215 And the court,. instead of denying that the decision led to such a result, answered the objection as follows: “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.”216 If the Lottery Case has not required the court to declare “the full extent of the power” of Congress, what limit is there upon the power of Congress? What is to hinder them from taking over the control of all the industries of the country under the power to regulate commerce?

It is not generally appreciated by the people that when Congress enacts a so-called regulation of commerce, affecting the domestic affairs of a state, that the law enacted by Congress controls exclusively the matters of the state which it affects. To illustrate, if the National Employers’ Liability Act is held to be constitutional, in at least twenty-five states in the Union, it will amount to a repeal of the state laws as regards all persons injured while employed by railways engaged in interstate commerce. According to the statistics of the Interstate Commerce Commission, on June 30, 1904, there were 1,296,122 persons employed by such railways. Not over 250,000 of these could be required to cross state lines in the performance of their duties. The Employers’ Liability Act would affect 46,037 general office clerks, 154,920 station employees, 46,272 machinists, 53,646 carpenters, 159,474 “other shop men,” 326,653 section foremen and trackmen, 46,262 switchmen, and 30,425 telegraph operators. So that practically this act would supplant the state laws in the case of several hundred thousand men. The next bill to be passed probably will be an eight-hour bill, controlling the hours of labor of these employees, and then a telegraphers’ bill, and then an arbitration bill. Step by step, the national government, at the rate it has been proceeding for the last ten years, finally will supervise all the industries of this country through the pretext of regulating interstate commerce. Ought not the people to have a clear understanding of the danger that will result from such action on the part of Congress?

If the commerce clause was construed as it was the intent of the fathers, to protect commerce from tariff acts and other acts of interference on the part of the states, great blessings would be conferred upon the people. Our national prosperity and wealth have come more from this provision of commerce, thus interpreted in the past, than from any other provision of the Constitution. Charles Sumner well said: “If there be any single fruit of our national unity, if there be any single element of the Union, if there be any single triumph of the Constitution which may be placed above all others, it is the freedom of commerce among the states, under which that free trade, which is the aspiration of philosophers, is assured to all citizens of the Union, as they circulate through our whole broad country, without hindrance from any state.”

But how has it been used? Whenever terrible abuses have arisen, like those of the insurance companies of New York City, the President has prescribed the remedy of national control. He has prescribed this control, although the United States Supreme Court, again and again, has declared that insurance, when carried on by a company in New York with individuals in other states, was not commerce, but the mere entering into a contract between a corporation of one state and a citizen of another state.217 Would the supervision of Congress over insurance be so much more efficient than supervision by the states as to justify the change? Congressman McCall, on Lincoln’s Birthday last, speaking in New York of the control by Congress of insurance, through its code, in the District of Columbia, said: “For instance, under this beneficent code there is an insurance company operating today which appropriates to its treasury or for expenses, ninety per cent of all the premiums collected.”

Congress controls the number of passengers which each boat engaged in river and coastwise trade may carry. It has been given authority to require these boats to keep on board certain life-preserving and life-saving instruments of a great variety. Has it performed its duties? Do not the death of thousands of our people in recent years tell the tale of its incompetence? Is the ordinary public servant more honest because he is in the employ of the national government rather than in the employ of a state government? Is there any justification for the national government’s attempts to take over the control of the affairs of the states on the ground that its servants are more faithful and honest than those of the states?

Bismarck, at the height of his power, was unable to procure the passage of a bill allowing a uniform administration of the railroads of Germany and the purchase by the government of certain lines. Mr. Lowell says:

“Bismarck had this project very much at heart, but the dread of increasing the power of the central government was so great among the smaller states, that he did not even venture to bring the matter before the Bundesrath and had to content himself with the purchase by Prussia of the roads within her own territory.”218

The President not only consented that Mr. Edgar Howard Farrar should give to the press the letter in which the latter had pointed out the way, through the power in Congress, to establish “post offices and post roads,” for the national government to acquire the railway systems of the country, but in his Memorial Day address at Indianapolis he approved the idea. We have already an interstate commerce commission, which the President may appoint in vacation at will, and which is removable by the President at his pleasure, with the power to control the rates of traffic on two hundred and twenty thousand miles of railway for all the goods of about ninety millions of people. Such a gigantic power as that never before was placed in the hands of five men. A President, ambitious to continue in his office by the wrongful use of this power, could procure a nomination in spite of the people. And still the President is not satisfied, but apparently seeks to control more directly the railways of the country. At the banquet of the Gridiron Club at Washington in 1907, the newspapers represented the President of 1917 as erasing the chalk boundaries between the states and leaving the central government supreme. Not only will he be able, if such powers are conferred upon him, to erase the lines which separate the states, but by reason of the vast executive powers in his hands, he will be able to make decrees which Congress will register as complacently as do the legislators their President’s decrees in Mexico and many South American Republics today. Let the people beware of placing such vast powers in the President’s hands. It matters not how honest the President and those who surround him are today. The time will come when such powers will be used for the destruction of the people’s liberties.


   186.   Texas v. White, 7 Wall., 725.
   187.   Speech in the Senate, March 27, 1890, Cong. Rec., vol. xxi, p. 2727.
   188.   9 Wheaton, 211.
   189.   S. Car. v. U. S., 199 U. S. 437 of opinion by Justice Brewer quoting from Dred Scott v. Sanford.
   190.   Rhode Island v. Mass., 12 Peters, 723; ex parte Williams, 114 U. S. 422; Maxwell v. Dow, 176 U. S. 602.
   191.   Lottery Case, 188 U. S. 373, 374.
   192.   Sherlock v. Alling, 93 U. S. 99.
   193.   The B. & O. Railroad Co. v. Md., 21 Wall., 456.
   194.   Prentice, Fed. Power over Carriers and Corporations, p. 102.
   195.   Elliot’s Deb., vol. iv, pp. 468-470.
   196.   Elliot’s Deb., vol. iv, p. 525.
   197.   Elliot’s Deb., vol. iv, pp. 525-527.
   198.   Crossman v. Lurman, 192 U. S. 189.
   199.   Lowell, vol. ii, p. 142.
   200.   On Jan. 6, 1908, this act was declared unconstitutional.
   201.   Thompson, Commentaries on Negligence, Sect. 3868, 3869
   202.   Smith v. State of Alabama, 124 U. S. 465, 477, 482,
   203.   Chicago, Milwaukee & St. Paul Ry. Co. v. Solan, 169 U. S. 133; Missouri, Kansas & Texas Ry. Co. v. Haber, 169 U. S. 613; Atchison, Topeka & Santa Fe Ry. Co. v. Matthews, 174 U. S. 96.
   204.   128 U. S. 21.
   205.   Field v. Barber Asphalt Co., 194 U. S. 618.
   206.   The Reader, April, 1907, p. 465.
   207.   Prentice, Fed. Powers over Carriers and Corporations, p. 150.
   208.   Fort Leavenworth R.R. Co. v. Lowe, 114 U. S. 525.
   209.   18 Howard, 442, of dissenting opinion.
   210.   Lottery Case, 188 U. S. 363, 364, of opinion.
   211.   McCulloch v. Maryland, 4 Wheaton , 423.
   212.   Buttfield v. Stranahan, 192 U. S. 470.
   213.   Minnesota v. Barber, 136 U. S. 313; New York v. Miles & Peters, 103; Passenger Cases, 7 How., 283; Yick Wo v. Hopkins, 118 U. S. 356.
   214.   United States v. Dewitt, 9 Wall., 41.
   215.   188 U. S. 362 of opinion by Harlan, J.
   216.   188 U. S. 362 of opinion.
   217.   Paul v. Virginia, 8 Wall., 168; Hooper v. California, 155 U. S. 648; N. Y. Life Ins. Co. v. Craven, 178 U. S. 389.
   218.   Lowell, Government and Parties in Cont. Europe, vol. ii, p. 197.