« I flfftrj \m Uinfium iff) mMffi ffi H W® mmm B ttffl ffiflKir bWHHbB Class T K37/ : 1 Book ;..-■ PRESENTED BV STUDIES IN THE POLICE POWER OF THE NATIONAL GOVERNMENT by ROBERT EUGENE CUSHMAN Associate Professor of Political Science, University of Minnesota. Reprinted from the Minnesota Law Review, Vol. Ill, Nos. 5, 6, and 7, April, May and June, 1919, Vol. IV, Nos. 4 and 6, March and May, 1920. THE NATIONAL POLICE POWER UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION To point out to the man in the street that while the Congress of the United States may pass laws to suppress the white slave traffic or the sale of adulterated food, it has no power to prohibit child-labor or to regulate marriage and divorce, does not add much to his understanding of American constitutional law. Too often it merely decreases his respect for the constitution and the courts which construe it. His feeling is one of exasperation that any truly national need should exist, any national problem should cry for solution, and the national legislature should lack the authority to deal with it. The point of view of the layman emphasizes in striking fash- ion the completeness with which, as a people, we have been won over more or less unconsciously to the belief that Congress has, or ought to have, authority to pass any salutary law in the interest of the national welfare. Instead of surprise that Congress should have the temerity to penetrate into a new field of legisla- tion, there is impatience to find that there is any such field into which Congress may not penetrate. It is the purpose of this article to restate some fundamental doctrines of our constitutional law and review some of the steps in our constitutional history with* a view to making clear the somewhat precarious trial and error process by which Congress has come gradually to legislate in affairs over which it has been supposed to have no jurisdiction 290 MINNESOTA LAW REVIEW — to assume responsibility for the safety, health, morals, good order, and general welfare of the nation, and thus to exercise what may be called a national police power. It seems clear that it is entirely proper to use the term "na- tional police power." To borrow a definition of the police power from the authority perhaps most competent to lend, 1 it is that, power of government which "aims directly to secure" and promote the public welfare" by subjecting to restraint or compulsion the members of the community. It is the power by which the gov- ernment abridges the freedom of action or the free use of prop- erty of the individual in order that the welfare of the state or nation may not be jeopardized. It is obvious, then, that when Congress places a prohibitive tax upon poisonous matches, ex- cludes obscene literature from the mails, or enacts an employers' liability law, it is exercising police power. What is- the source and nature of this police power which Congress enjoys and what are the limitations upon it? Theory of the National Police Power *• Principle of Enumerated Powers of Congress To understand clearly the nature of the national police power it is necessary to bear in mind one of the a b c's of our constitu- tional law, namely, that Congress enjoys those powers of legis- lation, and only those, which are positively given to it by the constitution. Unlike the states, which enjoy all powers which have not been taken, away from them, it has only the powers which are delegated to it. The subjects over which it may exercise con- trol are carefully enumerated. It would be useless to argue a point so firmly established. Nothing is clearer than that the purpose of the Convention of 1787 was to confer upon the new Congress a certain group of powers definitely delimited and to leave the other powers of government in the hands of the states. Hamilton's famous argument in the Federalist 2 against the adop- tion of a bill of rights to the new constitution urged, it will be recalled, that to add to the constitution a list of things which Congress might not do, when Congress had never been given power by the constitution to do them, savored of the dangerous 1 Freund, Police Power, Sec. 3. 2 Federalist, No. 84. Gift AUia 4 1W4) THE NATIONAL POLICE POWER 291 doctrine that Congress enjoyed powers not positively granted to it provided they had not been specifically denied to it. Any such danger was, of course, obviated by the Tenth Amendment de- claring 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" ; and since that time commentators and courts have joined with complete unanimity in making the doctrine that the powers of Congress are enumerated powers a constitutional axiom." The effect of this doctrine of enumerated powers upon the right of Congress to exercise a national police power is perfectly plain. The enumeration of congressional powers in the constitu- tion does not include any general grant of authority to pass laws for the protection of the health, morals, or general welfare of the nation. 4 It follows, then, that if Congress is to exercise a police power at all it must do so by a process something akin to indirec- tion ; that is. by using the powers which are definitely confided to it, for the purposes of the police power. If it would enter upon an ambitious program to protect public morals or safety or health or to promote good order, it must cloak its good works under its authority to tax, or to regulate commerce, or to control the mails, or the like, and say, "By this authority we pass this law in the interest of the public welfare." In short, Congress exercises a generous police power not because that power is placed directly in its hands but because it has the power to regulate commerce, to lay taxes, and to control the mails, and uses that authority for the broad purposes of the general welfare. 5 3 "The constitution was, from its very origin, contemplated to be the frame of a national government, of special and enumerated powers. This is apparent, as will presently be seen from the history of the proceedings of the convention which framed it; and it has formed the admitted basis of all legislative and judicial reasoning upon it ever since it was put in operation, by all who have been its open friends and advocates as well as bv all who have been its enemies and opponents." Storv, Constitution, 5th ed., I, Sec. 909. 4 Sec. 8. Art. I, of the constitution reads : "The Congress shall have power to lay and collect Taxes, Duties. Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States ; . . ." It has been generally agreed, however, that this clause does not confer a general police power upon Congress, but merely the power of levying taxes, etc., for the purpose of paying the debts and providing for the common defense and general welfare of the country. For elaborate review of the authorities on this point, see Watson, Con- stitution, I. p. 390 et seq. 5 This point is further emphasized and the practice severely criticized in v illuminating article by Judge Charles M. Hough, Covert Legislation 292 MINNESOTA LAW REVIEW That Congress can exercise police power only in so far as it is possible to utilize one of its enumerated powers for that pur- pose is not due to accident or inadvertence. The limited nature of that police power has been emphasized and re-emphasized by the unsuccessful efforts of those who from 1787 to the present time have sought to secure its enlargement and invest Congress with a power adequate to deal with any truly national problem. The earliest of these efforts was made in the Convention of 1787. Four resolutions were introduced during the sessions of that body, varying somewhat in phraseology but similar in purpose. 6 That purpose, to quote the language of the one introduced by Mr. Bedford, was to confer upon Congress the power "to legislate in all cases for the general interests of the Union, and also in those to which the States are severally incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation." In defeating these resolutions the Convention passed squarely upon the question whether or not Congress should enjoy a general police power for the protection of the national welfare apart from its specifically enumerated powers and decided that it should not. There is a difference of opinion among historians and com- mentators as to whether James Wilson actually held to the doctrine that Congress possessed any general unenumerated pow- ers. Certain utterances of his have, however, been quoted to prove that he held this view ; and more than a century later President Roosevelt used him as an authority in support of his famous doctrine of "New Nationalism." In 1785 Wilson re- ferred to the powers of Congress under the Articles of Confed- eration in the following language : "Though the United States in congress assembled derive from the particular States no power, jurisdiction, or right which is not expressly delegated by the con- federation, it does not thence follow that the United States in congress have no other powers, jurisdiction, or rights, than those delegated by the particular states. The United States have gen- eral rights, general powers, and general obligations, not derived and the Constitution, (1917) 30 Harv. Law Rev. 801. See also an article by Paul Fuller, Is There a Federal Police Power? (1904) 4 Col. Law Rev. 563. 6 Farrand, Records of the Federal Convention of 1787, I, p. 229; II, pp. 25, 26, 367. The first of these was the sixth resolution in the report of the Committee of the Whole ; the others were introduced by Sherman, Bedford, and Rutledge, respectively. THE NATIONAL POLICE POWER 293 from any particular state, nor from all the particular states, taken separately; but resulting from the union of the whole. . . . To many purposes the United States are to be considered as one undivided, independent nation; and as possessed of all the rights, and powers, and properties by the law of nations incident to such. Whenever an object occurs, to the direction of which no particular state is competent, the management of it must, of \ necessity, belong to the United States in congress assembled. There are many objects of this extended nature." 7 If such a construction could be placed upon the powers of the congress of the Confederation, powers which were not only delegated but expressly delegated, then surely the same construction could be placed, a fortiori, upon the powers of Congress under the present constitution, which omits the word "expressly." When the fed- eral constitution was 'before the Pennsylvania convention for ratification Wilson, who was a member of that body, made a speech in which he declared that the framers of the constitution in drawing a line between the powers of the national government and those of the states had acted upon the principle that "What- ever object of government is confined in its operation and effect within the bounds of a particular state, should be considered as belonging to the government of that state; whatever object of government extends in its operations or effects beyond the bounds of a particular state, should be considered as belonging to the government of the United States." 8 Although this statement might lend support to the view that Congress could deal with national problems because they were national even in the absence of a positive grant of authority to do so, it seems hardly neces- sary to regard it in any other light than as a simple statement of the object which the Convention tried to attain in the matter of distributing powers between the nation and the states. Without speculating further on the actual significance of the statements quoted, it may be noted that no trace is found of the so-called "Wilson Doctrine" in Wilson's judicial utterances, nor is there other evidence that he ever became an active exponent of that principle. 9 7 Considerations on the Power to Incorporate the Bank of North America, Wilson's Works, Andrews' ed., I, pp. 557, 558. 8 Ibid., p. 533. 9 In support of the so-called Wilson doctrine, see : L. H. Alexander, James Wilson, Patriot, and the Wilson Doctrine, North Am. Rev. vol. 183, p. 971 ; Governor Samuel W. Pennypacker, Address at Wilson Memorial 294 MINNESOTA LAW REVIEW It remained for President Roosevelt to discover or at least to label the neutral or "twilight" zone in our constitutional system— a zone lying between the jurisdictions of the state and the nation, to which lawbreakers of great wealth might repair and be free from punishment or restraint. Large corporations had come to be beyond the reach of the state because they had grown to national dimensions ; they were outside the effective control of Congress because the constitution does not confer upon Congress a positive grant of authority to deal with them directly. It was to meet this situation that President Roose- velt urged his doctrine of "New Nationalism," first as a prin- ciple of constitutional interpretation, and, failing in that, as a constitutional amendment. That doctrine may be best stated in his own words : "It should be made clear that there are neither vacancies nor interferences between the limits of state and national jurisdictions, and that both jurisdictions together compose only one uniform and comprehensive system of gov- ernment and laws ; that is, whenever the states cannot act, because the need to be met is not one merely of a single locality, then the national government, representing all the people, should have complete power to act." 10 In public addresses delivered after 1906 President Roosevelt reverted again and again to this subject, urging always that the federal govern- ment should be competent to deal with every truly national problem and expressing his impatience at "the impotence which springs from overdivision of government powers, the impo- tence which makes it possible for local selfishness or for legal cunning, hired by wealthy special interests, to bring national activities to a deadlock." 11 / C. But if this "New Nationalism" is ever to be incorporated into our constitutional law it will need to be by a constitutional amendment. In the case of Kansas v. Colorado, decided in 1907, 12 the Supreme Court was invited to adopt that doctrine in construing the powers of Congress, but it declined in no Services, (1906) 55 Am. Law Reg. p. 13; President Roosevelt, speech at dedication of Pennsylvania state capitol, quoted and discussed in Willough- by, Constitution, I, p. 48. The doctrine is criticized by Edward Lindsay in Wilson Versus the "Wilson Doctrine," 44 Am. Law Rev. p. 641. 10 From his speech at Ossawatomie, Kansas, August 31, 1910. 11 Idem. The doctrine of "New Nationalism" is discussed and criti- cized in Willoughby, Constitution, I, pp. 48-66. " (1907) 206 U. S. 46, 51 L. Ed. 956, 27 S. C. R. 655. THE NATIONAL POLICE POWER 295 uncertain language to do so. It was urged upon the court in that case that Congress had a paramount right to control the whole system of reclaiming arid lands in a state, whether owned by the United States or not, on the theory that "all powers which are national in scope" must be found vested in the Con- gress of the United States." Such a view the court held to be in direct conflict with the general established doctrine that the national government is a government of enumerated powers and also with the specific provisions of the Tenth Amendment. "This amendment," declared the court, "which was seemingly adopted with prescience of just such contention as the present, disclosed the widespread fear that the national government might, under the pressure of a supposed_general welfare, attempt to exercise powers which had not been granted. With equal de- termination the f ramers intended that no such assumption should ever find justification in the organic act, and that if, in the future, further powers seemed necessary, they should be granted by the people in the manner they had provided for amending that act. It reads : '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.' The argument of counsel ignores the principal factor in this article, to wit, 'the people.' Its principal purpose was not the distribution of power between the United States and the states, but a reservation to the people of all powers not granted." It would seem from this opinion that President Roosevelt's "twilight zone" is firmly intrenched in our constitutional system and that those who hope to develop a na- tional police power by interpretation or by any method but amendment are doomed to disappointment. 13 Principle of Implied Pozvers It is perfectly certain that under the doctrine that Congress has no powers which are not enumerated in the constitution it would have been quite impossible to develop a national police 13 This doctrine of a general, inherent, unennmerated power of Con- gress is not to be confused with what Story termed "resulting powers," or those deduced from several or all of the enumerated powers of Congress. See Commentaries, 5th ed., II, Sec. 1256. Among the examples of such "resulting powers" are the power to exercise the right of eminent domain. Kohl v. United States, (1875) 91 U. S. 36,7, 23 L. Ed. 449; the power to issue legal tender notes, Juilliard v. Greenman, (1884) 110 U. S. 421, 28 L. Ed. 204, 4 S. C. R. 122; and the power to exclude aliens, Fong Yue Ting v. United States, (1893) 149 U. S. 698. 37 L. Ed. 905, 13 S. C. R. 1016. See Willoughby, Constitution, I, Sees. 37, 38. 296 MINNESOTA LAW REVIEW power were it not for the fact that the scope of congressional authority was vastly increased, and the possibility of ever-multi- plying extensions of power opened up, by the establishment upon a firm foundation of the so-called doctrine of implied powers. It will be recalled that under the Articles of Confederation "Each State retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this confed- eration expressly delegated to the United States in Congress as- sembled." 14 When the Tenth Amendment was being debated by Congress in 1789 a motion was made to insert there also the word "expressly" before the word "delegated." This motion, however, was rejected. 15 The bitter controversy which raged between the Federalists and the anti-Federalists as to whether or not Congress might exercise powers which were not expressly conferred was not settled finally and authoritatively until Marshall's famous opinion in 1819 in the case of McCulloch v. Maryland. 16 It was in that opinion that Marshall gave his classic statement of the doctrine of implied powers : "Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but are consistent with the letter and spirit of the Constitution, are constitutional." Thus the ghost of strict con- struction was laid forever, at least so far as the Supreme Court was concerned ; and in 1884 Mr. Justice Miller, by way of giving it a suitable epitaph, took occasion to allude to "the old argument, often heard, often repeated, and in this court never assented to, that when a question of the power of Congress arises the advocate of the power must be able to place his finger on the words which expressly grant it." 17 Thus it will be seen that while the doctrine of enumerated powers imposes upon Congress the necessity of finding among its delegated powers what has been aptly termed "a definite consti- tutional peg" upon which to hang every exercise of the national police power, the doctrine of implied powers, or the liberal con- struction of congressional authority, has made it possible to hang upon those "pegs" an enormous amount of salutary legislation in the interest of the national health, safety, and well being. The 14 Art. II. Italics are the author's. 15 Annals of Congress, I, p. 768. « (1819) 4 Wheat. (U.S.) 316. « Ex parte Yarbrough. (1884) 110 U. S. 651, 658, 28 L. Ed. 274, 4 S. C R. 152. THE NATIONAL POLICE POWER 297 "pegs" themselves are few in number, the only important ones being the power to regulate commerce, the power to tax, and the power to establish and run the postal system ; but the police legis- lation which they have been made to support deals with anything from the white slave traffic to speculation in cotton. Limitations on the National Police Power In the exercise of its police power Congress is subject to three definite constitutional limitations. The first of these limitations has already been outlined: Congress must, in passing police legis- lation, use an enumerated power ; in other words, there must always be a constitutional peg. This would seem on first thought to be entirely obvious. Yet occasionally Congress has tried, always unsuccessfully, to do without the peg. In 1867 Congress forbade the sale of illuminating oils which were below a certain fire test. 18 The law was declared invalid because it was entirely unrelated to any of the delegated powers 19 of Congress. It was not a regulation of interstate commerce; it was not a tax; and Congress did not pretend that it was. For the same reason the act of 1876 punishing the counterfeiting of trademarks and the sale of counterfeit trademark goods 20 was declared unconstitu- tional. 21 The excerpt quoted above 22 from the opinion of the court in Kansas v. Colorado emphasizes the same point. In all of these cases Congress had tried to pass police regulations with- out finding a constitutional peg on which to hang them. The second limitation requires that a real relevancy exist be- tween the police regulation and the peg upon which it is hung. Assuming that Congress in exercising its police power uses one of its delegated powers and labels its act accordingly as a tax law, a regulation of commerce, or the like, the law must then pass the test : is there a reasonable enough connection between the law Congress has passed and the constitutional grant of power on which Congress has relied in passing it to warrant its being regarded as a regulation of commerce, or the mails, or the like? If our courts is Act of March 2, 1867, Chap. 169 Sec. 29, 14 Stat, at L. 484. is United States v. De Witt, (1870) 9 Wall. (UiS.) 41. The title of the act was "An Act to amend existing Laws relating to Internal Revenue, and for other Purposes." The section involved here must have been, one of those passed "for other purposes," for it made no reference to any tax. 20 Act of August 14, 1876, 19 Stat, at L. 141. 2i Trade-Mark Cases, (1879) 100 U. S. 82, 25 L. Ed. 550. 22 Supra, p. 295. 298 MINNESOTA LAW REVIEW in determining the validity of legislation took account of the motives of law-makers, these motives would in the main tend to become the test of the validity of the law; but since the courts ignore those motives and take legislation at its face value, the relevancy of the law to its label becomes the test. In other words, it is proper enough for Congress to use its power over interstate commerce as a means of protecting the national health or morals ; but Congress must not get so absorbed in the work of protecting the national health or morals that it forgets that it is, after all, supposed to be regulating interstate commerce. When this test was applied to the law passed in 1907 by which Congress made it a felony for any person to harbor an alien prostitute within three years after her entrance into this country, 23 the court found that while the authority of Congress to regulate immigration was un- doubted and while the law of which the provision in question was a part was entitled "An Act to Regulate the Immigration of Aliens into the United States," nevertheless that provision did not as a matter of fact regulate immigration. 24 "The validity of the provi- sion in question," declared the court, "should be determined from its general effect upon the importation and exclusion of aliens. But it is sufficient to say that the act charged has no significance in either direction." The provision was invalid because it did not bear a sufficiently close relation to anything over which the consti- tution gives Congress authority to act. In a case which will be discussed at a later point 25 it was held that the provision of the Erdman Act forbidding interstate carriers to discharge employees because of membership in labor organizations was not a legiti- mate exercise of congressional authority because there was no connection between interstate commerce and membership in a labor union. 26 In the other cases which will be considered in the course of this article it will be seen that no law which Congress has passed in the exercise of a national police power has been upheld unless the court has, after careful scrutiny of this point, 2 3 Act of February 20, 1907, 34 Stat, at L. 898. 2 4 Keller v. United States, (1909) 213 U. S. 138, 53 L. Ed. 737, 29 S. C. R. 470, 16 Ann. Cas. 1066. 25 Adair v. United States, (1908) 208 U. S. 161, 52 L. Ed. 436, 28 S. C. R. 277, 13 Ann. Cas. 764. See infra, pp. 308, 317. 26 Professor Goodnow takes the view that this part of the opinion is dictum, since the court had already declared the provision under consider- ation to be a violation of the due process of law clause of the Fifth Amendment. Social Reform and the Constitution, 81 et seq. THE NATIONAL POLICE POWER 299 been convinced that the law was at the same time a real and sub- stantial exercise of one of the enumerated powers of Congress. The third limitation, or set of limitations, upon the national police power is to be found in the specific prohibitions upon con- gressional authority contained in the constitution and particularly in the bill of rights. These restrictions operate in a perfectly obvious and direct fashion. Congress may use its delegated powers for the protection of the national welfare; but in so doing it must not take life, liberty, or property without due process of law, take private property for public use without just compen- sation, interfere with religious liberty, or do any of those things which it is definitely forbidden by the constitution to do. This third limitation rests upon the well-established principle that the specific prohibitions of the constitution act as restraints upon the general grants of powers to Congress. 27 The restriction of due process of law is the one perhaps most commonly enforced against exercises of the national police power, particularly those passed under the commerce clause ; but in the exercise of the power over the postal system for the protection of the national morals or safety the question has sometimes arisen whether or not Congress has violated the guarantees of freedom of the press, or the guar- antee against unreasonable searches and seizures. 28 In the light of the foregoing constitutional principles and limitations, it is the purpose of the present article to discuss the police power which Congress has exercised under the grant of authority to regulate commerce; and to mark out the scope and variety of the protection which has been accorded the national safety, health, morals, and general welfare in this somewhat in- direct and roundabout way. General Nature and Scope of the Commerce Power If one were obliged to name the most potent cause leading to the calling of the Convention of 1787 he would not hesitate in choosing the need for a national control over foreign and inter- 27 Story, Constitution, II, Sec. 1864 et seq. Monongahela Navigation Co. v. United States, (1893) 148 U. S. 312, 336. 37 L. Ed. 463. 13 S. C. R. 622. 28 Ex parte lackson, (1877) 96 U. S. 727. 24 L. Ed. 877; In re Rapier. (1892) 143 U. S. 110, 36 L. Ed. 93, 12 S. C R. 374; Lewis Publishing Co. v Morgan, (1913) 229 U. S. 288, 57 L. Ed. 1190, 33 S. C. R. 867; Public Clearing House v. Coyne, (1904) 194 U. S. 497, 48 L. Ed. 1092, 24 S. C. R. 789. 300 MINNESOTA LAW REVIEW state commerce. That there was scant discussion of the problem in the Convention was perhaps due to the unanimity of convic- tion among the members of that body that the power to regulate commerce should unquestionably rest in the new Congress. Since the adoption of the constitution no small part of the time of Con- gress has been occupied with the exercise of this power, and no small part of the time of the Supreme Court has been spent in passing upon the constitutionality and meaning of those laws. Considering the wide range of instrumentalities and transactions which have come to be included in the term commerce it is but natural that the authority to regulate it should serve as the con- stitutional basis for the development of a wide national police power. The constitution confers upon Congress the" power to regulate three kinds of commerce: first, "with foreign nations," second, "among the several states," and third, "with the Indian tribes." 29 The power given in respect to each of these is the same, that is, the power to "regulate" ; and there is nothing in the language used to indicate that the framers of the constitution had in mind any distinctions as to the extent of the power of Congress over each type. Congress early utilized its authority over these differ- ent classes of commerce, however, in different ways, to meet ^j^ely different problems, and apparently without stopping to discuss whether its power over one was greater than over an- other. It was not until railroad transportation reached a high point of development that Congress, a full century after the fram- ing of the constitution, began to turn its mind seriously to the problems of interstate commerce regulation. But in the mean- time the regulations of foreign and Indian commerce had been numerous and rigorous in character. The question has, therefore, become pertinent whether Congress actually does have exactly the same power over interstate commerce that it enjoys over commerce with foreign nations and with the Indian tribes, or whether that power is more restricted. Especially has it been re- peatedly urged by those interested in the expansion of a national police power that Congress could exercise every power over inter- state commerce which it could exert in controlling foreign com- merce. 30 29 Art. I, Sec. 8. 30 This position has been taken, for instance, by those who believe that Congress may restrict child-labor by means of its control over inter- THE NATIONAL POLICE POWER 301 It is possible to cite several cases in which the Supreme Court has expressed the opinion that there is no difference between the powers of Congress over foreign and interstate commerce. 31 Mar- shall voiced this view in Gibbons v. Ogden;- 2 and in 1888 Mr. Justice Mathews in Bowman v. Chicago, etc., Ry. Co. declared, "The power conferred upon Congress to regulate commerce among the States is indeed contained in the same clause of the Constitu- tion which confers upon it power to regulate commerce with foreign nations. The grant is conceived in the same terms, and the two powers are undoubtedly of the same class and character and equally extensive." 33 While these statements sound perfectly conclusive and final, the fact remains that in passing upon the validity of several of the congressional police regulations over interstate commerce the court, though urged to do so, has steadily declined to uphold such regulations on the ground that similar police restrictions applicable to foreign commerce have been sus- tained. 34 A substantial body of opinion has grown up in support of the view that there is, after all, a difference between the two powers. It is urged by an eminent authority that "although the three classes of commerce are thus included in the same clause and in the same terms in the enumeration of powers, they are clearly distinguishable in their historic setting and constitutional import, and the laws which are necessary and proper in regulating commercial intercourse with foreign nations and with the Indian tribes may not be necessary and proper in regulating such com- mercial intercourse between the states." 35 Without anticipating the more detailed discussion of this problem appropriate at a later point in this article, it may be suggested that Congress has actu- ally exercised a police power over foreign commerce which there is reason to believe would be regarded as beyond its proper authority if applied to commerce among the several states. And while there is no authoritative judicial pronouncement upon this question, an authority over interstate commerce which does not state commerce. This point will be further considered in a later section of this article. 31 For citation of these cases, with comment, see note by E. B. Whitney, 7 Yale Law Tour. 294. 32 (1824) *9 Wheat. (U.S.) 1. 228, 6 L. Ed. 23. 33 (1888) 125 U. S. 465, 482, 31 L. Ed. 700, 8 S. C. R. 689. 34 This was true both in the Lottery Case and in the recent child-labor case; it will be treated more fully in connection with the latter case. 35 Judson, Interstate Commerce, 3rd ed., Sec. 6. 302 MINNESOTA LAW REVIEW extend to the exclusion from the channels of that commerce of the products of factories employing child-labor 36 can hardly be called co-extensive with an authority over foreign commerce which ex- cludes from our shores the products of convict-labor. 37 The relationship between the national government and the In- dians has always been regarded as anomalous, and it would be unprofitable to enter upon any extended comparison of the power of Congress over interstate commerce with that over commerce with the Indian tribes. Our control over these people has been paternalistic in character. 38 Because of the importance and deli- cacy of the problem, Congress has regulated intercourse with the Indians with a rigorous hand. It has forbidden commercial deal- ings with them in certain commodities, as, for example, intoxi- cating liquors; 39 and has even gone to the length of forbidding any one to trade with them without a license issued by the federal government. 40 It seems probable that restraints have been placed upon commerce with the Indians which could not be imposed upon ordinary trade relations between citizens of the states. The following discussion of the police power which Congress has come to exercise under the commerce clause may properly be confined, therefore, to the problems relating to interstate com- merce. This is appropriate not only because it is in that field of regulation that the national police power has developed in most striking and most varied form, but also because the preceding paragraphs make it clear that if there is any constitutional dis-' tinction among the powers of Congress over foreign, interstate, and Indian commerce the power over interstate commerce is the most narrowly restricted ; and accordingly whatever police power Congress may exercise over interstate commerce it may exercise over foreign and Indian commerce. 36 Hammer v. Dagenhart. (1918) 247 U. S. 251, 38 S. C .R. 529. 37 Act of October 3, 1913, 38 Stat, at L. 195. The validity of this law has never been questioned and would seem, in the light of numerous prec- edents, to be unquestionable. 38 Matter of Heff, (1905) 197 U. S. 488, 498, 49 L. Ed. 848, 25 S. C. R. 501 (overruled in United States v. Nice, [1916] 241 U. S. 591, 36 S. C. R 696). 39 Held valid in United States v. Holliday, (1866) 3 Wall. (U.S.) 407, 18 L. Ed. 182; United States v. Forty-three Gallons of Whiskey, (1876) 93 U. S. 188, 23 L. Ed. 846. 40 Upheld in United States v. Cisna, (1835) 25 Fed. Cas. 422. See Act of March 3, 1903, 32 Stat, at L. 1009. THE NATIONAL POLICE POWER 303 While the police regulations which Congress has passed under its authority to regulate interstate commerce have been exceed- ingly numerous and have dealt with a wide range of topics, from locomotive ashpans to obscene literature, they may all be placed for convenience in four groups, according to the general purpose of their enactment and the constitutional principles upon which they are based. (I) In the first group may be placed those regu- lations in which Congress has exercised police power for the pro- tection and promotion of interstate commerce itself by the enact- ment of such laws as the safety appliance acts, the anti-trust acts, and other regulations designed to keep that commerce safe, effi- cient, and unobstructed. (II) The second group comprises the cases in which the law forbids the use of interstate commerce as a medium or channel for transactions which menace the national health, morals, or welfare. In this class would be placed the Pure, Food Act, the White Slave Act, and other statutes by which Con- gress, instead of protecting commerce itself from danger, pro- tects the nation from the misuse of that commerce. (Ill) The third group consists of the enactments by which Congress co-oper- ates with the states by forbidding the use of the facilities of inter- state commerce for the purpose of evading or violating state police regulations. Here would be found such laws as the Webb- Kenyon Act, excluding from interstate commerce shipments of liquor consigned to dry territory. (IV) In the last group should be placed the Keating-Owen Child-Labor Act of 1916, by which Congress attempted to deny the privileges of interstate commerce to articles produced under conditions which Congress disapproved but which it had no direct power to control. Careful con- sideration may profitably be given to each of these groups. I. National Police Power for Promotion and Protection of Commerce 1. Appliances and Physical Regulations Necessary for Safety. It is but natural that Congress should feel that one of the most obvious and necessary duties imposed upon it by the grant of power to regulate commerce is the duty to pass police regulations to protect from destruction, loss, or damage the lives, limbs, and property of persons concerned in the processes or transactions of interstate commerce, whether as passengers, shippers, or em- 304 MINNESOTA LAW REVIEW ployees. As early as 1838 laws were passed requiring the in- stallation of safety devices upon steam vessels. 41 Beginning with a statute passed in 1866 Congress has rigorously controlled the transportation on land and water of explosives. 42 But it was not until 1893 that Congress began to enact the comprehensive set of safety appliance acts now applicable to interstate railroads. 43 The first of these acts was the Automatic Coupler Act, 44 which has been supplemented by more recent laws requiring, among other things, the use of ashpans 45 on locomotives, the inspection of boilers, 46 and the use of ladders, hand-brakes, drawbars, and similar devices on cars. 47 To the same general purpose are the statutes requiring railroads to make full reports to the Interstate Commerce Commission regarding all accidents. 48 A statute of 1913 protects interstate commerce from another type of loss by making criminal the unauthorized breaking of the seals of rail- road cars containing interstate or foreign shipments. 49 The purpose of Congress in passing these laws is perfectly plain. Most of them, following the pioneer Safety Appliance Act of 1893, declare specifically that their object is "to promote the safety of employees and travellers upon railroads." The courts have uniformly recognized this purpose. "The Safety Appliance Act," declares one federal judge, "is essentially a police regulation. Its general purpose is humanitarian — the safeguard- ing of employees from injury and death." 50 In the words of another court, "the object of Congress in passing the safety ap- pliance acts was undoubtedly to safeguard interstate commerce, the life of the passengers, and the life and limb of the employees 41 Act of July 7, 1838, 5 Stat, at L. 304 ; Act of March 3, 1843, ibid., 626. 42 Act of July 3, 1866, 14 Stat, at L. 81. For legislation on this subject now in force, see the U. S. Criminal Code of March 4, 1909, 35 Stat, at L. 1134, Sees. 232-236. « Collected in Comp. Stat. 1918, Sees. 8605-8650 ; 3 U. S. S. A. 480-530. 44 Act of March 2, 1893, 27 Stat, at L. 531. 45 Act of May 30, 1908, 35 Stat, at L. 476. 46 Acts of February 17, 1911, 36 Stat, at L. 913, and March 4, 1915, 38 ibid., p. 1192. ^ Act of April 14, 1910, 36 Stat, at L. 298. 48 Act of May 6, 1910, 36 Stat, at L. 351; Act of February 17, 1911, ibid., p. 216. 49 Act of February 13. 1913, 37 Stat, at L. 670. Upheld in Morris v. United States, (1916) 229 Fed. 516. 50 United States v. Philadelphia, etc., Ry. Cc 0915 ^ 223 Fed. 215, 216. THE NATIONAL POLICE POWER 305 engaged therein."'' 1 The Supreme Court itself has declared the purpose of this legislation to be "to promote the public welfare by securing the safety of employees and travellers."'' 2 That these statutes designed to insure the physical safety of interstate commerce are police regulations falling well within the recognized limits of congressional power is too obvious to call for argument ; so obvious, in fact, that the Supreme Court has never been asked to decide a case in which it was squarely con- tended that acts of this kind were not natural and legitimate regu- lations of commerce."''' Moreover, in several cases involving the meaning and application of these statutes, as well as in cases in- volving analogous exercises of the commerce power, that tribunal lias alluded to the safety appliance acts in terms which place the question of their validity in the realm of settled law. 54 And in- deed if the power to regulate commerce does not include the power to make reasonable rules to secure the physical safety of the lives and property of travellers, shippers, and employees, it may well be inquired what conceivable kind of commercial regu- lation could be regarded as legitimate. 2. Regulations of Labor Necessary for Safety of Interstate Commerce, (a) Hours of Service Act: It came at last to be recognized that safety appliances and regulations were not enough in- and of themselves to insure the physical safety of interstate commerce. There were plenty of gruesome proofs of the fact that life and property on interstate railroads were as much jeopardized by the deadening fatigue of a locomotive engineer as by the absence of block signals or automatic couplers. Ac- cordingly, in 1907 Congress passed the Hours of Service Act, 55 making it unlawful for any interstate carrier to employ a train- si United States v. Atl. Coast Line R. Co., (1913) 214 Fed. 498, 499. 52 Tohnson v. So. Pacific Co., (1904) 196 U. S. 1, 17, 49 L. Ed. 365, 25 S. C.'R. 158. 33 The validity of these laws has been passed upon squarely, however, in numerous decisions of the lower federal courts. For extensive citation of cases, see Thornton, The Federal Employers' Liability Act, 3rd ed., p. 334: Richey, Federal Employers' Liability, Safety Appliance, and Hours of Service Acts, 2nd ed.. Sec. 215. 54 Tohnson v. So. Pacific Co.. supra ; Schlemmer v. Buffalo, etc.. Ry Co., (1907) 205 U. S. 1. 51 L. Ed. 681. 27 S. C. R. 407; Employers' Liability Cases (1908) 207 U. S. 463. 52 L. Ed. 297. 28 S. C. R. 141 : Southern Ry. Co. v. United States, (1911) 222 U. S. 20, 56 L. Ed. 72. 32 S. C. R. 2; Second Emplovers' Liability Cases, H912) 223 U. S. 1, 56 L. Ed. 327, 32 S. C. R. 169. 38 L. R. A. (N.S.) 44; Wilson v. New. (1917) 243 U. S. 332, 61 L. Ed. 755. 37 S. C. R. 298. ss March 4, 1907, 34 Stat, at L. 1415. 306 MINNESOTA LAW REVIEW man for a period longer than sixteen consecutive hours and re- quiring definite rest periods in every twenty-four hours. The hours of train dispatchers and telegraphers were still further re- duced, thirteen consecutive hours being the maximum where only day work was required and nine hours out of twenty-four where both night and day work was expected. It is important to bear in mind that such a limitation upon hours of service as that provided for in the act of 1907 stands in sharp contrast, both in purpose and in constitutional justification, to such a statute as the Adamson Law providing for a standard eight-hour day on interstate railroads. While the employees affected by the Hours of Service Act would of course benefit by the relief granted from continuous labor for long hours, such relief constituted only a secondary motive for the passage of the act; certainly the legal authorization of a sixteen-hour day does not indicate a very vigorously humanitarian interest in the welfare of the workingmen affected. The object of the act was quite clearly to promote the safety of interstate commerce on railroads ; and the title of the statute specifically declares it to be "An Act to Promote the Safety of Employees and Travellers upon Rail- roads by Limiting the Hours of Service of Employees Thereon." Viewed thus as a safety regulation, there could be no serious question as to the validity of the act; and in upholding it as a valid exercise of the power of Congress to regulate commerce Mr. Justice Hughes declared : "In its power suitably to provide for the safety of employees and travelers, Congress was not limited to the enactment of laws relating to mechanical appliances, but it was also competent to consider, and to endeavor to reduce, the dangers incident to the strain of excessive hours of duty on the part of engineers, conductors, train dispatchers, telegraphers, and other persons embraced within the clause defined by the act." 56 At a later point in this article 57 it will be made clear that no such argument as this was applied to the Adamson Law, and it was sustained by the Supreme Court on widely different grounds. (b) Employers' Liability Statutes: When Congress, after considerable prodding by an energetic and persistent president, 58 se Baltimore & Ohio R. Co. v. Int. Com. Comm, (1911) 221 U. S. 612, 55 L. Ed. 878, 31 S. C. R. 621. "Infra, p. 315. 58 President Roosevelt urged the passage of the act in various mes- sages to Congress. 1 THE NATIONAL POLICE POWER 307 finally passed the first Employers' Liability Act in 1906,™ there is every reason to believe that the members of that body were actuated by a humanitarian interest in the welfare of the work- men on interstate railroads. Like the state legislatures which had passed similar laws, they wished to take away the unjust and oppressive burdens which the common law doctrines of employ- ers' liability had placed upon the shoulders of the injured work- man. Senator Dolliver, who was a particularly vigorous pro- ponent of the law, expressed in the senate his belief that there was not a single senator "who does not recognize the equity and justice involved" in such legislation, and added that "there is scarcely an American state in these recent years which has not taken this step forward in industrial justice." 60 The federal employers' lia- bility laws were passed in order to guarantee to the men to whom they applied a reasonably square deal. It must, therefore, have been something of a surprise to the members of Congress who had fought and voted for this legis- lation to learn from the Supreme Court that what they had really passed was not an act to secure economic justice in certain rela- tions between employers and employees in interstate commerce, but a safety regulation. 61 It will throw some light upon the nature of the limitations resting upon the police power of Con- gress to understand why it is that from the standpoint of consti- tutional law there is no substantial difference between the Em- ployers' Liability Act and the Boiler Inspection Act. It is not difficult to follow the steps in the chain of reasoning which led the Supreme Court to this somewhat startling result. In the first place, the power under which Congress is purporting to act in passing the Employers' Liability Act is the authority to regulate commerce ; Congress has no power to regulate labor as such. It follows, therefore, that only those regulations of the relations between master and servant which are at the same time 50 June 11. 1906. 34 Stat, at L. 232. 60 Quoted by Thornton in his excellent summary of the legislative his- tory of the act. See Thornton, Federal Employers' Liability Act, 3rd ed. G1 The first Employers' Liability Act was declared unconstitutional by the Supreme Court in the Employers' Liability Cases, (1908) 207 U. S. 463, 52 L. Ed. 297, 28 S. C. R. 141, because its provisions extended to include the employees of interstate carriers even when such employees were not them- selves engaged in any of the processes of interstate commerce. Congress remedied this defect in passing the second statute, April 22. 1908, 35 Stat, at L. 65. which was held valid in the Second Employers' Liabilitv Cases, (1912) 223 U. S. 1. 56 L. Ed. 327, 32 S. C. R. 169, 38 L. R. A. (N.S.) 44. 308 MINNESOTA LAW REVIEW regulations of commerce are within the power of Congress. Only three years before, the court, speaking through Mr. Justice Harlan in the Adair case, had declared that one of the reasons why Congress had exceeded its power when it forbade interstate carriers to discharge any employee because he belonged to a labor union was because "there is no such connection between interstate commerce and membership in a labor organization as to authorize Congress" to pass such a law, 62 Now if the only object and result of the employers' liability statutes was to secure a more equitable incidence of the burden of industrial accidents between the em- ployers and the employees in interstate commerce and thereby to protect the welfare of a certain economic group, then Congress in passing such an act had again exceeded its authority, since it could hardly be shown that the statute really regulated interstate commerce or bore any reasonable relation to it. But if, on the other hand, it could be shown that the act would promote or protect interstate commerce in some definite way, then, of course, it could be upheld. Counsel for the government therefore wisely urged upon the court with great vigor the view that "if the con- ditions under which the agents or instrumentalities do the work of commerce are wrong or disadvantageous, those bad conditions may and often will prevent or interrupt the act of commerce or make it less expeditious, less reliable, less economical, and less secure." 63 It is a well established principle of, constitutional construction that a statute, when possible, should be so construed as to save it ; and the court readily adopted the alluring argument which made it possible to sustain the validity of the act. It de- clared its belief that "the natural tendency of the changes de- scribed is to impel the carriers to avoid or prevent the negligent acts and omissions which are made the bases of the rights of recovery which the statute creates and defines ; and as whatever makes for that end tends to promote the safety of the employees and to advance the commerce in which they are engaged, we entertain no doubt that in making those changes Congress acted within the limits of the discretion confided to it by the Consti- tution." 64 Thus a statute which, viewed merely as a measure to insure economic justice to the employees of interstate carriers, 62 Note 25, supra. 63 Second Employers' Liability Cases, note 61, supra, 223 U. S. at p. 48. 64 Ibid., p. 50. For a criticism of this point of view, see L. J. Hall, The Federal Employers' Liability Act, (1910) 20 Yale Law Jour. 122, in which THE NATIONAL POLICE POWER 309 would doubtless have been invalidated, was enabled to pass the scrutiny of the courts by donning the somewhat transparent dis- guise of a regulation to prevent railroad accidents. 3. Regulations Necessary to Prevent the Obstruction or Sus- pension of Interstate Commerce. It has been suggested above that perhaps the most important cause for the formation and adoption of our federal constitution was the desire to establish a government with power to regulate foreign and interstate com- merce according to a uniform rule and thereby to put an end to the chaos of obstructions, burdens, and inharmonious systems of control affecting that commerce which emanated from the jeal- ousies of thirteen separate commonwealths. The very first case in which the commerce clause of the new constitution came before the Supreme Court for interpretation was a case in which the court refused to allow the state of New York to obstruct the freedom of interstate commerce by granting to one of its citizens an exclusive right to navigate the Hudson River by steamboat. 05 Since that time no small proportion of the judicial attention which the commerce clause has received has been directed to the prob- lem of preventing state interference with interstate commerce. It would seem, therefore, that in exercising its delegated power to regulate commerce Congress could tread on no safer ground, could use its authority in no way more clearly in harmony with the purpose for which it was conferred, than when it passed regulations designed to prevent the obstruction or suspension of commerce. And while, curiously enough, the positive enactments of this kind to be found in the federal statute books are not quite so numerous nor elaborate as one might expect, yet they present some problems of peculiar interest to those interested in the de- velopment of a national police power. They may be conveniently arranged in the following groups, each of which merits some comment. (a) Regulations to Prevent Physical Obstructions: It is un- it is urged that "it is only by an indirect and unsatisfactory method of reasoning that it can be said that safety in transportation is promoted by increasing the amount of damages which a railroad company must pay for the acts of carelessness of its men in their relations to each other." It will be noted that the article was written before the Second Employers' Lia- bility Cases were decided, but its reasoning is applicable to the doctrine of those cases. es Gibbons v. Ogden. (1824) 9 Wheat. (U.S.) 1. 6 L. Ed. 23. 310 MINNESOTA LAW REVIEW necessary to enlarge upon the fact that Congress has full author- ity to penalize any act which results in the physical obstruction or interference with commerce. "Any offense," declared Mr. Justice Story in 1838, "which thus interferes with, obstructs, or prevents such commerce and navigation, though done on land, may be punished by Congress, under its general authority to make all laws necessary and proper to execute their delegated constitu- tional powers." 66 Congress has accordingly enacted a fairly sub- stantial penal code designed to preserve and protect navigable rivers and harbors from obstruction, to regulate the erection of bridges and piers, and in various other ways to keep commerce by water free and untrammeled. 67 There would seem to be no doubt as to the existence of similar congressional authority to afford this kind of protection to the facilities of interstate land commerce; but, with the exception of the Larceny Act of 1913, already mentioned above, 68 and some of the recent war legisla- tion, 69 Congress has, except in emergencies which will be alluded to later, 70 preferred to rely upon the criminal laws of the several states to prevent the physical obstruction of interstate commerce by land. (b) Regulations to Prevent Economic Obstructions or Re- straints of Commerce. (1) By combinations of capital: It would not be relevant to the subject under consideration to launch out upon any extended discussion of the highly interesting and impor- tant laws Congress has passed for the purpose of solving the so- called trust problem. The fact that the policy of the federal gov- ernment toward trusts and monopolies has not always been happy in its conception or successful in its administration has little to do with the fact that the general underlying motives of that policy have always been the same : namely, to keep interstate commerce free from the obstacles and interferences resulting from monopoly and other combinations and conspiracies designed to destroy free competition and restrain trade. It will hardly be 66 United States v. Coombs, (1838) 12 Pet. (U.S.) 72, 9 L. Ed. 1004. 67 See U. S. Comp. Stat. 1918 Sec. 9909 et seq. 68 Supra, p. 304, note 49. 69 The War Materials Destruction Act of April 20, 1918. By the provi- sions of this act the instrumentalities and facilities of interstate commerce, or "war utilities" as they are called, are, along with "war materials" and "war premises," protected from wilful injury and destruction. The act rests, of course, upon the war power of Congress and not on the com- merce power. 70 Infra, pp. 314, 315, notes 87, 88. THE NATIONAL POLICE POWER 311 denied that these acts are police regulations designed for the pro- tection of commerce. The first of these statutes penalized certain specific acts, such as discriminations among shippers and rebating, which Congress deemed destructive to the freedom of competition desirable in interstate commerce. This type of regulation includes the Interstate Commerce Act of 1887 and the various amend- ments to it passed since that time. 71 Federal police regulations making certain acts criminal were soon found to be a very inad- equate means of freeing interstate commerce from monopolistic obstructions ; and so Congress, convinced that relief could be had by breaking up trusts, combinations, and conspiracies in restraint of trade, enacted the famous Sherman Act of 1890. 72 After two decades of sporadic and more or less ineffectual "trust-busting," Congress supplemented the Sherman Act by legislation designed to make the act more definite in meaning and effective in opera- tion. 73 This supplementary anti-trust act, known as the Clayton Act, was accompanied by the passage of the Trade Commission Act. 74 By the passage of this latter act Congress embarked upon a new policy in respect to combinations of capital — the policy of administrative control. While this act must still be regarded as a federal police regulation for the protection of commerce, the method employed for that purpose was the creation of an admin- istrative commission with power to investigate, advise, and issue - 1 Act of February 4, 1887, 24 Stat, at L. 379. The text of this act and the amendments thereto are set forth and discussed at length in Judson. Interstate Commerce, 3rd ed. See also, Fuller, The Interstate Commerce Act, (1915). One striking instance of this type of police regulation over interstate commerce is to be found in the commodities clause of the Hep- burn Act, June 29, 1906, 34 Stat, at L. 584. The purpose of this act was to compel the interstate railroads to dispose of such interests as they might have in the coal mining business by making it unlawful for them to carry in interstate commerce "any article or commodity other than timber and the manufactured products thereof, manufactured, mined or produced by it, or under its authority, or which it may own in whole or in part, or in which it may have an interest, direct or indirect . . ." The legislative purpose, however, was not effectuated, because the Supreme Court in pass- ing upon the constitutionality of the law construed it in such a way as to permit the railroad to transport coal from its own mines provided such coal had been sold by the railroad before such transportation took place. United States v. Delaware, etc., Co., (1909) 213 U. S. 366, 53 L. Ed. 836, 29 S. C. R. 527. For an excellent discussion of the history, interpretation, and operation of the clause, see Kibler, The Commodities Clause (1916) : also Hand, the Commodities Clause and the Fifth Amendment, (1909) 22 Harv. Law Rev. 250. -2 Act of July 2. 1890, 26 Stat, at L. 209. " The Clayton Act of October 15. 1914, 38 Stat, at L. 731. 74 Act of September 26, 1914, 38 Stat, at L. 719. '312 MINNESOTA LAW REVIEW orders based upon definite findings of fact. Combinations of capital formerly in- bad odor merely because of their size and importance were to be kept within the law and prevented from interfering with the freedom of commerce by an active govern- mental supervision and co-operation. While the litigation which has arisen under these acts, or at least under the earlier ones, has been exceedingly voluminous and the courts have spent much time construing and applying them to the concrete problems which have arisen, there seems never to have been any serious question raised as to the authority of Congress to pass laws designed to accomplish the results which these acts sought to achieve. Such constitutional objections as have been urged against these enactments have been aimed at the details of method and procedure rather than at the validity of the legislative object. 75 (2) By combinations of labor: While Congress seems never to have passed, under its commerce power, any police legislation which in express terms names labor organizations and forbids them to enter into conspiracies or to commit acts which would obstruct or suspend interstate commerce, several of its enact- ments are couched in terms broad enough to permit the courts to apply their restraints and prohibitions to combinations of laborers. This is true, in the first place, of the Interstate Commerce Act of 1887. 76 This act makes it unlawful for any common carrier subject to the provisions of the statute "to make or give any undue or unreasonable preference or advantage to any particular person, company, firm, corporation, or locality, or any particular descrip- tion of traffic, in any respect whatsoever, or to subject any par- ticular person, company, firm, corporation, or locality, or any particular description of traffic, to any undue or unreasonable prejudice or disadvantage." 77 It is specifically made criminal under heavy penalty for "any common carrier subject to the pro- visions of this act, or, when such common carrier is a corporation, any director or officer thereof, or any receiver, trustee, or lessee, agent, or person acting for or employed by such corporation" to 75 Any doubt as to the validity of the Sherman Act was set at rest bv the decision in Addyston Pipe and Steel Co. v. United States. (1899) 175 U. S. 211, 44 L. Ed. 136. 20 S. C. R. 96. 70 Note 71, supra. 77 Sec. 3. THE NATIONAL POLICE POWER 313 do or conspire to do any of the unlawful acts above set forth. 7 * In 1893 Judge Taft held that these provisions were applicable to the officers and members of a brotherhood of locomotive engineers who had induced the railroad for which they worked to join them in a boycott against a railroad which was engaged in a strike because of its refusal to meet certain demands of its men. 79 As long as the men remained in the employ of the railroad they were subject to injunctions to restrain them from violations of these provisions. Judge Taft also declared t,hat a conspiracy on the part of the employees to violate these sections could be punished under the general provision of the Criminal Code penalizing those who "conspire to commit any offense against the United States. " s " It is thus clear that the Interstate Commerce Act is not only applic- able to common carriers but imposes restraints and obligations for the protection of interstate commerce upon labor organizations as well. sl In like- manner the Sherman Act 82 has been applied to acts of combinations of laborers when the effect of those acts was to interfere with interstate commerce or to restrain trade. It is unnecessary to enter here into a discussion of the question whether or not Congress actually intended to include the activities of labor organizations within the prohibitions of the act. 83 It is less important that Mr. Gompers and other labor leaders believed that Congress intended that labor unions should be outside the scope of the act than it is that the Supreme Court should have found the words of the statute so broad and inclusive that it could discover no legal basis for exempting labor unions from the operation of the act. The law declares in sweeping terms that "Every contract, or combination in the form of a trust, or other- wise in restraint of trade or commerce among the several states or with foreign nations, is herebv declared to be illegal." In 78 Sec. 10. Italics are the author's. 79 Toledo, etc., Ry. Co. v. Penn. Co., (1893) 54 Fed. 730; same case, ibid., p. 746. so Rev. Stat. Sec. 5440. 81 For detailed discussion of this whole point, with citation of cases, see Judson, Interstate Commerce, 3rd ed.. Chap. 6 and Sees. 408-417; Martin, The Modern Law of Labor Unions, Chap. 14. 82 Note 72, supra. 83 A clear statement of both sides of the question is found in Laidler, Boycotts and the Labor Struggle, 170 et seq. 314 MINNESOTA LAW REVIEW construing that act, the courts, with practical unanimity, 84 have steadily refused to make any distinction between combinations of capital and combinations of labor which were in restraint of trade. In numerous cases injunctions have been issued by the United States courts against such restraints of trade, or against more direct obstructions of commerce by labor organizations ; 85 while in the Danbury Hatters case the Supreme Court held squarely that the provisions of the Sherman Act were applicable to trade unions so as to permit the recovery from the members of the hatters' union of triple damages by their employers whose business had been injured by a secondary boycott. 86 During the Pullman strike of 1893 a federal circuit court issued an injunction based upon the provisions of the Sherman Act, restraining Eugene V. Debs and other officers of the Ameri- can Railway Union from interfering in any way with interstate commerce or the mails. 87 When the case came before the Su- preme Court on appeal, however, the court declined -to regard the Sherman Act as the necessary source of the authority of the court to issue the injunction (although not denying that it did confer such power), but declared that the broad grant of author- ity to the national government to regulate interstate commerce was sufficient in itself to warrant the granting by the courts of injunctive relief against those who obstructed or restrained such 84 The only exception seems to be United States v. Patterson, (1893) 55 Fed. 605, in which the court took the view that "restraints of trade" must be interpreted in the strict common law sense as meaning efforts to "monopolize or grasp the market." 85 United States v. Workingmen's Amalgamated Council, (1893) 54 Fed. 994, 26 L. R. A. 158; United States v. Debs, (1894) 64 Fed. 724. Other cases in Martin, op. cit, 246, 247, note 81, supra. 86 Loewe v. Lawlor, (1908) 208 U. S. 274, 52 L. Ed. 488, 28 S. C. R., 301, 13 Ann. Cas. 815. The result reached in this case would seem to be im- possible under the existing law. The Clayton Act of October 15, 1914, specifically declares that the labor of a human being is not to be regarded as a commodity or article of commerce and that "nothing contained in the anti-trust law shall be construed to forbid the existence and operation of labor, agricultural, and horticultural organizations instituted for the pur- pose of mutual help and not having capital stock or conducted for profit, or to forbid or restrain individual members of such organizations from lawfully carrying out the legitimate objects thereof, nor shall such organi- zations or members thereof be held or construed to be illegal combinations or conspiracies in restraint of trade under the anti-trust laws." While this act legalizes certain activities of labor organizations befor f regarded as illegal, it does not, of course, have the effect of permitf""" ? uiy direct and substantial obstructions of interstate commerce. 87 United States v. Debs, (1894) 64 Fed. 724. THE NATIONAL POLICE POWER 315 commerce. 88 From this decision it would seem, therefore, to follow that specific police legislation by Congress to prevent the obstruction of interstate commerce is unnecessary to enable fed- eral courts sitting in equity to prevent such obstruction. To classify the Eight-Hour Law, popularly known as the Adamson Law, sa which was passed by Congress in the autumn of 1916, as a police regulation to protect interstate commerce from obstruction and interference will seem at first a curious perversion of facts. But those who will recall the legislative history of the statute and examine carefully the opinion of the Supreme Court in the case in which the constitutionality of the law was upheld will be convinced that such a classification of the act is accurate from the standpoint both of legislative intention and of constitutional law. It seems perfectly clear that Congress passed the law at the request of President Wilson for the single purpose of averting the nation-wide railroad strike which there was every reason to believe would take place if the law were not passed. It is equally apparent that the Supreme Court upheld the law on the ground that its passage was necessary to accom- plish this result and avoid the threatened suspension of interstate commerce. This remarkable decision merits some little comment. In considering the validity of the Adamson Law. which was questioned in the case of Wilson v. New, 90 it was necessary for the court to apply the same tests which it has always applied to regulations of commerce enacted for police purposes. 01 In the first place, is the act a bona fide regulation of commerce; in the second place, assuming that it is, does it deprive any person of life, liberty, or property without due process of law? The court accordingly addressed itself to the question whether Congress was really regulating interstate commerce when it established an eight-hour day for trainmen on interstate railroads. The answer of the court to this question was that the act was a regu- lation of interstate commerce because its passage was necessary in order to prevent the complete suspension of that commerce. It alluded to the long list of acts, many of which have already been discussed in this article, by which Congress had sought to make interstate commerce safe and efficient. It mentioned par- 88 In re Debs, (1895) 158 U. S. 564, 39 L. Ed. 1092, 15 S. C. R. 900. 89 Act of September 3, 5, 1916, 39 Stat, at L. 721. so (1917) 243 U. S. 332, 61 L. Ed. 755, 37 S. C. R. 208. 91 Supra, p. 297 et seq. 316 MINNESOTA LAW REVIEW ticularly the Hours of Service Act, the Safety Appliance Acts, and the Employers' Liability Act, in all of which the power to regulate commerce had been used to control various relations between employers and employees. It then pointed out "how completely the purpose intended to be accomplished by the regu- lations which had been adopted in the past would be rendered unavailing or their enactment inexplicable if the power was not possessed to meet a situation like the one with which this statute [the Adamson Law] dealt. What would be the value of the right to a reasonable rate if all movement in interstate commerce could be stopped as the result of a mere dispute between the parties or their failure to exert a primary right concerning a matter of interstate commerce? Again, what purpose would be subserved by all the regulations established to secure the enjoy- ment by the public of an efficient and reasonable service if there was no power in government to prevent all service from being destroyed . . . ? And finally, to what derision would it not' reduce the proposition that government had power to enforce the duty of operation if that power did not extend to doing that which was essential to prevent operation from being completely stopped . . .?" The question whether the statute was in violation of the due process of law clause of the Fifth Amendment was considered by the court in a portion of the opinion which need not be treated in detail here. It is sufficient to say that the abridgment of 'the freedom of contract which the act entailed upon employers and employees was found constitutionally permissible because both were engaged in a business charged with a public interest and therefore subject to types of congressional regulation which could not be imposed upon any business except public utilities. It is important to notice that the opinion of Chief Justice White marks out an entirely new boundary line for the exercise by Congress of its police power over interstate commerce for the purpose of protecting that commerce from obstruction or suspen- sion. In the earlier cases in which the court had been obliged to decide whether or not a statute purporting to regulate commerce actually did so, it was the subject matter of the regulation which was examined. If the provisions of the statute bore a reasonable and direct relationship to interstate commerce, then, in the ab- sence of other constitutional defects, it was held a valid regulation of commerce; if not, it was held invalid. It will be recalled that THE NATIONAL POLICE POWER 317 Mr. Justice Harlan in the majority opinion in the Adair case" 2 expressed the view that the provisions of the Erdman Act which made it a penal offense for an interstate carrier to discharge an employee because of his membership in a labor organization did not have a sufficiently close relationship to interstate commerce to make it a valid regulation thereof. Various other attempts of Congress to regulate commerce have suffered the same fate. 93 But in considering whether or not the Adamson Act was a bona ride regulation of commerce the court paid practically no atten- tion to what the law was about. The mind of the court was fixed upon what would happen if the law was not passed. It was urged upon the court that the law was, in effect, a regulation of wages and as such did not fall properly within the scope of the commerce power. The court disposed of this objection by de- claring that "if it be conceded that the power to enact the statute was in effect the exercise of the right to fix wages where, by reason of the dispute, there had been a failure to fix by agree- ment, it would simply serve to show the nature and character of the regulation essential to protect the public right and safeguard the movement of interstate commerce, not involving any denial of the authority to adopt it." In short, it is difficult to escape the conclusion that the Supreme Court regarded the Adamson Law as a regulation of interstate commerce, not because it dealt with the wages or hours of labor of railroad employees, but because its passage was demanded by an organization which was in a position to bring about a total cessation of interstate com- merce if its demand was not acceded to. If this is true, then it would seem to follow that any legislation which forms the sub- ject matter of the demands of a body of individuals possessing the power to bring interstate commerce to a standstill if those de- mands are not granted, must be regarded as a legitimate exercise of the power of Congress to regulate commerce, provided such legislation does not violate the due process of law clause or any other specific constitutional prohibition. This s.tartling doctrine without doubt opens up some rather interesting possibilities in the way of broadening the scope of the national police power under the commerce clause. The majority opinion in Wilson v. New is also interesting 02 Note 25, supra. 93 Supra, p. 298. 318 MINNESOTA LAW REVIEW because it asserts unequivocally that Congress could, without exceeding its constitutional powers, enact a new type of police regulation under the commerce clause : namely, a law providing for the compulsory arbitration of disputes between interstate carriers and their employees. In fact, Chief Justice White took the point of view that the Adamson Act was in effect the award of a tribunal before which the railroads and the brotherhoods had been compelled to arbitrate their differences. Instead of creating special machinery for such arbitration, Congress itself served as the arbitral tribunal and enacted its award into law. "We are of opinion," declared the chief justice, "that . . . the act which is before us was clearly within the legislative power of Congress to adopt, and that, in substance and effect, it amounted to an exercise of its authority under the circumstances disclosed to compulsorily arbitrate the dispute between the parties by establishing as to the subject matter of that dispute a legisla- tive standard of wages operative and binding as a matter of law upon the parties, — a power none the less efficaciously exerted because exercised by direct legislative act instead of by the en- actment of other and appropriate means providing for the bring- ing about of such result." While it was unnecessary to the decision of the case for the court to state whether or not it would regard the general scheme of compulsory arbitration applicable to interstate carriers constitutional, the dictum was couched in such language and the underlying principle of the whole case is such as to leave little room for doubt that the court would regard such a system as a legitimate exercise of the power to regulate commerce. Congress has enacted several laws aimed to provide facilities for the arbitration of labor disputes affecting interstate commerce, 94 but it has never made it obligatory upon the parties to such disputes to arbitrate ; these laws providing for mediation, conciliation, and voluntary arbitration are not, therefore, police regulations in the sense in which that term is used in this article, since they subject no one to restraint or compulsion. It seems clear, however, in light of the utterances of the court in Wilson v. New, that the continuance of the voluntary system of arbitra- tion is a matter to be settled by legislative discretion alone, and that as soon as Congress deems it expedient an effective system of 94 Act of October 1, 1888. 25 Stat, at L. 501; Act of June 1, 1898, 30 Stat, at L. 424; Act of July 15, 1913, 38 Stat, at L. 738. THE NATIONAL POLICE POWER 319 compulsory arbitration could be put into force without violating any provision of the constitution. By way of summary of the ground covered thus far, it is ap- parent that no insignificant amount of legislation, social and economic in character, legislation which may properly be called national police legislation, has been passed by Congress in pur- suance of its authority to protect and promote interstate com- merce. In order to protect the lives, limbs, and property of those who are concerned with interstate commerce as passengers, ship- pers, or employees, Congress has enacted a most elaborate series of provisions relating to the physical appliances and regulations necessary to insure such safety. For the same purpose Congress has regulated in various ways the conditions under which the em- ployees engaged in interstate commerce shall do their work. And the courts have taken a rather generous view of the amount of such welfare legislation which may be justified constitutionally upon the theory that it promotes the safety, reliability, and effi- ciency of interstate commerce. Finally, in order to prevent the obstruction of interstate commerce, Congress has been forced to deal with the complex problem of monopolies and combinations in restraint of trade, has imposed restrictions upon the freedom of action of organized labor, and, where collective bargaining has broken down, has assumed the role of an arbiter in disputes between labor and capital. In short, congressional responsibility for the safe, free, uninterrupted flow of commerce between the states carries with it the constitutional authority to legislate upon a wide range of problems, not commonly regarded as commercial in character, which vitally affect the national safety and welfare. THE NATIONAL POLICE POWER 381 THE NATIONAL POLICE POWER UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION* II. Regulations Barring the Use of Interstate Commerce As a Conduit for Injurious Commodities and An Aid in Illicit Transactions . Although Congress in its efforts to protect the national health, morals, and general welfare has been compelled to use a process of indirection and has had to do good not merely by stealth but by subterfuge, the result has been that, under its specific grants of power to regulate interstate commerce, to tax, and to maintain a postal system, Congress has succeeded in lay- ing a compelling or restraining hand upon numerous abuses, has wrestled with a considerable variety of economic and social prob- lems, and has, accordingly, exercised a police power that has been real and substantial. By far the greatest number of those acts of Congress, which, even though labeled interstate commerce or tax or postal regulations, are really police enactments in disguise, have been passed under the authority to regulate commerce : a group of these, those passed to protect interstate commerce from danger or obstruction, have been discussed in the previous por- tion of this article. There remain still to be discussed three main groups of police regulations passed under the sanction of the commerce clause : those forbidding the use of interstate com- merce as a channel for transactions that menace the national health, morals, or general welfare; those passed to co-operate with the states by forbidding the use of the facilities of inter- state commerce for the purpose of evading or violating state police regulations ; and finally the Child-Labor Law, by which Congress sought to deny the privileges of interstate commerce to articles produced under conditions of which Congress did not approve. * Continued from 3 Minnesota Law Review 319. 382 MINNESOTA LAW REVIEW It has been made clear that Congress has full right under its power "to regulate commerce .... among the several states" to protect that commerce from danger and obstruction; and the Supreme Court has found it possible to uphold the Employers' Liability Act as necessary to protect commerce from railway accidents, and the Adamson Eight-Hour Law as neces- sary to keep commerce from being obstructed. But if Congress were limited in its power over interstate commerce merely to the protection of that commerce, then a good many abuses and dangers arising from or augmented by interstate commerce would be left unremedied. But Congress has not felt itself so circum- scribed. It has regarded as a proper use of its authority over commerce not only the protection of commerce itself but also the protection of the public from the misuse of that commerce. One of the most interesting and important steps in the develop- ment of a national police power under the commerce clause has been the enactment of a group of laws by which the channels of interstate commerce have been closed to commodities or trans- actions which are injurious, not to that commerce or to any of the agencies or facilities thereof, but to the health, morals, safety, and general welfare of the nation. When Congress punishes the man who ships across a state line bottles of colored water declared by their labels to be a cure for cancer, it does so not because those bottles are a whit more dangerous to commerce than would be a consignment of shoes, but because it desires to prevent the facilities of commerce from being used as a means of distributing goods which are a fraud upon the people who buy and use them. When Congress makes it a felony to transport a woman from one state to another for immoral purposes, it does so not because it is more dangerous or injurious to an interstate carrier to carry a prostitute than to carry a clergyman, but because it is undesirable to have interstate carriers used as tools or agencies by those engaged in the white slave traffic. There ought to be no difficulty in concluding that the authority to pass such laws is reasonably implied from the plenary power of Congress to regulate commerce. When a man is given charge of a gun or an axe he is expected not merely to keep it in repair and protect it from damage ; he is expected also to see that it is not placed at the disposal of those who desire to use it in com- mitting murder or in destroying other people's property. What- ever controversy may arise as to the power of Congress to pro- THE NATIONAL POLICE POWER 383 hibit or restrict under certain circumstances the shipment in interstate commerce of commodities which are legitimate and wholesome and are destined for legitimate and wholesome uses, there ought to be no serious doubt about the congressional authority to keep "the arteries of interstate commerce from being employed as conduits for articles hurtful to the public health, safety, or morals." 1 The police regulations thus enacted by Congress to prevent the use of commerce for improper purposes may be grouped under three heads : first, those designed to protect the public morals; second, those aimed to protect the public health: third, those intended to protect the public from deception and fraud. Each of these groups may be considered briefly. 1. Acts Under the Commerce Clause Protecting Public Morals, (a) Exclusion of Lottery Tickets: It would be difficult to point to any problem about which the moral judgment of the American people has changed so radically and in so short a time as it has in respect to lotteries. During the first few decades of our history lotteries were looked upon as perfectly proper forms of private enterprise, and even as useful fiscal agencies for augmenting the revenue of the state and nation. 2 At the present time lotteries are thoroughly and almost universally discredited ; and rigorous provisions prohibiting them are to be found on the statute books and even in the constitutions of a great majority of the states. 3 In 1895 Congress lent its aid to the cause of the suppression of lotteries by passing an act which prohibited the introduction or the carriage of lottery tickets in the United States mails or in interstate commerce. 4 This interesting statute was apparently passed with two purposes in view. One purpose was the desire to strike a blow indirectly, through the power of Con- gress over interstate commerce and the mails, at an evil over which the constitution of the United States gave Congress no direct authority. A second purpose was to prevent the anti- 1 This apt phrase is borrowed from the brilliant article by Senator Knox on Development of the Federal Power to Regulate Commerce. See 17 Yale Law Jour. 135 (1908). 2 An elaborate account of this is to be found in an article by A. R. Spof- ford, Lotteries in American History, Annual Rep. of Amer. Hist. Assoc, 1892. 3 An exhaustive analysis of these state provisions and the cases constru- ing them is to be found in Horner v. United States, (1893) 147 U. S. 449, 13 S. C. R. 409, 37 L. Ed. 237. At present probably every American state forbids them. 17 R. C. L. 1212. 4 March 2, 1895, 28 Stat, at L. 963. This now forms Sec. 237 of the criminal code of the United States. March 9, 1909, 35 Stat, at L. 1136. 384 MINNESOTA LAW REVIEW lottery statutes of the various states from being rendered inef- fective by permitting the introduction of lottery tickets into the states through interstate commerce and the mails, channels be- yond the reach of the police power of any state legislature. It was not until 1903 that the Supreme Court of the United States passed upon the constitutionality of the Lottery Act. 5 So important and difficult did the court regard the problems involved that it had the case argued three times before rendering its final decision, and then decided it by a vote of five to four. Some of tha most distinguished members of the American bar appeared on the brief attacking the statute. Two distinct questions were raised in this case : first, are lottery tickets commodities or articles of commerce within the meaning of the constitution; second, granted that they are, does the power which Congress possesses to "regulate" commerce include the power to prohibit commerce in such commodities? The court answered both these questions in the affirmative. It decided, first, that lottery tickets are articles of commerce, and, second, that their exclusion from interstate commerce is a proper exercise of the power to regulate that commerce. While it is unnecessary to the present discussion to comment upon the first of these questions, it will be interesting to examine briefly the reasons which led the majority of the court to this second conclusion. "In the first place," declared the court, speaking through Mr. Justice Harlan, "in determining whether regulation may not under some circumstances properly take the form or have the effect of prohibition, the nature of the interstate traffic which it was sought by the act of March 2, 1895, to suppress, cannot be overlooked." Then follow the views of the court upon the menace of lotteries. Quoting from one of its previous deci- sions, 3 it asserted that "Experience has shown that the common forms of gambling are comparatively innocuous when placed in contrast with the widespread pestilence of lotteries. The former are confined to a few persons and places, but the latter infests the whole community; it enters every dwelling; it reaches every class ; it preys upon the hard earnings of the poor ; it plunders 5 The Lottery Case (Champion v. Ames), (1903) 188 U. S. 321, 23 S. C. R. 321, 47 L. Ed. 492. This case involved only the validity of the exclusion of lottery tickets from interstate commerce ; their exclusion from the mails had been sustained in earlier decisions. See infra pp. 386-387 and note 7. 6 Phalen v. Virginia, (1849) 8 How. (U. S.) 163, 168, 12 L. Ed. 1030. THE NATIONAL POLICE POWER 385 the ignorant and simple." The second step in the court's argu- ment is that Congress by virtue of its plenary power to regulate commerce among the states may "provide that such commerce shall not be polluted by the carrying of lottery tickets" unless some constitutional restriction can be found to stand in the way. "What clause," inquires Mr. Justice Harlan, "can be cited which, in any degree, countenances the suggestion that one may, of right, carry or cause to be carried from one state to another that which will harm the public morals?" The only possible clause of the constitution which might be so invoked is that which forbids the deprivation of any person's liberty without due process of law. "But surely it will not be said to be a part of anyone's liberty, as recognized by the supreme law of the land, that he shall be allowed to introduce into commerce among the states an element that will be confessedly injurious to the public morals. . . It is a kind of traffic which no one can be entitled to pursue as of right." In the third place, the court disposes of the contention that the Lottery Act, by establishing regulations of the internal affairs of the several states, violated the Tenth Amendment, which reserves to the states or to the people all powers not delegated to the United States. The court held, to begin with, that this contention overlooks the fact' that the Lottery Act is a regulation of commerce and that the power to regulate commerce is specifically given to Congress by the constitution. But, aside from that, the act does not purport to suppress the traffic in lottery tickets which is carried on entirely within the limits of a state, but only that traffic which is interstate. Further- more, instead of invading the proper field of police regulation and usurping the powers of control over the morals of the people of the state — "Congress only supplemented the action of those states — perhaps all of them — which, for the protection of the public morals, prohibit the drawing of lotteries, as well as the sale or circulation of lottery tickets, within their respective limits. It said, in effect, that it would not permit the declared policy of the states, which sought to protect their people against the mis- chiefs of the lottery business, to be overthrown or disregarded by the agency of interstate commerce. We should hesitate long before adjudging that an evil of such appalling character, carried on through interstate commerce, cannot be met and crushed by the only power competent to that end. We say competent to that end, because Congress alone has the power to occupy, by legislation, the whole field of interstate commerce." 386 MINNESOTA LAW REVIEW After noticing as precedents or analogies some of the other instances in which congressional regulations of commerce have taken the form of prohibition, — namely, the prohibition of the interstate transportation of diseased cattle, the prohibitions com- prising the Sherman Anti-Trust Act, and the prohibition resulting from the operation of the Wilson Act of 1890, which subjected to state police control interstate shipments of liquor upon their arrival within the state — the court takes particular pains to make clear the limited scope of this important decision. This case does not at all establish the right of Congress to "exclude from commerce among the states any article, commodity, or thing, of whatever kind or nature, or however useful or valuable, which it may choose, no matter with what motive. . .■ ." The court will consider such arbitrary exclusions from inter- state commerce only when it is necessary to do so. "The whole subject is too important, and the questions suggested by its. con- sideration are too difficult of solution to justify any attempt to lay down a rule for determining in advance the validity of every statute that may be enacted under the commerce clause. We decide nothing more in the present case than that lottery tickets are sub- jects of traffic among those who choose to sell or buy them; that the carriage of such tickets by independent carriers from one state to another is therefore interstate commerce ; that under its power to regulate commerce among the several states Congress — subject to the limitations imposed by the constitution upon the exercise of the powers granted — has plenary authority over such commerce, and may prohibit the carriage of such tickets from state to state ; and that legislation to that end, and of that char- acter, is not inconsistent with any limitation or restriction imposed upon the exercise of the powers granted to Congress." The Lottery Case was decided by a divided court with four justices dissenting. The dissenting opinion, written by Chief Justice Fuller, was based on the conviction of the minority that lottery tickets were not articles of commerce and that, even if they were, the power to regulate interstate' commerce does not carry with it the absolute power to prohibit the transportation of articles of commerce. It was pointed out that when the court held that exclusion of lottery tickets from the mails was a proper exercise of the power of Congress over the postal system it had been expressly said that Congress did not have the power to ex- clude from transportation in interstate commerce articles which THE NATIONAL POLICE POWER 387 it might properly exclude from the mails. 7 This dissent is also interesting because it specifically states that Congress does not have as extensive power over interstate commerce as it does over foreign and Indian commerce. "There is no reservation of police power or any other to a foreign nation or to an Indian tribe, and the scope of the power is not the same as that over interstate; commerce." Consequently the instances in which Congress has excluded various articles from importation or from traffic with the Indian tribes do not serve as precedents for similar restric- tions upon interstate commerce. 8 The decision in the Lottery Case has been discussed at length because it was in a sense a pioneer decision, because it has had a profound influence upon the subsequent development of the na- tional police power, and because, in spite of Mr. Justice Harlan's warning against making unwarranted deductions from it, it has been regarded by many as establishing a doctrine regarding the power of Congress' to prohibit various kinds of interstate com- merce which is far more revolutionary than it was the expressed purpose of the court to sanction. It is quite as important to keep clearly in mind the things which the Lottery Case does not hold as it is to remember the things which it does. In the first place, it does not hold that Congress has the same power to exclude articles from interstate commerce that it has to exclude them from importation in foreign commerce. It already has been sug- gested that this view was urged upon the court by counsel for the government, but that the decision carefully avoided any expression of opinion regarding it. 9 In the second place, it does not hold that Congress may exclude anything from interstate commerce except those commodities the distribution of which menaces the public health, morals, or safety. Finally, it does not hold that Congress has the power to exclude harmless and legiti- mate commodities or transactions from interstate commerce merely because such exclusions would result in a needed or de- sirable protection to the public health, safety, or morals. It does not, therefore, establish a' precedent for the recently invalidated Child-Labor Law. It merely upholds the exclusion of such com- 7 In re Rapier. (1892) 143 U. S. 110, 12 S. C. R. 374, 36 L. Ed. 93. Ex parte Jackson, (1877) 96 U. S. 727, 24 L. Ed. 877. 8 The Lottery Case is severely criticized in an article by W. A. Suther- land, Is Congress a Conservator of the Public Morals? (1904) 38 Amer, Law Rev. 194. 9 See first section of this article, 3 Minnesota Law Review 301. 388 MINNESOTA LAW REVIEW modities as are themselves by their nature and effects a menace to the public welfare. (b) Exclusion of Obscene Matter: The use of the power of Congress to regulate commerce for the purpose of suppressing the circulation of obscene literature or pictures dates back to the year 1842. 10 However, this early statute merely forbade the im- portation of obscene matter into this country from abroad. As time went on the scope of this legislation was expanded to include within its prohibitions not only obscene literature and prints but also contraceptive devices, drugs, and information. 11 But it was not until 1897 that Congress finally penalized the distribution of such literature and articles through the channels of interstate commerce. 12 With some slight modifications, this statute forms a part of the present criminal code of the United States. 13 The act contains the two fairly distinct types of prohibition already in the earlier statutes. In the first place, it makes it a crime to deposit with any common carrier for the purpose of interstate transportation any obscene literature, pictures, images, or articles. In the second place, it excludes from interstate commerce in the same way all articles or drugs designed to prevent conception or to produce illegal abortions and all literature or advertisements containing contraceptive information or telling where the articles or information may be secured. It is quite clear that the purpose of this legislation was to protect the public morals and not to protect interstate commerce. Certainly that commerce is in no greater danger of destruction, loss, or interference from the transportation of obscene literature than it is from the transportation of Bibles. In passing these laws Congress aimed to prevent interstate commerce from being used as a medium for distributing articles or printed matter which it regarded as morally degrading. While the Supreme Court of the United States has never passed squarely upon the constitutionality of this legislation, it has cited with approval the decision of a lower federal court which held it valid, 14 so that the constitutional soundness of such 10 Act of August 30, 1842, 5 Stat, at L. 562, Sec. 28. ii Act* of March 2, 1857, 11 Stat, at L. 168; March 3, 1873, 17 Stat, at L. 598 ; March 3, 1883, 22 Stat, at L. 489 ; October 3, 1913, 38 Stat, at L. 194. i 2 Act of February 8, 1897, 29 Stat, at L. 512. 13 March 4, 1909; 35 Stat, at L. 1138, Sec. 245. 14 Hoke v. United States, (1913) 227 U. S. 308, 33 S. C. R. 281. 57 L. Ed. 523. THE NATIONAL VOUCH POWER 389 use of the commerce power may be said to have passed into the realm of settled law. That part of the statute which forbids the transmission through interstate commerce of contraceptive ar- ticles or information was the first to be subjected to judicial scrutiny, and its validity was sustained by the United States district court in the case of United States v. Popper. 15 The statute was attacked primarily upon the ground that Congress was without constitutional authority to pass it, since it dealt with the internal affairs of the states and invaded, therefore, the field of legislative authority reserved to the states by the Tenth Amend- ment. The court disposed of the contention with a confident directness and brevity of argument that is in striking contrast to the labored treatment which the principle involved usually re- ceived in other cases. The power to regulate commerce "includes power to declare what property or things may be the subjects of commerce." The power of Congress to prohibit commerce in j certain commodities with the Indian tribes has long been recog- I nized. 16 In the License Cases Chief Justice Taney asserted that the power of Congress to regulate the commerce with foreign nations conferred the authority to "prescribe what articles of merchandise shall be admitted and what excluded," and also de- clared that the power to regulate interstate commerce was equal in scone to the power to regulate foreign commerce. 17 It follows, therefore, that under its power over interstate commerce Con- gress has the power to prohibit the transportation of articles designed for immoral use. It is interesting to notice that, while the result reached in the Popper case has been regarded as correct, the theory upon which the court relied in reaching that result has been tacitly if not openly discredited. That theory is that Congress may exclude things from interstate commerce because it may exclude them from foreign and Indian commerce ; and it has already been made clear 18 not only that the Supreme Court in deciding the Lottery Case refused to make any use of the argument that the power of Congress over foreign and interstate commerce is the same, but also that a growing body of legal opinion has been won over to the view that the two powers are quite different in scope. No is (1899) 98 Fed. 423. ic Citing United States v. Hollidav, (1866) 3 Wall. (U. S.) 407, 18 L. Ed. 182. it (1847) 5 How. (U. S.) 577, 12 L. Ed. 256. 18 Supra, p. 387. 390 MINNESOTA LAW REVIEW other case has been found in which the reasoning of the court in this case has been followed. That portion of the act of 1897 relating to the exclusion of obscene literature from interstate commerce was held constitu- tional in a case in the United States circuit court of appeals in 19 14 19 Th e opinion in this case does not call for extended com- ment. The contention that congressional authority does not extend to the prohibition of commodities from interstate com- merce was met by the citation of the cases in which the Supreme Court had upheld the power of Congress to prohibit the inter- state transportation of lottery tickets, diseased cattle, and women for immoral purposes. The argument that the statute violated the First Amendment by abridging the freedom of the press was disposed of with the succinct remark that "we think that the free- dom of the press has enough to answer for without making it a protecting shield for the commission of crime." (c) The White Slave Act: In 1910 Congress enacted the famous Mann Act, which bore the title, "An Act Further to Regulate Interstate and Foreign Commerce by Prohibiting the Transportation Therein for Immoral Purposes of Women and Girls, and for Other Purposes." 20 Here again Congress was not protecting interstate commerce from any dangers, direct or in- direct, which menaced that commerce ; the safety and efficiency of interstate commerce is not dependent upon the private morality of the passengers on interstate trains. The purpose of the statute was to strike a blow at the white slave traffic by refusing to allow interstate commerce to be used any longer as a means of assisting those who promote the nefarious system of commercialized vice. The Mann Act was held constitutional by the Supreme Court in 1913 in the case of Hoke v. United States. 21 The statute was attacked on the ground that it violated the privileges and im- munities of citizens of the United States by denying free right of passage in interstate commerce ; that it was a perversion of the power of Congress to regulate interstate commerce by exceeding unduly the proper scope of that power; and on the ground that, it contravened the Tenth Amendment by invading the legitimate domain of the police power of the state's in an attempt to regulate the private morals of the people. 19 Clark v. United States, (1914) 211 Fed. 916. 20 June 25, 1910. 36 Stat, at L. 825. 21 227.U. S. 308, 35 S. C. R. 281, 57 L. Ed. 523. THE NATIONAL POLICE POWER 391 In answer to the first objection, the court denied that any person enjoys a constitutionally protected right to use interstate commerce for the furtherance of immoral designs. "The con- tention confounds things important to he distinguished. It urges a right exercised in morality to sustain a right to be exercised in immorality. ... It is misleading to say that men and women have rights. Their rights cannot fortify or sanction their wrongs; and if they employ interstate transportation as a facility of their wrongs, it may be forbidden to them to the extent of the act of June 25, 1910, and we need go no further. . . ." The court also disposed of the other contentions by declaring the act to be a proper exercise of the power to regulate commerce. This being the case its effect on the normal scope of state police power is quite irrelevant. The court alluded in rather sweeping terms to the police power which Congress may legitimately exer- cise through its control over commerce: "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. This is the effect of the decisions; and surely if the facility of interstate transportation can be taken away from the demoraliza- tion of lotteries, the debasement of obscene literature, the con- tagion 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, and, more insistently, of girls. . . . "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 regulations." While the opinion of Mr. Justice McKenna in the Hoke case rests upon the same principle as that upon which the Lottery Case was decided, the language used in certain portions above quoted is broad enough in its implications to sanction the doctrine that the power to regulate interstate commerce may take the form of prohibition not merely when such prohibition is neces- sary to prevent the distribution of commodities or the consum- mation of transactions in themselves definitely injurious to the public health, morals, or safety, but it may also take the form of prohibition, regardless of the character of the things excluded, 392 MINNESOTA LAW REVIEW when such prohibition will contribute substantially to the national welfare. It is not surprising, therefore, to find Mr. Justice McKenna one of the four who dissented from the opinion of the majority in the case in which the federal Child-Labor Law was held invalid ; 22 for his opinion in the Hoke case reflects the view that Congress has broad authority to use the power to regulate interstate commerce in any manner which will "promote the general welfare, material and moral." (d) Exclusion of Prize Fight Films: In 1912 Congress en- acted a law excluding from foreign and interstate commerce and the mails all prize fight films or pictures. 23 This was, of course, merely another attempt to keep the postal service and commerce from serving as distributing agencies for goods which Congress regarded as demoralizing in effect. The only portion of this act which has thus far been attacked in the courts is that which prohibits the importation of the ob- jectionable films from abroad. This was upheld by the United States Supreme Court in 1915 in the case of Weber v. Freed. 2 * In this case the court contented itself with the briefest possible comment on the argument that Congress had exceeded its dele- gated powers and had invaded the domain of state police legis- lation ; comment which culminated in the statement, "But in view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction of foreign articles recognized and enforced by many previous decisions of this court, the contentions are so devoid of merit as to cause them to be frivolous." While the court gave no hint of what its attitude would be toward the question of the validity of the provision of the act forbidding the shipment of prize fight films in interstate commerce, the act is so obviously identical in purpose and con- stitutional principle with the Lottery Act, the Obscene Literature Act, and the White Slave Act, as to leave no doubt whatever regarding its constitutionality. 25 22 Hammer v. Dagenhart, (1918) 247 U. S. 251, 38 S. C. R. 529, 62 L. Ed. 1101. 23 Act of July 31, 1912, 37 Stat, at L. 240. 24 239 U. S. 325, 36 S. C. R. 131, 60 L. Ed. 308. 25 In two cases involving the validity of this law, Weber v. Freed, (1915) 224 Fed. 355, United States v. Johnson, (1916) 232 Fed. 970, the lower fed- eral courts argued that Congress could exclude the films from foreign com- merce because its power to exclude objectionable articles from interstate commerce had beenso frequently sustained. Such an argument leaves little room for doubt as to the views of these courts on the question of the validity of excluding the films from interstate commerce. After the efforts which have been made from time to time to prove that the power of Congress to THE NATIONAL POLICE POWER 393 2. Protection to Public Health. Congress has exercised a national police power by virtue of its authority to regulate inter- state commerce nowhere more frequently and nowhere with more general public approval than in the enactment of laws de- signed to close the channels of commerce to impure, adulterated, or unhealthful products and to the possible breeders and carriers of disease. By far the greater portion of the rather voluminous legislation of this type which has been placed on the federal statute books has provoked neither serious discussion regarding its constitutionality nor actual litigation. And while in a few instances these laws have been squarely attacked in the courts, and decisions sustaining their constitutionality have been ren- dered, there have been other cases in which the court has found opportunity to give evidence of its approval of such legislation only in some collateral action. It is appropriate to the purpose of this article to consider only the more interesting and important of these laws and the cases construing them, rather than to attempt an exhaustive compilation. It seems natural to allow them to fall into two general classes : first, the acts excluding from interstate commerce impure, unwholesome, or adulterated food or drugs ; and, second, the acts to prevent the spread through the channels of interstate commerce of disease, infec- tion, or parasites. (a) Exclusion of Impure, Unwholesome, or Adulterated Food or Drugs: The forerunners of the more recent acts exclud- ing these objectionable commodities from interstate commerce are the laws forbidding the importation of such commodities from abroad. This power Congress has exercised since 1848. In that year it passed an act "to prevent the importation of spurious and adulterated drugs" and to provide a system of inspection to make the prohibition effective. 20 Such legislation guarding against the importation of unhealth fully adulterated food, drugs, or liquor has been on the statute books ever since. 27 In 1887 the importation by Chinese of smoking opium was pro- regulate interstate commerce is as broad as its power over foreign com- merce, it is interesting to see the court in the Johnson case arguing the other way and urging that "the constitutional power of Congress over commerce extends, not only to interstate, but to foreign commerce, and what it may do with respect to the one it may do with respect to the other." 26 Act of June 26, 1848, 9 Stat, at L. 237. 27 See the following acts : March 1, 1899, 30 Stat, at L. 951 ; Mav 25. 1900, 31 Stat, at L. 196; March 2, 1901, 31 Stat, at L. 930; June 3, 1902, 32 Stat. at L. 296; March 3, 1905, 33 Stat, at L. 874; June 30, 1906, 34 Stat, at L. 684. 394 MINNESOTA LAW REVIEW hibited, 2S and subsequent statutes passed in 1909 29 and 1914 30 made it unlawful for any one to import it. In 1897 Congress forbade the importation of any tea "inferior in purity, quality, and fitness for consumption" as compared to a legal standard. 31 The constitutionality of this provision was attacked in the courts, but the act was sustained by the Supreme Court in an opinion which has become one of the leading cases establishing the power of Congress to prohibit the importation of commodities. 32 Ultimately Congress began to exclude from interstate com- merce also various types of adulterated and unwholesome food and drug products. The earlier laws of this kind were not very comprehensive. In 1891 an act was passed which provided for the inspection of all live cattle destined for slaughter and intended for export or for shipment in interstate commerce, and the in- spection of such cattle after slaughter, if that was considered necessary ; and cattle or carcasses found to be unsound or diseased were not allowed to be shipped in interstate or foreign com- merce. 33 However, the shipment of cattle or meat which had not been inspected at all was not forbidden ; a fact which put very obvious limitations upon the scope and effectiveness of the act. In 1902 a statute was passed forbidding interstate com- merce in all viruses, serums, toxins, antitoxins, and the like, "ap- plicable to the prevention of the diseases of man," except when 28 Act of February 23, 1887, 24 Stat, at L. 409. 29 Act of February 9, 1909, 35 Stat, at L. 614. 30 Act of January 17, 1914, 38 Stat, at L. 275. The Supreme Court up- held this statute in Brolan v. United States, (1915) 236 U. S. 216, 35 S. C. R. 285, 59 L. Ed. 541. The court said: "The entire absence of all ground for the assertion that there was a want of power in Congress for any reason to adopt the provision in question is so conclusively foreclosed by previous decisions as to leave no room for doubt as to the wholly unsubstantial and frivolous character of the constitutional question based on such contention." si Act of March 2, 1897, 29 Stat, at L. 605. 32 Buttfield v. Stranahan, (1904) 192 U. S. 470, 498, 24 S. C. R. 349, 356, 48 L. Ed. 525, 536. The conclusiveness with which the court settled the case will be apparent from the following excerpt from Mr. Justice White's opin- ion : "Whatever difference of opinion, if any, may have existed or does exist concerning the limitations of the power [to regulate commerce], resulting from other provisions of the Constitution, so far as interstate commerce is concerned, it is not to be doubted that from the beginning Con- gress has exercised a plenary power in respect to the exclusion of merchan- dise brought from foreign countries ; not alone directly by the enactment of embargo statutes, but indirectly as a necessary result of provisions contained in tariff legislation. It has also, in other than tariff legislation, exerted a police power over foreign commerce by provisions which in and of them- selves amounted to the assertion of the right to exclude merchandise at discretion." 33 Act of March 3, 1891, 26 Stat, at L. 1089. THE NATIONAL POLICE POWER 395 such commerce is carried on by persons holding licenses from the Department of Agriculture, and except when the products mentioned conform to standards of purity and effectiveness established by the department. 24 A similar law was passed in 1913, applicable to serums used for domestic animals. 35 How- ever, in 1906, Congress approached in earnest the problem of stopping the distribution and sale of impure food and drugs in so far as its power to regulate interstate commerce gave it authority to do so ; and in that year it passed two comprehensive and far-reaching statutes known as the Pure Food Act 30 and the Meat Inspection Act. 37 It is unnecessary to discuss in detail the provisions of these acts. The Pure Food Act excludes from interstate commerce all adulterated and misbranded food and drugs. Its definitions of the terms "adulterated" and "misbranded" are broad enough to include practically all unwholesome food and drug products and those fraudulently compounded or labeled. It seems clear that Congress had two purposes in mind in passing the Pure Food Act : one was to "protect the health of the people by pre- venting the sale of normally wholesome articles to which have been added substances poisonous or detrimental to health," the other was to "protect purchasers from injurious deceits by the sale of inferior for superior articles." 38 Without attempting to decide which, if either, of these purposes was paramount in the congressional mind, it is entirely proper to regard the act as one which aims to protect the health of the nation. After the decision in the Lottery Case, it would hardly be expected that the question of the constitutionality of the Pure Food Act would prove difficult of solution. Several of the lower federal courts disposed of the question by reference to the authority of that case, 39 and in the two cases in which the validity of the act was touched upon by the Supreme Court such validity seems to have been assumed rather than established by elaborate 34 Act of July 1, 1902, 32 Stat, at L. 728. 35 Act of March 4, 1913, 37 Stat, at L. 832. •"6 Act of June 30. 1906, 34 Stat, at L. 768. 3 " Act of June 30, 1906, 34 Stat, at L. 674. 38 From the opinion of the court in Hall-Baker Grain Co. v. United States. (1912) 198 Fed. 614. 39 Shawnee Milling Co. v. Temple, (1910) 179 Fed. 517 ; United States v. 420 Sacks of Flour, (1910) 180 Fed. 518; United States v. Seventy-four Cases of Grape Juice, (1910) 181 Fed. 629. For an elaborate discussion of the purpose and validity of the Act of 1906, with citation of cases, see Thorn- ton. Pure Food and Drugs, (1912) Part II, Ch. II. 396 MINNESOTA LAW REVIEW argument. In the first of these' cases, The Hipolite Egg Co. v. United States, 40 the question arose whether the provisions of the act authorized the confiscation of adulterated food after it had reached its destination and was still in the original package. That there was no doubt in the mind of the court as to the validity of the law is evidenced by the language used in uphold- ing the right of confiscation claimed by the government. The court said : "In other words, transportation in interstate com- merce is forbidden to them [the adulterated products], and, in a sense, they are made culpable as well as their shipper. It is clearly the purpose of the statute that they shall not be stealthily put into interstate commerce and be stealthily taken out again upon arriving at their destination and be given asylum in the mass of property of the state." In the case of McDermott v. Wisconsin 41 the point at issue was whether the provisions of a Wisconsin statute relative to the labeling of food products con- flicted with the federal law. While the constitutionality of the Pure Food Act was not squarely attacked, the Supreme' Court took occasion to express itself clearly upon that point. It said : "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 injurious to the public health outlaws of such commerce and to bar them from the facili- ties and privileges thereof. . . . The object of the statute is to prevent the misuse, of the facilities of interstate commerce in conveying to and placing before the consumer misbranded and adulterated articles of medicine or food." The Meat Inspection Act, as its name suggests, provides an elaborate system of government inspection of meat before and after slaughter and during the process of packing, as well as of the premises on which these processes are carried on, and for- bids the shipment in interstate or foreign commerce of meat or meat products not so inspected. While applicable to a somewhat different set of conditions, it is quite clear that this statute is the same in purpose and rests upon exactly the same constitu- tional principles as the Pure Food Act. The validity of the act has never been questioned before the United States Supreme Court. 40 (1911) 220 U. S. 45, 30 S. C. R. 364. 55 L. Ed. 364. 4i (1913) 228 U. S. 115, 33 S. C. R. 431, 57 L. Ed. 754. THE NATIONAL POLICE POWER 397 (b) Exclusion to Prevent the Spread of Disease, Infection, or Parasites: Congress has imposed quarantine regulations upon foreign and interstate commerce to prevent the spread of human disease, diseases of livestock, and diseases and pests which attack- plant and tree life. The more interesting and important of these acts may he briefly mentioned. It is hardly within the scope of this article to allude to the numerous statutes whereby Congress has sought to prevent the introduction of human disease into this country through the channels of foreign commerce. 42 During serious epidemics laws have sometimes been passed to prevent the spread of disease from state to state by imposing restrictions upon the freedom of passage in interstate commerce. Thus in 1800 the President was authorized by law to take such measures as might be neces- sary to prevent the spread of cholera, yellow fever, smallpox, and the plague. 43 Much more numerous have been the statutes aimed to pre- vent the spread of animal diseases through the channels of commerce. By the act of 1800 the President was given power to suspend entirely for a limited time the importation of any class of animals when necessary to protect animals in this country from diseases. 44 In 1884 the exportation or shipment in inter- state commerce of livestock having any infectious disease was forbidden; 45 in 1903 power was conferred upon the Secretary of Agriculture to establish such regulations to prevent the spread of such diseases through foreign or interstate commerce as he might consider necessary ; 46 in 1905 the same official was specifically authorized to lav an absolute embargo or quarantine upon all shipments of cattle from one state to another when the public necessity might demand it. 47 While the Supreme Court has held unconstitutional such federal quarantine regu- lations of this sort as have been made applicable to intrastate shipments of livestock, on the ground that federal authority 42 For existing regulations see Corap. Stat. 1918, Sees. 9150-9182. See article by Edwin Maxey, Federal Quarantine Laws, (1909) 43 Araer. Law Rev. 382. « Act of March 27, 1890, 26 Stat, at L. 31. 44 Act of August 30, 1890, 26 Stat, at L. 416. 45 Act of May 29, 1884, 23 Stat, at L. 31. « Act of February 2, 1903, 32 Stat, at L. 791. 47 Act of March 3, 1905, 33 Stat, at L. 1264. 398 MINNESOTA LAW REVIEW extends only to foreign and interstate commerce, 48 the general validity of this type of regulation has been tacitly assumed. 49 A statute of 1905 forbade the transportation in foreign and interstate commerce and the mails of certain varieties of moths, plant lice, and other insect pests injurious to plant crops, trees, and other vegetation. 50 In 1912 a similar exclusion of diseased nursery stock was made effective, 51 while by the same act, and again by an act of 1917, 52 the Secretary of Agriculture was invested with the same powers of quarantine on interstate com- merce for the protection of plant life from disease as those above described for the prevention of the spread of animal disease. All of this legislation has apparently gone unattacked in the courts, but no doubt can possibly exist as to the congressional authority to enact it. 3. Protection of the Public Against Fraud. In concluding the treatment of this general type of national police regu- lation under the commerce clause, some instances may be mentioned in which Congress has excluded commodities from commerce in order to protect the public from fraud and decep- tion. These statutes are included for the sake of logical completeness rather than because they contribute anything new to the constitutional principles already discussed. •There is probably no question that the act of 1902 excluding from commerce food and dairy products falsely branded as to the state in which they were made or produced 53 was designed to prevent frauds upon the consumer rather than to protect him from any menace to his health. Butter made in Ohio does not become unwholesome because its label falsely states that it was made in Illinois ; but the statute proceeds on the assumption that the purchaser has a right to know where it really was made. As has already been suggested, when Congress passed the Pure Food Act of 1906 54 it desired not only to protect the public health but also to protect the public from fraud, by making it possible for persons who receive food or drug products through foreign or interstate commerce to be reasonably sure of knowing 48 111. Cent R. Co. v. McKendree, (1906) 203 U. S. 514, 27 S. C. R. 153, 51 L. Ed. 298. 49 As in Reid v. Colorado, (1902) 187 U. S. 137, 23 S. C. R. 92, 47 L. Ed. 108, where the Act of May 29, 1884, supra, was construed and applied. 50 Act of March 3, 1905, 33 Stat, at L. 1269. 51 Act of August 20, 1912, 37 Stat, at L. 315. 52 Act of March 4, 1917. 39 Stat, at L. 1165. 53 Act of July 1, 1902, 32 Stat, at L. 632. 54 Supra, note 36. THE NATIONAL POLICE POWER 399 what they were getting. To this end the statute was made to include detailed provisions regarding the adequate and honest labeling or branding of food or drugs, and adulterations and false markings were forbidden even though the products might be perfectlv harmless and healthful. The provisions of the act, aimed at fraudulent brands and labels, were further strength- ened by the enactment in VH2 of an important amendment which stipulated that drugs should be held to be "misbranded" if the "package or label shall bear or contain any statement, design, or device regarding the curative or therapeutic effect of such article or any of the ingredients or substances contained therein, which is false and fraudulent."'"' An effective blow was thus struck at the advertising methods of the purveyors of "quack" medicines and nostrums. A still later amendment to the same act struck at a different sort of fraud by requiring that the net weight of the contents be marked on packages of food or drugs.-' Various other statutes have been passed to deny the privi- leges of commerce to other kinds of fraudulent products. Among these may be mentioned the act excluding from commerce "falsely or spuriously stamped articles of merchandise made of gold or silver, or their alloys," 57 the act excluding adulterated or misbranded insecticides and fungicides, 58 and the recent Grain Standards Act"'" excluding all grain unless inspected and found to be of standard grade. None of this legislation calls for ex- tended comment. When one considers the wide scope of the police power which Congress has exercised by closing the channels of com- merce to commodities and transactions which menace the public morals, health, and welfare, it is quite natural to let the highly important and salutary purposes which Congress has furthered by this legislation obscure the precise — and quite limited — methods by which Congress accomplished these ends. From the fact that Congress has excluded from commerce articles which if distributed and consumed would prove dangerous to the public health, it has been an easy step to conclude that Congress might 55 Act of August 23. 1912, 37 Stat, at L. 416. This amendment was ren- dered necessary bv the decision in United States v. Johnson, (1911) 221 U S 488, 31 S". C". R. 627, 55 L. Ed. 823, which held that the word "mis- branded" as used in the Act of 1906 did not apply to false statements as to the curative properties of drugs. 56 Act of March 3, 1913. 37 Stat, at L. 732. ■'- Act of June 13. 1906. 34 Stat, at L. 260. 58 Act of April 26. 1910. 36 Stat, at L. 331. 59 Actof August 11, 1916, 39 Stat, at L. 482. 400 MINNESOTA LAW REVIEW exclude from commerce anything, regardless of its character or intended use, if by using such exclusion as a club or penalty there might result a still more adequate protection of the public health. Whether or not it is logically possible to infer the existence of this broader national police power from the cases which have thus far been discussed — and this has proved to be a highly controversial question — there is small reason to believe that the courts by which those cases were decided expected or desired any such inferences to be drawn from them. All that it is necessary to infer from the statutes and decisions thus far reviewed is that under its power to regulate interstate commerce Congress may properly be charged with the responsibility of seeing that the commerce so committed to its care is not used as a "conduit" for the distribution of injurious products or as a facility for the consummation of injurious transactions. III. Regulations Barring the Use of Interstate Commerce . For the Evasion or Violation of State Police Regulations It will be noted that in the statutes discussed in the above section the articles or transactions which were barred out of interstate commerce were those which Congress itself regarded as injurious to the public welfare. A problem which has pre- sented far greater difficulties both for Congress and the courts has been the problem of how to deal with the interstate trans- portation of commodities, such as intoxicating liquors, which Congress, instead of excluding from interstate commerce, has recognized as legitimate articles of that commerce, 60 but which have, at the same time, been regarded by some of the states as so harmful as to warrant the complete prohibition of their pro- duction, sale, and even possession. The problem has taken the form of a dilemma. To allow the individual states at their discretion to exclude from their borders legitimate articles of commerce, or to allow them to decide for themselves what articles of commerce are legitimate and to exclude the others, 60 "By a long line of decisions, beginning even prior to Leisy v. Hardin, (1890) 135 U. S. 100, it has been indisputably determined that beer and other intoxicating liquors are a recognized and legitimate subject of inter- state commerce," Louisville & Nashville R. Co. v. Cook Brewing Co., (1912) 223 U. S. 70, 32 S. C. R. 189, 56 L. Ed. 355. See the exhaustive citation of cases in 12 Corpus Juris 20. THE NATIONAL POLICE POWER 401 would seem to be a reversion to the non-uniform, obstructive, and wholly unsatisfactory system of commercial regulation by the states which it was one of Ihe primary purposes of the framers of the federal constitution to abolish forever. On the other hand, to pour intoxicating liquor through the channels of interstate commerce into a state which is struggling with the already difficult problem of making its prohibition laws effective seems to be very bad policy if not also bad law. It has taxed to the utmost the ingenuity of Congress and, it may be said, of the courts as well, to steer a middle course between the horns of this dilemma ; to avoid forcing liquor down the throats of states which do not want it, without sacrificing the vital principle of uniformity in the regulation of interstate transportation of commodities. The steps in the development of this problem and the various efforts which Congress has made to solve it may properly claim some attention, inasmuch as these efforts may be regarded as exercises of a national police power under the com- merce clause. 1. The Original Package Doctrine. 61 That goods imported from foreign countries do not become subject to the jurisdiction of the individual states so long as they remain in the original packages in which they were shipped and have not been merged in the general mass of the property of the state was settled in 1827.P 2 But when twenty years later the question was presented to the Supreme Court in the License Cases 63 whether a state could prohibit or restrain by the requirement of a license the sale in the original packages of liquor brought in from other states or from abroad the court answered that it could. There was no act of Congress with which the state statutes in question could be said to conflict, and such regulation of interstate shipments of liquor could be held invalid only on the theory that the grant of power to Congress to regulate interstate commerce was exclusive and precluded any state regulation on the same subject even though Congress had not yet exercised its power over it. The leading opinion, which was written by Chief Justice Taney, definitely rejected this theory. 61 This problem is treated in detail in the first of a valuable series of articles by Lindsav Rogers on Interstate Commerce in Intoxicating Liquors Before the Webb-Kenyon Act, (1916) 4 Va. Law Rev. 174. 62 Brown v. Maryland, (1827) 12 Wheat. (U. S.) 419, 6 L. Ed. 678. 63 (1847) 5 How. (U. S.) 504, 12 L. Ed. 256. 402 MINNESOTA LAW REVIEW "The mere grant of power to the general government [declared the chief justice] cannot, upon any just principles of construc- tion, be construed to be an absolute prohibition to the exercise of any power over the same subject by the states. The con- trolling and supreme power over commerce with foreign nations and the several states is undoubtedly conferred upon Congress. Yet, in my judgment, the state may, nevertheless, for the safety or convenience of trade, or for the protection of the health of its citizens, make regulations of commerce for its own ports and harbours, and for its own territory ; and such regulations are valid unless they come in conflict with a law of Congress." The decision in the License Cases reflects not only the "state's rights" constitutional principles of the Supreme Court as then constituted but the very obvious concern of the court at the pros- pect that the prohibition laws which a number of states were beginning to enact should be rendered ineffective by a use of interstate commerce which those states were powerless to prevent. 64 With the abatement of temperance zeal which followed the Civil War, it was more than twenty years before another grist of state laws purporting to restrain or prohibit the bringing of liquor into the state through the channels of interstate commerce claimed the attention of the Supreme Court. In 1888, however, the court threw consternation into the ranks of the prohibitionists by invalidating an Iowa statute which punished any railroad company for knowingly bringing into the state for any other person any intoxicating liquors without a certificate that the consignee was authorized to sell them. This was the case of Bowman v. Chicago and Northwestern Ry. Co. 05 It held that the statute was an attempt to exercise "jurisdiction over persons and property within the limits of other states" and, furthermore, "If not in contravention of any positive legislation by Congress, it is nevertheless a breach and interruption of that liberty of trade which Congress ordains as the national policy, by willing that it shall be free from restrictive regulations." The court did not cross any unnecessary bridges in the Bowman case, but merely held that even in the absense of conflicting federal legis- lation a state could not make it a crime to import an article of commerce within its borders. 64 An account of this ante-bellum prohibition movement is given in the Encyclopedia Britannica under Liquor Laws, Vol. XVI, p. 767. See also A. A. Bruce, The Wilson Act and the Constitution, (1909) 21 Green Bag 211. 65 (1888) 125 U. S. 465, 8 S. C. R. 689, 1062, 31 L. Ed. 700. THE NATIONAL POUCH POWER 403 While the friends of prohibition in Congress were still endeavoring to enact some sort of statute which would patch up the havoc wrought by the Bowman case,' 1 " a still greater calamity befell them in the decision of the Supreme Court early in 1890 in the case of Leisy v. Hardin. 01 This case, popularly known as the Original Package Case, overruled the decision in the License Cases™ and held in substance that, even in the absence of con- gressional regulation of the subject, the police power of the state could not be exercised to prohibit the bringing of articles of com- merce into the state and the selling of those articles in the original packages. An article of interstate commerce does not cease to be such until it has either been taken out of the original package or sold in that package; and until it ceases to be an article of interstate commerce it is beyond the reach of the state police power. "Whatever our individual views may lie as to the deleterious or dangerous qualities of particular articles [said the court] we cannot hold that any articles which. Congress recognizes as sub- jects of interstate commerce are not such, or that whatever are thus recognized can be controlled by state laws amounting to regulations, while they retain that character. . . -. To con- cede to a state the power to exclude, directly or indirectly, articles so situated, without congressional permission, is to con- cede to a majority of the people of a state, represented in the state legislature, the power to regulate commercial intercourse between the states, by determining what shall be its subjects, when that power was distinctly granted to be exercised by the people of the United States, represented in Congress, and its possession by the latter was considered essential to that more perfect Union which the Constitution was adopted to create." Now it is perfectly clear that if a state cannot forbid the shipping in of intoxicating liquors from other states and cannot forbid the sale of those liquors in their original packages after they have been shipped in, then state prohibition becomes more or less of a farce. But close scrutiny of the opinion of Chief Justice Fuller in Leisy v. Hardin indicated to the friends of pro- hibition that there might still be a method of bettering this unfor- tunate plight of the prohibition states. Although it was unneces- sary to the decision of the case, the Chief Justice had definitely fiC These efforts are described by Lindsay Rogers, op. cit., second article, 4 Va. Law Rev. 294. 67 (1890) 135 U. S. 100, 10 S. C. R. 681, 34 L. Ed. 128. 08 Supra, note 63. 404 MINNESOTA LAW REVIEW suggested at several points in his opinion that this incapacity of the states to protect themselves against interstate shipments of liquor was due to the fact that Congress had not given the states permission to exert any authority over such shipments. 69 The inference from these dicta was perfectly plain : i. e., Congress might pass an act bestowing upon the states the power to pass the police regulations applicable to interstate consignments of liquor, which, in the absence of such permission, the court had held them powerless to enact. Congress, under pressure from the temperance forces, proceeded to give the states the desired permission, and the Wilson Act 70 became law within a year after the decision in Leisy v. Hardin. 2. Congressional Permission to States to Protect Themselves from Certain Types of Interstate Commerce. The Wilson Act provided that "intoxicating liquors .... transported into any State or Territory or remaining therein .... shall upon arrival .... be subject to the operation .... of the laws of such State or Territory enacted in the exercise of its police power .... in the same manner as though . . . . produced in such State or Territory, and shall not be exempt therefrom by reason of being introduced therein in original pack- ages or otherwise." The Supreme Court promptly sustained the constitutionality of the act in the case of In re Rahrer. 71 It is impossible to enter upon an extended discussion of the highly 69 135 U. S. at page 109 : "Hence, inasmuch as interstate commerce, con- sisting in the transportation, purchase, sale and exchange of commodities, is national in its character, and must be governed by a uniform system, so long as Congress does not pass any law to regulate it, or allowing the states so to do, it thereby indicates its will that such commerce shall be free and un- trammelled." At page 110: "If the importation cannot be prohibited without the con- sent of Congress, when does property imported from abroad, or from a sister state, so become part of the common mass of property within a state as to be subject to its unimpeded control?" At page 114: "It cannot, without the consent of Congress, express or implied, regulate commerce between its people and those of the other States of the Union in order to effect its end, however desirable such a regulation might be." At page 119: "... . the states cannot exercise that power [to regulate commerce among the states] without the assent of Congress " At page 123 :".... the responsibility is upon Congress, so far as the regulation of interstate commerce is concerned, to remove the restriction upon the State in dealing with imported articles of trade within its limits, which have not been mingled with the common mass of property therein, if in its judgment the end to be secured justifies and requires such action." The italics are the author's. 70 Act of August 8, 1890, 26 Stat, at L. 313. 71 (1891) 140 U. S. 545, 11 S. C. R. 865, 35 L. Ed. 572. THE NATIONAL POUCH POWER 405 controversial questions which came up in this case. 7 - The statute was attacked primarily on the grounds, first, that in passing it Congress had delegated to the states a portion of its authority over interstate commerce ; and second, that it established a regu- lation of that commerce which was non-uniform in character. The court denied that the states had been given by the act any power to regulate interstate commerce. "Congress did not use terms of permission to the state to act, but simply removed an impediment to the enforcement of the state laws in respect to imported packages in their original condition, created by the absence of a specific utterance on its part," and it is entirely proper for Congress to "provide that certain designated subjects of interstate commerce shall be governed by a rule which divests them of that character at an earlier period of time than would otherwise be the case." The court also denied that the act estab- lished a non-uniform regulation of commerce. Congress has "taken its own course and made its own regulation, applying to these subjects of interstate commerce one common rule, whose uniformity is not affected by variations in state laws in dealing with such property." There is every reason to suppose that Congress in passing the Wilson Act believed that it was giving the states adequate authority to protect themselves from interstate shipments of liquor. It was not until the case of Rhodes v. Iowa 13 was decided in 1898 that it became clear that the enactment of that statute and the decision of the Supreme Court sustaining its validity were but empty victories for the prohibition cause. In that case the Supreme Court decided that when the Wilson Act provides that intoxicating liquors brought into a state shall be subject to the state police power "upon arrival," the word "arrival" means, not arrival at the state line, but arrival in the hands of the one to whom they were consigned ; and until such arrival they are exempt from state control or interference. 74 Under 'this 72 See the second article by Lindsay Rogers, op. cit, 4 Va. Law Rev. 288 ; also A. A. Bruce, op. cit., note 64. The article by Judge Bruce is a vigorous criticism of the Rahrer case. 73 (1898) 170 U. S. 412, 18 S. C. R. 664, 42 L. Ed. 1088. This case re- versed the decision of the Iowa supreme court in State v. Rhodes, (1894) 90 Iowa 496, 58 N. W. 887, 24 L R. A. 245, which held that under the Wilson Act shipments of liquor from other states became subject to the police power of the state as soon as they crossed the boundary line of the state. 74 The decision in Rhodes v. Towa had been foreshadowed bv the case of Scott v. Donald (1897) 165 U. S. 58, 17 S. C. R. 265, 41 L Ed 632— see also Vance v. Vandercook Co., ( 1898) 170 U. S. 438, 18 S. C. R. 674, 42 L. Ed. 1100, — which held that the South Carolina dispensary system could not ex- 406 MINNESOTA LAW REVIEW construction it is apparent that the Wilson Act, instead of giving the states the virtual right to prohibit the importation of liquor by allowing them to confiscate it as soon as it reached the state line, merely gave them the right to forbid the disposition or sale of the liquor after the interstate carrier had actually delivered it to the consignee. By such a limitation on the scope of the prohibitive laws of the state so many opportunities for the evasion of those laws were opened up as to render the Wilson Act a very inconsequential gain to the temperance cause. It may be noted in passing that in 1902 a statute practically identical in its terms with the Wilson Act was passed subjecting to the police legislation of the states, upon their arrival therein, interstate shipments of oleomargarine and other imitations of butter. 75 This statute has never attracted much attention and it presents no new constitutional problem. 3. Making Articles Shipped in Interstate Commerce zvith Intention to Violate State Laws Outlaws of That Commerce. (a) The Webb-Kenyon Act: No sooner had the Wilson Act been emasculated by the decision in Rhodes v. Iowa than agita- tion was begun in Congress for legislation which would actually give the prohibition states the protection against interstate ship- ments of liquor which that measure had been vainly supposed to provide. The problem, however, was growing increasingly diffi- cult. Grave doubts were raised regarding the constitutionality of the various proposals for such legislation, but after consider- able use of the trial and error method the Webb-Kenyon Bill was passed by Congress in 1913. 76 It was vetoed by President Taft on the advice of Attorney-General Wickersham, on the ground that it was unconstitutional; 77 but it was promptly passed over his veto. The title of the statute described it as "An Act Divest- ing Intoxicating Liquors of Their Interstate Character in Certain Cases," and it proceeded to do this by prohibiting (without attach- ing any penalty) the shipment in interstate commerce of intoxi- cating liquors "intended, by any persons interested therein, to be received, possessed, sold, or in any manner used" in violation of tend its monopolistic control of the liquor traffic in that state to the total ex- clusion of liquor from other states. See the third article by Lindsay Rogers, op. cit, 4 Va. Law Rev. 355, dealing with The Narrowing of the Wilson Act. 75 Act of May 9, 1902, 32 Stat, at L. 193. The steps leading up to the passage of this act are set forth in the second article by Lindsay Rogers, op. cit., 4 Va. Law Rev. 288. 76 Act of March 1, 1913, 37 Stat, at L. 699. 77 The veto message and the opinion of the attorney-general are found in Sen. Doc. 103, 63rd Congress, 1st Session. THE NATIONAL POUCH POWER 407 the law of the state of their destination. Hitherto the states had been unable to exclude shipments of liquor from other states because such action amounted to an unconstitutional prohibition of interstate commerce ; under the Webb-Kenyon Act the exclu- sion of such liquors was made lawful by outlawing those ship- ments from interstate commerce and thereby depriving them of that federal protection from state regulation which articles oi interstate commerce enjoy. The Webb-Kenyon Act was held constitutional by the Supreme Court in 1 ( >17 in the case of Clark Distilling Co. v. Western Maryland Ry. Co.'* The court pointed out that under the doctrine of the Lottery Case ro and Hoke v. United States 80 no doubt remained as to the power of Congress to exclude intoxi- cating liquor from interstate commerce altogether. The objection "raised to the act was not, therefore, "an absence of authority to accomplish in substance a more extended result than that brought about by the Webb-Kenyon Law, but .... a want of power to reach the result accomplished because of the method resorted to. 7 ' This method was not unconstitutional on the ground that it delegated power to the state to prohibit interstate commerce in intoxicating liquors (the argument on which Presi- dent Taft's veto was based) and thereby permitted the non- uniform regulation of such commerce; the court declared that the argument as to the delegation of power to the states rested upon a misconception: ". . . the will which causes the pro- hibitions to be applicable is that of Congress, since the application of state prohibitions would cease the instant the act of Congress ceased to apply." In regard to the alleged non-uniformity of commercial regulation the court declared: . . • . there is no question that the act uniformly applies to the conditions which call its provisions into play— that its provisions apply to all the states — so that the question really is a complaint as to the want of uniform existence of things to which the act applies, and not to an absence of uniformity in the act itself." Having disposed of these objections the court could "see no reason for saying that although Congress, in view of the nature and char- acter of intoxicants had power to forbid their movement in inter- state commerce, it had not the authority so to deal with the subject as to establish a regulation (which is what was done by -s (1917) 242 U. S. 311, 2,7 S. C. R. 180, 61 L. Ed. 326. "'•' Supra, p. 386. 80 Supra, p. 390. 408 MINNESOTA LAW REVIEW the Webb-Kenyon Law) making- it impossible for one state to violate the prohibitions of the laws of another through the chan- nels of interstate commerce." 81 (b) The Lacey Act: In 1900 Congress passed a statute mak- ing it unlawful to ship from one state or territory to another state or territory any animals or birds killed in violation of the laws of the state. 82 It is quite clear that Congress was here using its power over interstate commerce for the purpose of co-operating with the states in the protection of wild game and birds. In fact, the first section of the statute declared frankly that its purpose was to "aid in the restoration of such birds in those parts of the United States adapted thereto where the same have become scarce or extinct." It should be noticed that this act differs in theory from the Webb-Kenyon Act, because the articles which are here outlawed from interstate commerce are not articles which when distributed through that commerce will menace the public welfare. They are outlawed because of their illegal origin and possession and because Congress desires to prevent inter- state commerce from being used as an outlet or place of refuge for such illegal commodities. By passing the Webb-Kenyon Act Congress refused to allow itself to become an accessory before the fact, by declining to place the facilities of interstate commerce at the disposal of those who are about to violate the prohibition laws of the states ; by passing the Lacey Act Congress refused to become an accessory after the fact, by declining to place those facilities at the disposal of those who have just violated the state law by affording them a means of disposing of their unlawful possessions. This difference, however, should have no bearing upon the question of congressional power to pass the Lacey Act, and the only court which has passed upon its validity has held it constitutional on the authority of the Rahrer case upholding the Wilson Act. 83 81 The Webb-Kenyon Act and the Clark Distilling Co. case have been widely discussed in the legal periodical literature. The following articles may be mentioned here : D. O. McGovney, The Webb-Kenyon Law and Beyond, 3 Iowa Law Bui. 145 ; S. P. Orth, The Webb-Kenyon Law Deci- sion, 2 Corn. Law Quar. 283 ; T. R. Powell, The Validity of State Legisla- tion Under the Webb-Kenyon Law, 2 So. Law Quar. 112; Lindsay Rogers, The Webb-Kenyon Decision, 4 Va. Law Rev. 558. Other articles are cited in the notes to Decisions of the Supreme Court of the United States on Constitutional Questions, T R. Powell, 12 Amer. Polit. Science Rev. 19 et seq. S2 Act of May 25, 1900, 31 Stat, at L. 188. 83 Rupert v. United States, (1910) 181 Fed. 87. THE NATIONAL POLICE POWER 409 4. The Reed "Bone-Dry" Amendment. The introduction for discussion at this point of the Reed Amendment by its popular title rather than hy a caption indicating' the principle on which it is based is a confession by the author of his inability to discover what that principle is, if there be any. This act was passed as an amendment to the Postoffice Appropriation Act of 1917. 84 The pertinent provision reads as follows : "Whoever shall order, purchase, or cause intoxicating" liquors to be transported in inter- state commerce, except for scientific, sacramental, medicinal, and mechanical purposes, into any state or territory the laws of which state or territory prohibit the manufacture or sale therein of intoxicating" liquors for beverage purposes shall be punished as aforesaid." 85 A casual reading of this statute might lead one to assume that Congress had merely supplemented the Webb-Kenyon Act by punishing those who make interstate shipments of liquor which, in order to divest them of their interstate character, that act had prohibited without attaching a penalty. What the Reed Amendment really does is to impose, under penalty of the federal law, a "bone-dry" policy in the matter of shipments of liquor from other states upon any state which prohibits merely the manufacture and sale of intoxicants for beverage purposes. In other words, the amendment forbids the shipment of liquor even for personal use into a state which may permit the personal use of liquor but forbids its manufacture and sale. The Supreme Court recently upheld the validity of the Reed Amendment in the case of United States v. Hill} 6 It was urged S4 Act of March 3, 1917, 39 Stat, at L. 1069. The same act also pro- hibited sending liquor advertisements through the mails into states which forbade such advertising. See J. K. Graves, The Reed "Bone Dry"' Amend- ment, 4 Va. Law Rev. 634. 85 Italics are the author's. 86 (1919) 248 U. S. 420, 39 S. C. R. 143. In McAdams v. Wells Fargo & Co. Express, (1918) 249 Fed. 175, the law was enforced against the carrier and the court said : "It is quite evident that Congress, in adopting said act, intended to aid the states in the enforcement of their prohibition laws It may be that Congress builded better than it knew in passing the Act of March 3, 1917 ; but there is no doubt that it prohibits the shipment of liquor in interstate commerce for beverage purposes into the dry parts of the state of Texas wherein the sale of liquor is prohibited by the state law. though intended only for personal use." In United States v. Mitchell, (1917) 245 Fed. 601, the court, while not declaring the Reed Amendment unconstitu- tional, held that the transportation of liquor for personal use in one's own baggage is not "commerce" and does not therefore fall within the prohibi- tions of the act. The view is, of course, in conflict with the decision of the Supreme Court in the Hill case. 410 MINNESOTA LAW REVIEW upon the court, and the lower court so held, that the prohibition of the act should be construed to apply only to such shipments of liquor as were in violation of the law of the state into which they went. But the Supreme Court refused to narrow the meaning of the act in this way. The illegality of the forbidden shipments of liquor does not depend upon the law of the state, as it does in the case of the Webb-Kenyon Act, but upon the law of Con- gress. While Congress may exercise its authority over interstate commerce "in aid of the policy of the state, if it wishes to do so, it is equally clear that the policy of Congress acting independently of the states may induce legislation without reference to the particular policy or law of any given state." It is well estab- lished that in certain cases congressional regulation of commerce mav take the form of prohibition, and this' is an appropriate case for the exercise of that power. "That the state saw fit to permit the introduction of liquor for personal use in limited quantity in no wise interferes with the authority of Congress, acting under its plenary power over interstate commerce, to make the prohibi- tion against interstate shipment contained in this act. It may exert its authority, as in the Wilson and Webb-Kenyon Acts, having in view the laws of the state, but it has a power of its own, which in this instance it has exerted in accordance with its view of public policy." A brief but vigorous dissenting ■opinion was written by Mr. Justice McReynolds. He expressed his conviction that the Reed Amendment "in no proper sense regulates interstate commerce, but it is direct intermeddling with the states' internal affairs. . . . . to hold otherwise opens possibilities for partial and sectional legislation which may destroy proper control of their own affairs by the separate states .... If Congress may deny liquor to those who live in a state simply because its manu- facture is not permitted there, why may not this be done for any suggested reason — e. g., because the roads are bad or men are hanged for murder or coals are dug? Where is the limit? . . . . The Reed Amendment as now construed is a congressional fiat imposing more complete prohibition wherever the state has assumed to prevent manufacture and sale of intoxicants." There is nothing in the majority opinion in the Hill case to throw any light upon Mr. Justice McReynolds' question, "Where is the limit ?" The law classifies the states and prohibits the ship- ment of liquor for beverage purposes into the states comprising THE NATIONAL POUCH POWER 411 one of the classes. But there is nothing to indicate that the court regarded the constitutionality of the law as in any way contingent upon the intrinsic reasonableness of that classification. Emphasis is laid upon the fact that Congress could exclude all liquor from interstate commerce, and the suggestion that the Reed Amend- ment depends for its prohibitive force upon the existence of any particular type of state law relating to liquor is repudiated. The court does suggest that Congress apparently thought it would be a good thing to impose the "bone-dry" rule upon all states having more moderate prohibition laws, hut this is far from saying that the statute would not have been an equally legitimate exercise of the commerce power if the purpose of Congress had been something quite remote from the suppression of the liquor traffic. If Congress has full power to stop all interstate traffic in liquor, but is under no constitutional obligation to prohibit the shipment of liquor into all states merely because it prohibits such shipments into some, being free to make the application of that prohibition depend upon the existence or non-existence of certain conditions in the states, then may not Congress by turn- ing the interstate spigot on or off, as the needs of the case may demand, exert a pressure on the states which will lead them to comply with the congressional wishes in matters over which Congress has no direct authority? It is not impossible that Con- gress has stumbled inadvertently into an unexplored field of police regulation, although there is small probability that such an indirect method of exerting police power would ever prove par- ticularly alluring. Whatever may be the constitutional implications of the Reed Amendment and the case upholding it, it is impossible to classify it with any of the types of national police regulation which have been thus far discussed. It is not an exclusion from interstate commerce o,f a commodity which Congress regards as injurious to the national health or morals, because Congress does not exclude all liquor from such commerce, but only that destined for certain states. Nor is it an act designed to co-operate with the states in the adequate enforcement of their police regulations relating to the liquor traffic, because it overrides the wishes of many of those states and imposes on them a more rigorous prohi- bition than they desire. It embodies neither the principle of positive national control over the interstate shipments of liquor nor the principle of local option or state home rule embodied 412 MINNESOTA LAW REVIEW in the Wilson and Webb-Kenyon Acts. It proceeds upon the somewhat curious theory that Congress ought to impose its own brand of prohibition not upon all the states but only upon those states which have seen fit to adopt another sort of prohibition. From the ground thus far covered it is apparent that the police power which Congress may exercise in protecting and promoting interstate commerce, substantial as that power has been shown to be, has been overshadowed by the police power resulting from the efforts of Congress to keep that commerce from being used to distribute objectionable commodities or to promote objectionable transactions. The goods or transactions which may thus be excluded from interstate commerce may be objectionable either because they are dangerous to the public morals, health, or welfare, or because they are to be used in violation of the legitimate police regulations of the state. The question which remains for consideration is whether or not a still more extensive national police power may properly be derived from the commerce clause by allowing Congress to deny the privileges of interstate commerce to commodities which are harm- less in their nature and the use to which they are to be put, but which are produced under conditions which Congress deems objectionable. This problem will be dealt with in the concluding section of this article. 452 MINNESOTA LAW REVIEW THE NATIONAL POLICE POWER UNDER THE COMMERCE CLAUSE OF THE CONSTITUTION* IV. Regulations Denying the Privileges of Interstate Commerce to Harmless Goods Produced under Objectionable Conditions — The Federal Child Labor Law In passing the Keating-Owen Child Labor Law 1 Congress plunged, probably with some misgivings, into what was expected to prove a new field of national police regulation. The act for- bade the shipment in interstate commerce of the products of mines and factories in which, within thirty days prior to their shipment in such commerce, child labor had been employed. It was an entirely novel exercise of the power to regulate com- merce. Even those who deny that the unique character of the act created any serious constitutional difficulty readily agree that it stands in a class by itself as an exercise of congressional authority. Hitherto Congress had exercised a national police power under the commerce clause in two general ways : fijsi, to protect interstate commerce from injury and obstruction; second, by refusing to allow it to be used to further the distribution of obnoxious commodities or the consummation of injurious de- signs. Wherever Congress had resorted to prohibitions of inter- state commerce the prohibition had been justified upon the harm- ful nature of the thing excluded; harmful either to commerce itself or harmful in the use to which it was put. The goods excluded by the Child Labor Law, however, were themselves entirely harmless and legitimate in character, and harmless and legitimate also in the use to which they were to be put; their harmfulness consisted in the fact that they were produced under conditions injurious to the public welfare. Like an illegitimate child, they were made to bear the taint of the evil which brought them into existence; the disability which attached to them was created not because Congress in any way objected to having that kind of goods distributed through interstate commerce but *Continued from 3 Minnesota Law Review 412. 1 Act of September 1, 1916, 39 Stat, at L. 675, Chap. 432. THE NATIONAL POLICE POWER 453 because it wished to make it unprofitable to employ children in the manufacture of any kind of goods. The doctrine of the Child Labor Law would have extended enormously the scope of the national police power under the commerce clause by placing within congressional regulation the conditions .under which any articles of interstate commerce are produced. The history of the movement for a federal child labor law shows that movement to have been in the main a trial and error search for constitutionality. The most dangerous opposition to such a law did not come from the friends of child-labor, a group which grows constantly smaller and more silent; nor did it come from the "states rights" advocates, who, on grounds of policy and expediency, objected to the placing of child labor under uniform national control— for few intelligent persons are now prepared to deny that there is small hope for an effective suppression of the child labor curse in the divergent legislation of forty-eight states. On the contrary, the opposition which counted most came from those who, while sympathising with the objects of the law, honestly doubted that there was any sound constitutional basis upon which a child labor law under the com- merce clause could rest; who, in the apt phrase of one of their number, could not convince themselves "that 'accroachment of power' is expedient when benevolent, and that, though a child is entitled to protection, the constitution is not." 2 This was ap- parent from the very outset. The first federal child labor bill was introduced into the Senate in 1906 by Senator Albert J. Beveridge of Indiana. This pioneer bill forbade any interstate carrier to transport the products of any mine or factory in which children under fourteen years of age were employed; and to make the bill effective the management of any establishment desiring to ship goods in interstate commerce was compelled to give the common carrier a statement that no such children were employed in its plant. 3 In a brilliant speech extending over three 2 Green. The Child Labor Law and the Constitution, 111. Law Bui., April, 1917, p. 6. 3 The portions of this bill which are of interest in this connection are as follows : "Be it enacted . . . That six months from and after the passage of this act no carrier of interstate commerce shall transport or accept for transportation the products of any factory or mine in which children under fourteen years of age are employed or permitted to work, which products are offered to said interstate carrier by the firm, person, or corporation owning or operating said factory or mine, or any officer or 454 MINNESOTA LAW REVIEW days Senator Beveridge set forth the need for such legislation and defended its constitutionality. 4 The most distinguished legal talent in the Senate was drawn into this debate ; and it was plain to see that with but few exceptions their views of its validity ranged from skepticism to the clear conviction that it was un- constitutional. 5 The bill never became law, and the Judiciary Committee of the House of Representatives to which it was referred made a report setting forth its belief that the bill was clearly invalid. 6 With the retirement of Mr. Beveridge from the Senate, the active efforts of congressmen to secure federal legis- lation upon the problem of child labor for the time being ceased. The Keating-Owen bill was the successor to the Beveridge bill. As introduced into the House, it forbade the shipment in interstate commerce of goods produced in whole or in part by the labor of children under fourteen years of age. This bill was not wholly satisfactory to the National Child Labor Committee which was sponsoring it, because placing the prohibition merely upon child-made goods narrowed considerably the scope of the act; though there was a belief that a stronger argument could be made for its constitutionality than for one broader in agent or servant thereof, for transportaton into any other state or territory than the one in which said factory is located. "Sec. 2. That no carrier of interstate commerce shall transport or accept for transportation the products of any factory or mine offered it for transportation by any person, firm, or corporation which owns or operates such factory or mine, or any officer, agent, or servant of such person, firm, or corporation, until the president or secretary or general manager of such corporation or a member of such firm or the person owning or operating such factory or mine shall file with said carrier an affidavit to the effect that children under fourteen years of age are not employed in such fac- tory or mine." The full text of this bill may be conveniently found at page 56 of the supplement to vol. XXIX, Annals of the American Acad- emy, etc., (1907). 4 Cong. Rec. vol. 41, pp. 1552-1557, 1792-1826, 1867-1883. 5 It was probably doubt as to the constitutionality of the Beveridge bill which led Senator Lodge to introduce a rival bill (S. 6730) on December 5, 1906, which provided : "That the introduction into any state or territory or the District of Columbia, or shipment to any foreign country, of any article in the manufacture or production of which a minor under the age of fourteen years has been engaged is hereby prohibited." The second section applied a similar prohibition to goods made by children between fourteen and sixteen years, except those made by "any minor between the ages of fourteen and sixteen years to whom has been granted a certificate" by various school authorities "testifying to the fact that he or she is able to read and write the English language." This bill was referred to the Committee on Education and Labor, but it seems never to have attracted much notice or discussion. 6 House Rep. No. 7304, 59th Cong., Second Session. Part of the argu- ment of this committee is quoted in Watson, Constitution, I, pp. 532-534. THE NATIONAL POLICE POWER 455 scope. When the bill came before the Committee on Interstate Commerce in the Senate it was changed into the form in which it was finally enacted, a form which made it a far more effective law. 7 In this form it forbade not merely child-made goods but the products of any mine or factory in which children were em- ployed. The President signed the bill September 1, 1916, and by its terms it became effective September 1, 1917. Almost im- mediately a bill was filed in a federal district court in North Carolina by a father on behalf of himself and his two minor sons asking for an injunction against the enforcement of the act. The district court held the act unconstitutional, 8 and an appeal was taken to the Supreme Court of the United States. On June 3, 1918, the Supreme Court handed down a five to four decision invalidating the law. 9 Few questions have arisen in recent years in our constitutional law upon which the professional opinion of the country has been more evenly divided. Few questions have called forth on both sides abler or more convincing arguments. Discussion of the question had been kept up intermittently during the dozen years between the introduction of the Beveridge bill and the decision of the Supreme Court upon the constitutionality of the Keating- Owen Act ; and that decision, rendered as it was by an almost evenly divided court with a vigorous dissenting minority, called 7 An account of the legislative history of the bill is found in Pamphlet No. 265 of the National Child Labor Committee (1916). The relevant portion of this act is as follows : "Be it enacted .... That no producer, manufacturer, or dealer shall ship or deliver for ship- ment in interstate or foreign commerce any article or commodity the produot of any mine or quarry, situated in the United States, in which within thirty days prior to the time of the removal of such product there- from children under the age of sixteen years have been employed or per- mitted to work, or any article or commodity the product of any mill, cannery, workshop, factory, or manufacturing establishment, situated in the United States, in which within thirty days prior to the removal of such product therefrom children under the age of fourteen years have been employed or permitted to work, or children between the ages of fourteen years and sixteen years have been employed or permitted to work more than eight hours in any day, or more than six days in any week, or after the hour of seven o'clock postmeridian, or before the hour of six o'clock antemeridian." 8 No opinion was written. This decision was rendered by the same judge who, according to press reports, has recently declared unconstitu- tional the clause of the Revenue Act of Feb. 24, 1919, placing a ten per cent excise tax upon the net profits of businesses employing children. 9 Hammer v. Dagenhart, (1918) 247 U. S. 251, 62 L. Ed. 1101, 38 S. C. R. 529. 456 MINNESOTA LAW REVIEW forth a new grist of opinion. 10 Even now the layman who ap- proaches the problem without definite preconceptions is greatly in danger of experiencing a painful instability of opinion and of finding himself landed finally on the side of the advocate or critic to whose arguments he last gave ear. There would be small justification for the writer to add to the already voluminous literature on the subject another argument for or against the validity of the federal Child Labor Law. How- ever, a discussion of the national police power under the com- merce clause would hardly be complete without some attempt to classify the precise constitutional issues involved in this attempt to extend that power so radically. An effort will be made, therefore, to set forth as plainly and fairly as possible the argu- ments which have been advanced, first by those who have believed the act to be unconstitutional and second by those who have regarded it as valid. In each case the reasoning of the majority and minority, respectively, of the Supreme Court will be briefly summarized as fitting conclusions to the briefs. The Argument Against the Constitutionality of the Law Inasmuch as the constitutionality of a law is to be presumed until disproved, it will be appropriate to present first the argu- ments of those who have attacked the validity of the law. 11 These arguments quite naturally differ a great deal in persuasiveness, in thoroughness of reasoning, and in the emphasis placed upon the different points considered. In spite of this diversity it is possible to melt them all together into a brief composed of three major arguments, which will be considered separately. The writer has made no special effort at originality in setting forth 10 While there are differences between the provisions of the Beveridge bill and the Keating-Owen Act, these differences are largely in the method used to accomplish the legislative purpose and not differences in consti- tutional principle. The fundamental issue of constitutionality seems to be the same in both, and the arguments for and against the measures are applicable to both alike. 11 In addition to the arguments presented in the debate in Congress above referred to (see note 4, supra), the Beveridge bill was criticized on constitutional grounds by the following writers : Bruce, The Beveridge Child Labor Bill and the United States as Parens Patriae, (1907) 5 Mich. Law Rev. 627 ; Maxey, The Constitutionality of the Beveridge Child Labor Bill, (1907) 19 Green Bag 290; Knox, Development of the Federal Power to Regulate Commerce, (1908) 17 Yale Law Jour. 135; Willoughby, Con- stitution, II, Sec. 348; Watson, Constitution, I, pp. 523-534. Before the THE NATIONAL POLICE POWER 457 these arguments, but has attempted to present a sort of com- posite picture made up of all of them, a picture in which, as in the real composite photograph, the details of each component are lost to view, but in which the common characteristics stand out vividly. 1. It Is Not a Regulation of Commerce. It is important to bear in mind that Congress has no power to deal openly and directly with the evil of child labor. It merely has the right to regulate interstate commerce. Therefore, while the federal Child Labor Law was admittedly passed for the purpose of driv- ing child labor out of existence, it was compelled, from the standpoint of constitutional law, to seek justification not as a child labor law but as a regulation of interstate commerce. If it can be shown that the law is not a regulation of interstate com- merce, then its constitutional underpinning collapses and it must be regarded as an attempt by Congress to exercise a power which it does not possess under the constitution. Probably without ex- ception the opponents of the law have built their case around this central and vital point, that it is not a regulation of commerce. The arguments advanced in support of this proposition may be set forth as follows : (a) Not Every Regulation Dealing with Commerce Is a Regulation of Commerce in the Constitutional Sense: The fact that the Child Labor Law is entitled "An Act to Prevent Inter- state Commerce in the Products of Child Labor, and for Other Purposes," coupled with the fact that the thing which the law punishes is not the employment of children, but the shipment in interstate commerce of certain commodities, raises an initial presumption that it is a regulation of commerce. Constitutional Keating-Owen Act was declared invalid, its constitutionality was attacked in the following articles : Green, The Child Labor Law and the Constitu- tion, 111. Law Bui., April, 1917; Gleick, The Constitutionality of the Child Labor Law, (1918) 24 Case and Com. 801 ; Hull, The Federal Child Labor Law, (1916) 31 Pol. Sci. Quar. 519; Krum, Child Labor, (1917) 24 Case and Com. 486. See also the general criticism in Hough, Covert Legisla- tion and the Constitution, (1917) 30 Harv. Law Rev. 801. The decision of the Supreme Court in Hammer v. Dagenhart, supra, note 9, was discussed with approval in the following articles : Berry, The Police Power of Con- gress under Authority to Regulate Commerce, (1918) 87 Cent. Law Jour. 314; Bruce, Interstate Commerce and Child Labor, (1919) 3 Minnesota Law Review 89; Green, Social Justice and Interstate Commerce, (1918) 208 North Amer. Rev. 387; and note, (1919) 2 111. Law Bui. 126; Taft, The Power of Congress to Override the States, (July, 1918) 15 Open Shop Rev. 273. See also editorial (1918) in 86 Cent. Law Jour. 441. 458 MINNESOTA LAW REVIEW phrases must not, however, be construed "with childish literal- ness." It must not be naively assumed that everything which is labeled a regulation of commerce or which in some way affects commerce is a regulation of commerce in the constitutional sense. The extent and nature of the power of Congress over interstate commerce must be interpreted in the light of the purposes for which the power was granted. 12 For instance, the governments of the state and nation enjoy a power of taxation which in "the extent of its exercise is in its very nature unlimited;" 13 yet when the state of Kansas authorized a city to levy a tax for a private and not a public purpose the Supreme Court of the United States declared that the levy was not a tax, merely "because it is done under the forms of law and is called taxation," but was "a decree under legislative forms." 14 In like manner the Child Labor Law is not necessarily a regulation of commerce simply because it is done under the forms of law and is called "a regulation of com- merce." (b) Power to Regulate Interstate Commerce Was Given to Promote and Not to Destroy Commerce : If we had no light whatever upon the purposes for which the power to regulate commerce was given to Congress by the framers of the consti- tution, it would still be reasonable to argue that the power to "regulate" does not include any general power to "destroy" or to "prohibit" commerce. A grant of "the power to regulate neces- sarily implies the existence of the thing to be regulated." 15 Where power has been given to state legislatures or city councils to "regulate" the liquor traffic the courts have held that no au- thority was thereby given to "prohibit" such traffic. 16 It is logical to assume that the power to regulate commerce should be though; of as "a power to regulate acts of commerce so as to promote the good or prevent the evil that might flow from those acts." 17 While it might properly include the power to make all necessary rules to protect commerce and promote its efficiency and to pre- 12 This point is clearly developed by Professor Green, op. cit., 111. Law Bui., note 11, supra. is Loan Association v. Topeka, (1874) 20 Wall. (U.S.) 655; 22 L. Ed. 455. 14 Ibid. 15 Watson, Constitution, I. p. 532, citing State v. Clark, 54 Mo. 17; State v. McCann, 72 Tenn. [4 Lea] 1. 16 Watson, op. cit., p. 532. 17 Green, op. cit., 111. Law Bui. 13. THE NATIONAL POLICE POWER 459 vent the injury to the national welfare which might flow from the acts and transactions of commerce, it cannot be held to include the authority to prohibit commerce in innocent and harm- less commodities. But we are not entirely in the dark as to the purposes for which the "fathers" placed the power to regulate commerce in the hands of Congress. While the debates in the Convention of 1787 do not throw much light on the subject, the whole history of the Confederation as well as the contemporary literature of the period would seem to indicate a hope and desire that Con- gress would bring about freedom of commercial intercourse, freedom which would replace the oppressive and mutually re- taliatory obstructions which emanated from the jealousies of the separate states. There was apparently no thought that Congress was being given power by the new constitution to prohibit commerce in legitimate articles because it disapproved of the local conditions under which they were produced. While the Convention of 1787 went out of its way to forbid in express terms any congressional interference with the importation of slaves prior to 1808, 18 yet it made no effort to prevent Congress from excluding from commerce the products of slave-labor, — an exclusion clearly in line with the Child Labor Law — quite as though it assumed that Congress had no such authority. Cer- tainly it can hardly be believed that either the framers of the constitution or the conventions w r hich ratified it had any idea that they had given to Congress any power under the commerce clause to knife the institution of slavery in the back. It has been forcefully argued that since, prior to the adoption of the constitution, the several states enjoyed full and sovereign power to prohibit commerce with the other states, as any inde- pendent nation might prohibit it, and that since the states gave up their power to Congress and made that power of Congress plenary and exclusive, it must therefore follow that Congress received all the power that the states gave up. 19 Otherwise what became of it? The answer is that it went back into the hands of the people, the same "people" who hold all the other powers of government "not delegated to the United States bv the Con- 18 Art. I, Sec. 9. On this point see Green, op. cit, North Amer. Rev., note 11, supra. 19 Infra, p. 472. 460 MINNESOTA LAW REVIEW stitution" nor "reserved to the States respectively." 20 Indeed, it is quite within reason to suppose that the framers of the con- stitution consciously intended to wipe out of existence entirely any power to prohibit interstate commerce in legitimate com- modities by withdrawing that power from the individual states which had abused it and by failing to confer it upon Congress which might abuse it. (c) In Its Real Purpose and Effect the Law Has Nothing to Do with Interstate Commerce : The contention that the Child Labor Law is not a regulation of interstate commerce in the constitutional sense has been most frequently and cogently grounded upon the fact that the purpose and effect of the act is to prohibit child labor, something quite remote from the act of shipping commodities in interstate commerce. "Its purpose and effect are to benefit children and not to benefit commerce." 21 Thus the statute is looked upon as somehow fraudulent, or mis- branded. This argument is presented in several ways. It has been urged by some that the Child Labor Law is in effect a denial by Congress of the privileges of interstate com- merce as a penalty for doing things of which Congress does not approve but which it has no power to prohibit directly. This has been aptly expressed in this way: "Plainly the reason for the statute must be stated in the first instance in this form : 'The state does not like what you are doing. Therefore it has for- bidden you to do something else — ship certain goods — not be- cause that is in the least degree objectionable, but because the state thinks it can in this way make you so uncomfortable that you will quit employing children." 22 In commenting on the case in which the Supreme Court held the law invalid, ex- President Taft said : "The majority of the court decided that this was an attempt by Congress to regulate the use of child labor in the state. Will any man say that this was not its purpose? It was a congressional threat to the state, 'Unless you make your labor laws to suit us we shall prevent your use of interstate commerce for the sale of your goods.' " 23 In short, when Congress uses its power over commerce as a "club for belaboring persons 20 Constitution of the United States, Amendment X. 21 Green, op. cit, 111. Law Bui., note 11, supra. 22 Ibid. 23 Taft, op. cit., note 11, supra. THE NATIONAL POLICE POWER 461 whose habits it does not approve," 24 its action ought in reason to be regarded as a regulation not of the club but of the thing or person clubbed. Others have laid emphasis in this connection on the fact that the statute is in effect a regulation of manufacturing or produc- tion. It is then pointed out that manufacturing is antecedent to and wholly separate from commerce and transportation and that the authority of Congress extends only to the latter. 25 It is further suggested that the purpose and effect of the act is to regulate the relations between employers and employees who are not themselves engaged in the processes of interstate commerce, and to regulate them in respect to a matter that in no way concerns interstate commerce, — namely, the age of the employee. In the Adair case 26 Mr. Justice Harlan pointed out that a regulation of the relations between master and servant in respect to the membership of employees in a labor union did not bear sufficiently close connection to interstate commerce to be regarded as a legitimate regulation of that commerce. The regulation imposed upon employers by the Child Labor Law is thought to be still less closely related to interstate commerce. It is quite natural that those who attack the Child Labor Law on the ground that it is too remote from interstate commerce to be a legitimate regulation of it should be challenged to show that the law is less a regulation of commerce than the Lottery Act, the Pure Food Act, the White Slave Act, and the other statutes by which Congress has prohibited commerce in various commodities. The friends of the law claim that the only possible distinction between the Child Labor Law and these other acts the validity of which is no longer open to question is that in the one case Congress uses its power over interstate commerce to protect the producer and in the other case to protect the con- sumer. This distinction, it is urged, is wholly irrelevant and immaterial so far as any question of the constitutional limits of 24 Green, op. cit, North Amer. Rev., note 11, supra. 25 The cases usually relied on to support this view are United States v. E. C. Knight Co., (1895) 156 U. S. 1, 39 L. Ed. 325, 15 S. C. R. 249; Kidd v. Pearson, (1888) 128 U. S. 1, 32 L. Ed. 346, 9 S. C. R. 6; In re Greene, (1892) 52 Fed. 104. 26 Adair v. United States, (1908) 208 U. S. 161, 52 L. Ed. 436, 28 S. C. R. 277, 13 Ann. Cas. 764. Professor Goodnow severely criticizes the use of the Adair case as an authority to prove the Child Labor Law not a regulation of commerce. See Social Reform and the Constitution, 87. 462 MINNESOTA LAW REVIEW congressional power over commerce is concerned, since there is nothing in the constitution nor in the decisions of the Supreme Court to indicate that the consumer is any more entitled to pro- tection through any exercise of the commerce power than is the producer. 27 It seems clear that this distinction between regulations which guard the interests of the consumer and those which seek to improve the condition of the producer has been given a promi- nence by writers on both sides of this controversy which has tended to obscure what the opponents of the law regard as the vital distinction between it and the police regulations which Congress has previously enacted under the commerce clause. This distinction is that in the Lottery and White Slave Acts Congress has used its power over interstate commerce to prevent evils which might be said to result in the sense of actual causation from the acts or processes of interstate commerce. "In all of these cases, the introduction of the thing carried into the state is an act of evil tendency. Introducing it contributes to produce evil ; it is a part of a course of action by which evil is consummated." 28 These acts are all "regulations of commerce made with a view to the results that may flow from the commerce regulated; to prevent evils that, unregulated, it might produce, or to promote benefits that, unregulated, it might not produce." 29 But the Child Labor Law does not prevent any evil which can be said to result from the acts or transaction of interstate commerce. The curse of child labor cannot be said to be promoted by the freedom of the employer of children to ship his products in interstate com- merce simply because he might cease to employ children if that freedom were denied to him, any more than it can be said that child labor is promoted by free education because those who now employ children might cease to do so if, because of that, they were denied the right to send their children to the public schools. It cannot be said, therefore, that when Congress passed the Child Labor Law it was preventing the use of interstate commerce as a means of promoting a national evil, since the evil in question is not in any reasonable sense promoted by the uninterrupted flow of interstate commerce. This fact makes clear the distinc- 27 Infra, p. 475. 28 Green, op. cit., North Amer. Rev., note 11, supra. 29 Ibid. THE NATIONAL POLICE POWER 463 tion between this act and the other instances in which Congress has exercised police power under the commerce clause. It would seem that those who regard the Child Labor Law as just as real and thoroughgoing a regulation of commerce as the Lottery Act or the White Slave Act have trod, perhaps un- consciously, the following steps: (1) By passing these regula- tions of commerce, the Lottery Act and so forth, Congress has openly intended to protect the public morals, health, and safety, and has exercised a police power. (2) Therefore Congress en- joys a broad police power in the exercise of which it may set up any type of control over interstate commerce which will result in benefit to the public morals, health, and safety. (3) The exclusion of the output of child labor factories from interstate commerce will result in great good to the nation by safeguarding its children. (4) Therefore the Child Labor Law is a proper exercise of this police power of Congress under the commerce clause and should be regarded with no more suspicion or disfavor than the White Slave Act or the Lottery Act, which have also protected the national health, morals, and general welfare. Now the opponents of the Child Labor Law believe that there is a non sequitur between (1) and (2). It does not follow from the authority of the Lottery Case 30 and the Hoke 31 case that Con- gress has a police power unlimited in scope and limited only in the means available for its exercise. Congress has police power, but only such as can be exercised within the limits of the domain under congressional control — interstate commerce. This police power extends to the suppression of any evil which threatens interstate commerce or arises from or is being consummated by that commerce. Now the evil of child labor does not exist with- in the domain of interstate commerce; it exists where the chil- dren are employed. "The menace in the case of child labor is over and done with when the product is manufactured. . . . The exercise of the police power in prohibiting the use of inter- state transportation for such products will operate of course as a deterrent. But it seems clear that thereby the police power becomes operative outside of the domain of interstate commerce. And beyond the borders of that domain the police power of 30 (1903) 188 U. S. 321, 47 L. Ed. 492, 23 S. C. R. 321. 3i (1913) 227 U. S. 308, 57 L. Ed. 523, 33 S. C. R. 281. 464 MINNESOTA LAW REVIEW Congress, like the king's writ beyond his kingdom, does not run." 32 This is not a matter of inquiring into congressional motives and invalidating a law because those motives were disingenuous. It is purely a question of power. The act fails as a regulation of commerce not because its purpose and effect are to prohibit child labor but because the child labor prohibited has nothing to do with interstate commerce. If interstate railroads employed children, Congress could doubtless forbid the employment of chil- dren in interstate commerce, just as it has prevented cruelty to animals while they are being transported by an interstate car- rier. 33 Such a law would deal with an evil which existed within the domain of interstate commerce and not an evil which is over and done with before the commerce the power to regulate which forms the basis of congressional action begins. The opponents of the Child Labor Law argue further that the extensive and arbitrary power which Congress has used to prohibit foreign commerce in various commodities constitutes no authority for the exercise of a similar power over interstate commerce. The power of Congress over foreign commerce is more extensive than over interstate commerce. Several reasons support this view. In the first place, the commerce clause is not the exclusive source of the power which Congress enjoys over foreign commerce. The power over foreign commerce derived from the commerce clause is supplemented by the power derived from the sovereign authority of the federal government to regu- late its relations with other countries. 34 In the second place, assuming that the word "regulate" used in the commerce clause means the same and bestows the same power upon Congress in regard to both interstate and foreign commerce, nevertheless there are certain constitutional limitations which operate as re- strictions upon congressional power over interstate commerce which do not apply to foreign commerce in the same way. The dissenting opinion of Chief Justice Fuller in the Lottery Case* 5 suggests that the power of Congress over interstate commerce is subject to a limitation growing out of the "implied or reserved power in the states" which would not apply to the regulation of 32 Hull, op. cit, 524, note 11, supra. 33 Act of Mar. 3, 1891, 26 Stat, at L. 833. 34 Willoughby, Constitution, Sees. 64, 66, 374, with cases cited. 35 Note 30, supra. THE NATIONAL POLICE POWER 465 interstate commerce. This amounts to invoking indirectly the Tenth Amendment as a restriction on the power over interstate commerce. It has been intimated elsewhere by the court as well as by other authorities that while the complete prohibitions of foreign commerce would not deprive any one of property with- out due process of law, since no individual has a right to trade with foreign nations, 36 a similar 1 prohibition of interstate com- merce might under many circumstances amount to a denial of due process of law by invading the constitutional right of the citizen to engage in such commerce. In the third place, in spite of numerous dicta in early opinions to the effect that the scope of congressional authority over the two kinds of commerce is identical, there is not a single case, out of all that have afforded an opportunity for such a decision, in which the Supreme Court has decided squarely that it is. 37 In similar manner it is pointed out that the police power which Congress has exercised through its control over the postal system, a power which has been used to exclude from the mails a wide variety of things, does not constitute any authority for the power used to pass the Child Labor Law. In the first place, it is impossible to mention any act by which Congress has actually excluded any commodity from the mails because of the objec- tionable character of the conditions under which it was produced; and in the second place, the power of Congress over the postal system is broader than over interstate commerce, inasmuch as Congress has explicit authority to "establish post offices and post roads, " 3S while in respect to interstate commerce the power given is not to "establish" but to "regulate." It may very properly be argued that no one is deprived of any property right without due process of law by being denied the enjoyment even somewhat arbitrarily of privileges and facilities which Congress may not 36 "As a result of the complete power of Congress over foreign commerce, it necessarily follows that no individual has a vested right to trade with foreign nations which is so broad in character as to limit and restrict the power of Congress to determine what articles of mer- chandise may be imported into this country and the terms upon which a right to import may be exercised. This being true, it results that a statute which restrains the introduction of particular goods into the United States from considerations of public policy does not violate the due process clause of the Constitution." Buttfield v. Stranahan, (1904) 192 U. S. 470, 48 L. Ed. 525, 24 S. C. R. 349. 37 Senator Knox made this statement during the course of the debate in the Senate on the Beveridge bill. Cong. Rec. vol. 41, p. 1879. 38 Constitution of the United States, Art. I, Sec. 8. 466 MINNESOTA LAW REVIEW merely create but may also destroy; whereas he may claim a higher degree of protection for his right to engage in an inter- state commerce which was not in the power of Congress to create but merely to "regulate." 39 The foregoing analysis presents what the writer regards as the more important arguments which have been used to prove that the Child Labor Law is not a regulation of commerce in the constitutional sense. A somewhat extended discussion of the point has seemed desirable, because it is without question the point which has been most hotly debated and which has seemed to the authorities on both sides of the case the most vital issue involved in the whole controversy. 2. It Violates the Tenth Amendment. The Tenth Amend- ment reserves to the states or to the people all powers not dele- gated to the federal government nor prohibited to the states. It has been alleged that the federal Child Labor Law contravenes this amendment. Now if the opponents of the law succeed in establishing their contention that the act is not a regulation of commerce, then it would seem to follow as a matter of course that Congress has passed a law which cannot be justified as an exercise of any delegated power, and such a law becomes ipso facto an invasion of the reserved rights of the states. The argument has not always been put, however, in this conservative form. More than one critic of the law has urged as a more or less separate objec- tion to it that in its purpose and effect it invades the reserved rights of the states and therefore violates the spirit if not the letter of the Tenth Amendment. "It was conceded by all," de- clared ex-President Taft, "that only States could regulate child labor. . . . Can any man fairly say that this was not an effort of Congress, by duress, to control the discretion of the 39 This distinction is emphasized with clearness by Bruce, op. cit., 3 Minnesota Law Review 96, and also by Willoughby, op. cit., Sec. 349. Both writers rely upon the statement of the court in Ex parte Jackson. (1877) 96 U. S. 727, 24 L. Ed. 877: "We do not think that Congress possesses the power to prevent the transportation in other ways, as merchandise, of matter which it excludes from the mails. To give efficiency to its regulations and to prevent rival postal S3 r stems, it may perhaps prohibit the carriage by others for hire, over postal routes, of articles which legitimately constitute mail matter, in the sense in which those terms were used when the Constitution was adopted, consisting of letters, and of newspapers and pamphlets when not sent as merchandise ; but further than this its power of prohibition cannot extend." THE NATIONAL POLICE POWER 467 State intended by the Constitution to be free?" 40 Professor Willoughby regards it as "an attempt upon the part of the Federal Government to regulate a matter reserved to the control of the States." 41 The same view is most emphatically expressed by the Judiciary Committee of the House of Representatives in reporting upon the Beveridge bill. They said : "The lives, health, and property of the women and children engaged in labor are exclu- sively within the power of the States, originally and always be- longing to the States, not surrendered by them to Congress. . The assertion of such power by Congress would destroy every vestige of State authority, obliterate State lines, nullify the great work of the framers of the Constitution, and leave the State governments mere matters of form, devoid of power, and ought Jto more than satisfy the fondest dreams of those favoring cen- tralization of power." 42 While courts have usually refrained from invalidating laws because of their alleged violation of the "spirit" of the constitu- tional prohibitions in cases where. some doubt has existed as to the violation of the letter, attention is called to the fact that one of the important restrictions upon the power of the states and of the federal government to levy taxes has been grounded, not upon any specific clause of the constitution, but upon the essential nature of the federal union. This is the restriction upon the lay- ing by either government of taxes upon the agencies, property, functions, or instrumentalities of the other. 43 While this re- striction has not rested upon any alleged violation of the Tenth Amendment, it has been argued that it would not be unreasonable for the Supreme Court to use it as authority by way of analogy for recognizing the existence of certain restrictions upon the exercise by Congress of its power to regulate commerce when by 40 Taft, op. cit, p. 273, note 11, supra. 41 Willoughby. op. cit., II, Sec. 348 42 Quoted by Watson, op. cit., pp. 532-534. 43 Willoughby, op. cit.. I. Sec. 40. In The Collector v. Day, (1870) 11 Wall. (U.S.) 113. 20 L. Ed. 122. the court said: "It is admitted that there is no express provision in the Constitution that prohibits the general government from taxing the means and instrumentalities of the states, nor is there any prohibiting the states from taxing the means and instrumentalities of that government. In both cases the exemption rests upon necessary implication, and is upheld by the great law of self-pres- ervation ; as any government, whose means employed in conducting its operations, if subject to the control of another and distinct government, can exist onlv at the mercy of that government." See also Green, op. cit., 111. Law Bui. 13. 468 MINNESOTA LAW REVIEW such regulation the essential nature of the federal union in the matter of the distribution of powers is being threatened. 3. It Takes Liberty and Property Without Due Process of Law. Even if it be granted, however, that the Child Labor Law is a regulation of commerce in the constitutional sense and that it is not a violation of the Tenth Amendment, it has still been the object of attack as an act which deprives persons of liberty and property without due process of law. It has already been made clear 44 that any exercise of a national police power must be kept within the limits of the specific restrictions of the Bill of Rights, perhaps the most important of which is the due process clause of the Fifth Amendment. 45 The argument that the act is a violation of the guarantee of due process of law has taken two forms. In the first place, it has been urged that "the right to liberty and property would certainly include the continuance of the right of interstate traffic in goods which were in themselves harmless and innocent." 46 No one can be said to enjoy a property right to ship commodities in interstate commerce when those commodities are harmful or when the shipment itself is an act of evil tendency. But any prohibition placed by Congress upon the right to ship harmless commodities destined for harmless uses constitutes an arbitrary invasion of a property right and is a denial of due process of law. Now those who deny the validity of the Child Labor Law do not agree among themselves that there is a property right to ship goods in interstate commerce. 47 But even assuming that no such right does exist, it is still urged that the law fails of due process. It is well established that any state may prohibit child labor with- out depriving any one of his constitutional rights ; but it is equally well established that Congress cannot directly prohibit child labor under any power it now possesses. Now it is argued that even if the right to ship harmless goods in interstate commerce is one which Congress under the commerce clause might legitimately take away entirely, it would still be a denial of liberty or prop- erty without due process of law for Congress to make the con- tinued enjoyment of the privileges of interstate commerce con- 44 3 Minnesota Law Review 299. 45 Constitution of the United States, Amendment V. 46 Bruce, op. cit.. 5 Mich. Law Rev. 636. 47 See infra, p. 476. THE NATIONAL POLICE POWER 469 tingent upon abandoning a course of action which so far as any possible prohibition by Congress is concerned a person has a per- fect right to pursue. In other words, Congress cannot withdraw a privilege which can be enjoyed only under its permission, for the purpose of making that withdrawal a punishment for doing something which Congress had no direct authority to forbid. Such an exercise of power by Congress rests upon the same principle as a state statute which, while not directly forbidding child labor, forbids those who employ children "to shave, to ride in an auto- mobile, or to have children of their own." 48 It is one thing to prohibit child labor directly; it is another and far different thing to permit the continuance of child labor only on the condi- tion of the forfeiture of a right or privilege shared by all the other members of the community. In Western Union Telegraph Company v. Kansas* 9 the Supreme Court held that the plaintiff company had been denied due process of law by a statute which ' made its admission into the state as a foreign corporation — ad- mission which it was granted the state was under no obligation whatever to allow — contingent upon payment by the company of taxes which the state was without constitutional authority to im- pose. There are other cases in which a similar principle has been applied. 50 It is in the light of the authority of these cases and the reasoning set forth above that the Child Labor Law is be- lieved to work a denial of due process of law. 4. The Majority Opinion of the Supreme Court:' 1 It is unnecessary to dwell at length upon the opinion of the majority of the Supreme Court which held the federal Child Labor Law invalid. That opinion was reasoned with a brevity that was entirely surprising considering the importance of the question involved. It does not allude in any way to the contention of the plaintiff that the act works a denial of due process of law. The decision rested upon two points : first, that the Child Labor Law is * 8 Green, op. cit., 111. Law Bui. 11. The most effective statement of this argument is found in Professor Green's article. 49 (1910) 216 U. S. 1, 54 L. Ed. 355, 30 S. C. R. 190. soHerndon v. Chicago, etc., Ry. Co., (1910) 218 U. S. 135, 54 L. Ed. 970, 30 S. C. R. 633; Harrison v. St. Louis, etc., R. Co., (1914) 232 U. S. 318, 58 L Ed. 621, 34 S. C. R. 333; New York Life Ins. Co. v. Head; (1914) 234 U. S. 149, 58 L. Ed. 332, 34 S. C. R. 879. These cases cited by Green, op. cit., 111. Law Bui. 18. 51 Written by Mr. Justice Day and concurred in by Justices White, VanDevanter, Pitney, and McReynolds. 470 MINNESOTA LAW REVIEW not a regulation of commerce, second, that it violates the Tenth Amendment. The first of these arguments proceeds along familiar lines. The power to "regulate" commerce is the power to "prescribe the rule by which commerce is to be governed," and does not include the right to "forbid commerce from moving and thus destroying it as to particular commodities." The cases in which Congress has prohibited interstate commerce in certain commodities have all rested "upon the character of the particular subjects dealt with and the fact that the scope of governmental authority, state or national, possessed over them is such that the authority to pro- hibit is as to them but the exertion of the power to regulate. . . . In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results." The Child Labor Law does not, however, regulate transportation, but aims to standardize child labor. The goods shipped are harmless and the fact that they may be intended for interstate commerce does not make them articles of that commerce at the time they were produced. There is no force in the argument that the law pre- vents unfair competition between states with child labor laws of different standards. So also there are many conditions which give certain states advantages over others, but Congress has no power to regulate local trade and commerce for such a purpose. The act violates the Tenth Amendment. "The grant of au- thority over a purely federal matter was not intended to destroy the local power always existing and carefully reserved to the states in the Tenth Amendment to the Constitution." Under the law Congress "exerts a power as to purely local matters to which the federal authority does not extend. The far reaching result of upholding the act cannot be more plainly indicated than by point- ing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the power of the states over local matters may be elimi- nated, and thus our system of government be practically de- stroyed." The Argument for the Constitutionality of the Law The constitutionality of the Child Labor Law has probably been discussed more frequently and at greater length by its THE NATIONAL POLICE POWER 471 friends than by its enemies. 52 An analysis of the arguments in support of the law indicates that they clash squarely at all vital points with the arguments which have just been set forth. They may, therefore, be grouped under the same three headings. 1. It Is a Regulation of Commerce in the Constitutional Sense. The friends of the Child Labor Law have bent their efforts with special care to proving that it is a regulation of commerce in the constitutional sense, a task which has of course involved disprov- ing the arguments of their opponents that the law is not such a regulation. This task has been approached in a wide variety of ways and from many different points of view. The writer believes, however, that these arguments may all be subsumed under three major propositions, which if established would prove the point at issue. These will be treated in order. (a) The Power to Regulate Interstate Commerce Includes the Pozver to Prohibit Entirely Shipment in Such Commerce of Specified Persons and Property : In the first place, the power to prohibit is not incompatible with the power to regulate commerce. Even if it is true that "the power to regulate implies the existence of the thing regulated," 53 it is equally true that "the power to prescribe the rule by which commerce is carried on does not negative the power to prescribe that certain commerce shall not be carried on." 54 As Mr. Justice Holmes puts it, "Regulation 52 Before the Supreme Court annulled the law, the following dis- cussions had appeared supporting its constitutionality: Goodnow, Social Reform and the Constitution, (1911) 80; MacChesney, Constitutionality of a Federal Child Labor Law. (1915) The Child Labor Bui. IV, p. 155; Parkinson, Brief for the Keating-Owen Bill, (1916) The Child Labor Bui., IV, pt. 2, p. 219; Constitutional Prohibitions of Interstate Com- merce, (1916) 16 Col. Law Rev. 367; The Federal Child Labor Law, (1916) 31 Pol. Sci. Quar. 531 ; Precedents for Federal Child Labor Legislation, (1915) The Child Labor Bui., IV, p. 72; Troutman, Con- stitutionality of a Federal Child Labor Law, (1914) 26 Green Bag 154; see also note, The Use of the Power over Interstate Commerce for Police Purposes, (1917) 30 Harv. Law Rev. 491. Since the decision in Hammer v. Dagenhart, supra, the opinion of the majority has been criticized in the following articles: Gordon, The Child Labor Law Case, (1918) 32 Harv. Law Rev. 45; Jones, The Child Labor Decision, (1918) 6 Cal. Law Rev. 395; Parkinson, The Federal Child Labor Decision, (1918) The Child Labor Bui., (1918) VII, p. 89; Powell, The Child Labor Decision, (1918) The Nation, vol. 107, p. 730; The Child Labor Law, the Tenth Amendment and the Commerce Clause, (1918) 3 So. Law Quar. 175; see also note, (1918) 27 Yale Law Jour. 1092, and (1918) 17 Mich. Law Rev. 83. 53 Note 15, supra. 54 Powell, op. cit, So. Law Quar. 472 MINNESOTA LAW REVIEW means the prohibition of something, and when interstate com- merce is the matter to be regulated I cannot doubt that the regu- lation may prohibit any part of such commerce that Congress sees fit to forbid." 55 In the second place, there is evidence to indicate that the f ramers of the constitution intended the power given to Congress to regulate interstate commerce to include the power to prohibit such commerce in certain cases. This is shown, first, by the fact that they intended to give Congress all the power over inter- state commerce that the states had previously had and this in- cluded the power to prohibit such commerce. 56 It is shown, sec- ondly, that they specifically denied to Congress the right to pass any law prior to 1808 which should prohibit the "migration or im- portation" of slaves, 57 a denial of power entirely superfluous un- less the power to prohibit such commerce existed, in the absence of such denial. In the third place, the power to regulate foreign commerce has always been held to include the power to place prohibitions upon such commerce, 58 and the commerce clause gives to Congress the same power over interstate as over foreign commerce. The friends of the Child Labor Law do not infer from this that Con- gress could necessarily impose the same restrictions upon inter- state commerce as upon foreign commerce; but they assert that whatever difference there may be exists not because the power exercised is the power to regulate in the one case but not in the other, but because the limitations of due process of law affect the power to regulate in different ways. In other words, although the constitutional restrictions on that power may vary with the kind of commerce, the power to "regulate" remains the same. And since the power to regulate foreign commerce includes the power to prohibit it, it must of necessity follow that the power to regulate interstate commerce also includes the power to impose prohibitions upon it. Finally, it is only necessary to refer to the Lottery Act, the White Slave Act, and the Pure Food Act to show that there have 55 Hammer v. Dagenhart, note 9, supra. 56 This argument is carefully developed by Mr. Parkinson, op. cit, Col. Law Rev. 370 et seq. 57 The Constitution of the United States, Art. I, Sec. 9. 58 For citation of cases in support of this view see Parkinson, op. cit, The Child Labor Bui. 225-228; also note by E. B. Whitney, (1898) 7 Yale Law Jour. 291. THE NATIONAL POLICE POWER 473 been other cases in which the Supreme Court has viewed with approval the exercise by Congress of the power to prohibit en- tirely interstate commerce in certain commodities. (b) The Power to Regulate Interstate Commerce May Be Used for the Protection of Public Health, Morals, Safety, and Welfare in General : This point might perhaps be stated in this way: a regulation of commerce does not cease to be such merely because its purpose and effect are to eradicate evils over which Congress has no direct control. It is not the business of the Supreme Court to pry into the motives which prompt Congress to exercise its power to regulate commerce. Whatever restrictions there may be upon the power by reason of alleged violations of due process of law, the power to regulate commerce may properly be used by Congress to remedy any evils which may exist before, during, or after interstate commerce takes place, without making such action any less truly an exercise of the power to regulate such commerce. It is apparent that this view is in conflict with the position of the opponents of the Child Labor Law who argue that, while Congress may exercise a real police power under the commerce clause, that police power is limited to the actual do- main of interstate commerce and may only extend to the prohibi- tion of evils existing in or directly promoted by such commerce. The friends of the law, in short, look upon interstate commerce as a means entrusted to Congress to be used in any manner which will promote the public health, morals, and safety ; and they find in the Lottery Act, the White Slave Act, and laws of similar char- acter instances in which Congress has used the commerce power, not to protect any particular group of people, not to strike at evils which are limited to any particular locality, but to protect the nation at large from injury or danger. The evils, in other words, do not need to have any particular locus to be within the reach of congressional police power under the commerce clause. (c) No Distinctions Exist Between This Lazv and the Other Police Regulations Based on the Commerce Clause That Would Make It Less a Regulation of Commerce Than They : Those who believe the Child Labor Law to be constitutional feel that the efforts to distinguish it from the Lottery Act and so forth and to prove that, while those earlier acts were bona fide regulations of commerce, the Child Labor Law is not, are after all merely ef- forts to set up straw men for the purpose of knocking them down. 474 MINNESOTA LAW REVIEW They take the position, first, that the alleged distinctions do not in fact exist; and, second, that if they did exist they would not prove the Child Labor Law to be any less a regulation of com- merce than the earlier statutes mentioned. In support of the first point it is contended that the Child Labor Law does not stand alone in excluding from interstate commerce articles in themselves harmless. Lottery tickets are no more harmful in themselves than milk tickets ; the goods ex- cluded by the Commodities Clause 59 are in all respects above re- proach; the anti-trust statutes forbid the shipment of goods in- trinsically indistinguishable from any other articles of commerce. Nor is it true that the Child Labor Law is unique in that it excludes goods when no danger or injury can result from their interstate transportation. The other police regulations passed by Congress under the commerce clause have rested usually on the ground that the forbidden shipments were "acts of evil tendency." So also is the shipment of goods manufactured in a child labor factory an act of evil tendency. It promotes child labor both be- fore and after the actual shipment takes place : before, because a producer could not afford to continue the employment of children if it cut him off from interstate markets ; after, because states which may honestly desire to abolish child labor feel a reluctance to place their own industries at the mercy of the competition which results from the shipping in from other states of goods made by children. It is a peculiarly naive logic which insists that a cause must always chronologically precede an effect, and that interstate commerce cannot cause or promote child labor because the im- mediate child labor is over before the immediate goods are de- livered to the interstate carrier. The manufacture of goods is a continuous process, and its effects control its beginnings quite as much as with lottery tickets. This point has been clearly put in language which is worthy of -quotation : "Clearly enough the transportation is a contributing factor to the employment of chil- dren, as it is to the consumption of liquor and the purchase of lottery tickets. In terms of physics, the transportation is a pull in the one case, "and a push in the others. The matter belongs, however, to the realm, not of physics, but of economics. And in economics the. push and the pull are not to be differentiated. In so far, then, as the majority [of the Supreme Court] imply 59 See note 71, (1919) 3 Minnesota Law Review 311. THE NATIONAL POLICE POWER 475 that the interstate transportation was not necessary to the harmful results aimed at by the Child Labor Law, they are obviously in error. Unless it were necessary, the law would have been idle and useless, no employer or 'next friend' of children would have objected to it, and it would not have touched, even obliquely, matters reserved to the states." 00 In other words, just as the Mann Act forbids the use of interstate commerce as a facility in carrying on the white slave traffic, so the Child Labor Law prohibits such commerce from being used to promote the evil of child labor, and there is, accordingly, no difference in prin- ciple between the two as to their being each a bona fide regu- lation of interstate commerce. But in the second place, even if it be admitted that there are important distinctions between the Child Labor Law and the other regulations enacted under the commerce clause, those dif- ferences do not have any bearing whatever upon the question whether the Child Labor Law is or is not a regulation of com- merce. The distinction, for example, that the Child Labor Law benefits the producer, while the Lottery Act and similar statutes protect the consumer, is an entirely artificial and worthless dis- tinction. The enemies of the law are challenged to show any- thing in the commerce clause itself, the acts of Congress passed in pursuance thereof, and the decisions of the United States Supreme Court, which in any way suggest that a prohibition of interstate commerce loses its character as a regulation of that commerce in the constitutional sense because it is the consumer of goods shipped, rather than the producer, who receives the benefit therefrom. To hold otherwise is to inject into the con- stitution something which the framers did not put there. "Pro- ponents [of this distinction] are standing on their political ideas of what ought to be in the Constitution rather than on what the Supreme Court has said is there." 61 In like manner, even if it is admitted for the sake of argument that the Child Labor Law excludes harmless commodities from interstate commerce, or even admitting that the exclusion established is arbitrary and unreasonable, this would not prove that the law is not a regula- tion of commerce. It would merely prove that Congress had regulated commerce in such a way as to deprive persons of 60 Powell, op. cit. So. Law Quar. 197. 61 Parkinson, op. cit., 31 Pol. Sci. Quar. 537. 476 MINNESOTA LAW REVIEW liberty or property without due process of law. In the Lottery Case and in Clark Distilling Co. v. Western Maryland Ry. Co. 62 the Supreme Court plainly intimated that power to exclude commodities from interstate commerce might be held to be limited so as to preclude its exercise in a manner palpably arbitrary, but in each of these cases the implication is very plain that any such limitation would arise from the due process of law clause and not at all from any implied narrowing of the meaning of the word "regulate" as used in the commerce clause. What the critics of the law have done in using the distinctions mentioned to prove that the Child Labor Law is not a regulation of com- merce is to employ an argument "built upon a due process dis- tinction and then unwarrantably transferred to the commerce clause." 63 2. The Child Labor Law Does Not Work a Denial of Due Process of Law. When Senator Beveridge was defending the constitutionality of his child labor bill in 1906 he took the posi- tion that the power of Congress over interstate commerce was absolute, and that while Congress would naturally be restrained by considerations of policy and expediency from any arbitrary and unreasonable exercise of that power, the power itself was subject to no constitutional restrictions of any kind. 64 This means, of course, that Congress in the exercise of its commerce power is not restricted by any limitations arising from the due process of law clause of the Fifth Amendment. A writer on the subject who regards the law as unconstitu- tional upon other grounds takes the position that there is no property right to ship products in interstate commerce. That even if there were such a right it would be a "right to engage in interstate commerce lawfully regulated. So, if the regulation be lawful, the property right has existed subject to the regu- lation. And to assail the validity of the regulation by the due process clause is to argue in a circle." 65 62 (1917) 242 U. S. 311, 61 L. Ed. 326, 37 S. C. R. 180. 63 Powell, op. cit, 3 So. Law Quar. 194. 64 In the course of the debate the senator said : "Will you ask rne whether or not I think we have power to prohibit the transportation in interstate commerce of the milk of a cow milked by a young lady eighteen years old? Undoubtedly we have the power, but undoubtedly we would not do it. We have the power to prohibit the transportation through interstate commerce of any article." Cong. Rec, vol. 41, p. 1826. 65 Hull, op. cit., 31 Pol. Sci. Quar. 529. THE NATIONAL POLICE POWER A77 With these two exceptions, there would seem to be no dis- agreement among friends and critics of the Child Labor Law that the validity of any congressional prohibitions of interstate commerce must be subject to due process of law; and this view is supported by decisions of the Supreme Court. 66 The pro- ponents of the law, however, deny that it deprives any person of property or liberty without due process of law and they advance the following arguments in support of their view. At the outset attention is called to the fact that "the due process does not protect things, but persons. Goods made by child labor have no constitutional immunities." 67 Therefore the law does not fail of due process merely because the goods shipped are harmless. Compliance with the test of due process does not depend, therefore, upon the character of the goods excluded but upon the effect of that exclusion upon the rights and immunities of those who are forbidden to ship the goods. Now a constitutional right to ship in interstate commerce the products of factories employing children must of necessity rest upon a constitutional right to employ children; just as the constitutional right to ship lottery tickets in interstate commerce depends upon the exist- ence of a constitutional right to conduct or engage in a lottery enterprise. The question then reduces itself to this: is there a right to employ children, of such a nature that an interference with it constitutes a denial of due proces of law? Now the tests of due process of law are not very definite, and the cases in which acts of Congress have been invalidated for violation of the due process clause of the Fifth Amendment are relatively rare and throw little or no light on this particular problem. However, it has been held that the requirement of due process of law im- posed on the federal government by the Fifth Amendment is the same in principle as the requirement of due process of law imposed upon the states by the Fourteenth Amendment. 68 And since it has long been established not only by the state courts 69 66 As. for instance, in Adair v. United States, note 26, supra. See also 3 Minnesota Law Review 299. 67 Powell, op. cit, 3 So. Law Quar. 194. 68 Parkinson, op. cit, The Child Labor Bui. v. IV, pt 2. p. 245, citing Slaughter House Cases, (1872) 16 Wall. (U.S.) 26, 19 L. Ed. 915; Tona- wanda v. Lyon, (1901) 181 U. S. 389, 45 L. Ed. 908, 21 S. C. R. 609; Twining v. New Jersey, (1908) 211 U. S. 78, 53 L. Ed. 97, 29 S. C. R. 14. 69 See 16 R. C. L. 477 and cases cited. 478 MINNESOTA LAW REVIEW but also by the Supreme Court 70 that a state may forbid or regulate the employment of children without depriving anyone of liberty or property without due process of law, it must follow that Congress does not violate due process by interfering in a similar or analogous manner with the employment of children. It does not, however, follow from this argument that Congress can deny the privileges of interstate commerce to one who pur- sues any line of conduct that the state can interfere with without a violation on its part of due process of law. "So Congress could not prescribe that a man should not ship goods across a state line in case he violated his marriage vows. There would be no nexus between the infidelity and the transportation. But there is a nexus between making goods and shipping them. Evil in the making grows by the transportation it feeds on. Trans- portation increases child labor. It aids an evil which is a menace to the attainment of national objects. Congress cannot obliter- ate the evil. But it should be allowed to lessen it by denying it aid from the enjoyment of the highways under national control. If it ever should go further and seek to apply its commerce power to evils in no way dependent upon the commerce subject to its control, then the Supreme Court may with wisdom declare that it has failed to make a legitimate connection between its prohibition of transportation and the circumstances on which the prohibition is conditioned. But the court did not need to annul the Child Labor Law in order be free to deal with such cases if ever they should arise." 71 3. It Does Not Violate the Tenth Amendment. Those who defend the Child Labor Law regard the contention that the law violates the Tenth Amendment with less respect than any of the other arguments directed against its constitutionality. They point out three weaknesses in it which convince them of its lack of merit. In the first place, the Child Labor Law takes away from the states no right reserved to them by the constitution. The law forbids the shipment of certain commodities across state lines ; it does not forbid the employment of children. No state at any time during its history has ever had the power to compel any other state to admit its products ; and during the Confed- eration the states freely exercised the power to set up embargoes 70 Stur ? es & Burn Mfg. Co. v. Beauchamp, (1913) 231 U. S. 320, 58 L. Ed. 245, 34 S. C. R. 60. 71 Powell, op. cit, 3 So. Law Quar. 201. THE NATIONAL POLICE POWER 479 and restrictions on goods from neighboring states. Therefore when the Child Labor Law takes from the individual states the right to impose the products of their industry upon other states through the' channels of interstate commerce it takes away no right which the states ever had and therefore no right which could have been reserved to them by the federal constitution. In the second place, it is held that it is unsound to declare the law void as an invasion of the reserved powers of the states because of its indirect or incidental effects. Never before has the exercise by Congress of an admitted power been held un- constitutional because of such incidental effects Upon the authority of the states. Although there have been plenty of instances in which congressional authority over interstate commerce, has been so exercised as to impair seriously the freedom of action of the states in matters within their jurisdiction, these have always been regarded as the inevitable results of our federal form of govern- ment. 72 Thus the Lottery Act, the Pure Food Act, the Meat Inspection Act, all in precisely the same way discourage the production of the commodities excluded from interstate com- merce. To invalidate one law because of its indirect invasion of the power of the states and not to treat in the same way other acts which also invade that power leaves upon the shoulders of the court the burden of determining when the indirect effects of a law are a sufficiently serious interference with state authority to warrant the interposition of the judicial ban; and we have thus opened up another fertile field for the production of judge- made law. Finally, the argument based on the Tenth Amendment is superfluous. "If the Child Labor Law was a proper exercise of power to regulate interstate commerce, it was by the explicit terms of the Tenth Amendment not an exercise of a power re- served to the states. If it was not a proper exercise of the power to regulate interstate commerce, it was unconstitutional, and nothing more need be said about it." 73 72 An extreme example of this is the "Shreveport Case," Houston, etc., Ry. Co. v. United States. (1914) 234 U. S. 342, 58 L. Ecf 1341, 34 S. C. R. 833, in which railroads were compelled to raise their intrastate freight rates which had been fixed by a state railroad commission, because those rates produced discrimination against competing shipments in in- terstate commerce which were being made at rates held reasonable by the Interstate Commerce Commission. 73 Powell, op. cat., So. Law Quar. 480 MINNESOTA LAW REVIEW 4. The Dissenting Opinion of Mr. Justice Holmes. 74 The dis- senting opinion of Mr. Justice Holmes is not an attempt to build up a constructive argument in support of the Child Labor Law, but is rather a pungent criticism of the reasoning of the majority. Since the majority opinion did not take up at all the due process of law argument, the justice confined the batteries of his criti- cism in general to a single concise attack upon the remaining two points of difference. He protests most vigorously against invalidating an exercise by Congress of one of its admitted powers because of the col- lateral effect of such regulation upon matters reserved to state control. "I should have thought," declared the justice, "that the most conspicuous decisions of this court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any state." He then proceeds to comment on some of these "conspicuous decisions" in which the indirect effect upon state authority of congressional acts has been held quite irrelevant to the question of their validity. Furthermore, some of the acts already sustained have excluded from commerce commodities intrinsically harmless, and the Supreme Court in the- Hoke case 75 has specifically put itself on record as upholding the use of the commerce power for police purposes. In these cases "it does not matter whether the supposed evil precedes or follows the transportation. It is enough that in the opinion of Congress the transportation encourages the evil." 76 It is no longer open to dispute that the power to regulate commerce includes the power to prohibit it in some cases. Mr. Justice Holmes denies strenuously the propriety of upholding or invalidating the exercise of this power to prohibit commerce in accordance with judicial views of the morality or immorality of. the transactions prohibited. But if this were permissible, there is no denying that child labor is an evil which ought to be dealt with as readily as any other. "I should have thought that if we were to introduce our own moral conceptions where in my opinion they do not belong, this was pre-eminently a case for upholding the exercise of all its powers by the United States." 74 Justices Brandeis, McKenna, and Clark concurred in the dissent. 75 Note 31, supra. 76 Mr. Justice Holmes, dissenting opinion, 247 U. S. at p. 279. THE NATIONAL POLICE POWER 48 1 And finally, the law does not interfere with any power re- served to the states. "They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line they are no longer within their rights. . .• . The public policy of the United States is shaped with a view to the benefit of the nation as a whole. . . . The national welfare as understood by Con- gress may require a different attitude within its sphere from that of some self-seeking state. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command." Conclusion In the foregoing analysis of the arguments for and against the constitutionality of the Child Labor Law, the effort has been to make clear the exact issues involved in that controversy. It should also make clear that the advocates and opponents of the law disagreed not only upon the question of its validity but also upon the question of just what the actual result would be of a decision sustaining the law. Clearly it would advance the na- tional police power far beyond its old limits. To what extent would it be expanded? Would there be any real limits upon that expansion? The opponents of the law have felt that to uphold its consti- tutionality would be to open wide the door to congressional inter- ference in any and every matter now confided to state control. In fact, they have pretty unanimously been seized with an irre- sistible impulse to lapse into reductio ad absurdum and paint in the most lurid colors the constitutional havoc wrought upon state authority and state institutions by such a doctrine. They argue that, if a man can be denied the privileges of interstate commerce because he employs children, he can be denied those privileges because of any other line of conduct which a majority in Congress view with disapproval; the line which now exists between the police power of the state and the regulatory power of Congress would be obliterated, and the only difference between the authority of the two governments to regulate the conduct of its citizens would be that one could act directly and the other by a process of indirection. 482 MINNESOTA LAW REVIEW It seems clear that some at least who have taken this extreme view of the results of the Child Labor Law in expanding the scope of the national police power have lost sight of the fact that any exercise of that power must be kept within due process of law. But, even if this were not the case, it should be borne in mind that a court which has expressed its contempt for those who show a tendency to push the application of constitutional principles to a "drily logical extreme" is not apt to permit itself to be browbeaten by the requirements of absolute consistency into upholding any law which is a manifestly ridiculous or dangerous application of even the most harmless principle. But if the Supreme Court had been willing to sustain the Child Labor Law on the basis of the argument advanced by its friends in its behalf, it is apparent that, while the national police power would have been strikingly enlarged, that expansion would not have been unlimited but would have been confined to well defined boundaries. Under this interpretation, the power of Congress to exclude Commodities from the channels of inter- state commerce could be used, not to strike at any evil which Congress might succeed by this method in bringing within its reach, but to strike at only those evils which could be said to be promoted by interstate commerce or motivated by the expecta- tion or necessity of enjoying the privileges of such commerce. Concretely, those evils would be those connected with the proc- esses of manufacturing the products destined for interstate markets. Congress would doubtless have gained the authority to regulate the conditions of labor in any industry dependent on interstate commerce for its markets, and this of course includes every industry of importance in the country; it is not clear that it would have gained much more. But if the scope of the national police power under the com- merce clause was not enlarged by the decision invalidating the Child Labor Law, neither was it narrowed. Congress still re- tains full authority to deal with any evil which threatens to injure, destroy, or obstruct interstate commerce. There still remains the authority to protect the national health, morals, safety, and general welfare from such evils as depend upon the physical agency of interstate commerce facilities for the trans- portation of commodities or persons. But evils which feed on interstate commerce only in the sense that they would dwindle THE NATIONAL POLICE POWER 483 away if the right of those responsible for them to engage in interstate commerce were withdrawn are still beyond the reach of congressional power as conferred by the commerce clause. Con- gress may exercise a police power to protect interstate commerce, and to protect the nation from the actual misuse of that com- merce ; it may not, however, protect the nation from all the other equally dangerous and much more numerous evils which would die of discouragement if the interstate commerce they thrive on were prohibited. THE NATIONAL POLICE POWER 247 THE NATIONAL POLICE POWER UNDER THE TAX- ING CLAUSE OF THE CONSTITUTION* When the United States Supreme Court decided in the sum- mer of 1918 that the Keating-Owen Act, 1 closing the channels of interstate commerce to the products of mines and factories employing child labor, was an attempt by Congress to exercise a power not confided to it by the constitution and was therefore null and void, 2 the child labor exterminators, in Congress and out, apparently undismayed, girt up their loins and sallied forth on what one of them aptly termed "a quest of constitutionality." 3 There seemed to be no thought that Congress should abandon its efforts to prohibit child labor ; the problem merely resolved itself into one of method. One method had failed and another must be found. 4 Accordingly a rather astonishing variety of proposals was brought forward in the hope that an effective and at the same time constitutional federal child labor law might be evolved. Three resolutions were introduced proposing a child labor amend- ment to the national constitution. 5 Senator Owen demanded the reenactment of the Keating-Owen Act with an added pro- vision that no judge should have the power to declare it uncon- stitutional. 6 Also a bill embodying the principle of the Webb- *This article, though complete in itself, is a development of the topic of National Police Power under the Commerce Clause, 3 Minnesota Law Review 289, 381, 452. 1 Act of September 1, 1916, Chap. 432. 39 Stat, at L. 675. . 2 Hammer v. Dagenhart, (1918) 247 TJ." S. 251, 62 L. Ed. 1101, 38 S. C. R. 529. 3 Title of an article by Raymond G. Fuller, in Child Labor Bulletin, Nov., 1918, Vol. 7, 207. 4 Senator Lodge declared in the Senate debate on the Child Labor Tax (see infra note 10), "The main purpose is to put a stop, to what seems to be a very great evil and one that ought .to be in some way put a stop to. If we are unable to reach it constitutionally in any other way, then I am willing to reach it by the taxing power, which the courts have held can be used constitutionally for such a purpose. I see no other way to do it." Cong. Rec, Dec. 18, 1918, Vol. 57, 611. 5 House Joint Resolution 300, introduced by Mr. Mason (111.), Cong. Rec, June 11, 1918, Vol. 56, 7652; House Joint Resolution 302, Mr. Rogers (Mass.)', ibid, 7776; House Joint Resolutions 304, Mr. Fall (Pa.), ibid, 7776. • 6 Cong. Rec, June 6, 1918, Vol. 56, 7418, Sen. bill 4671. Debated June 6, 1918, ibid, 7431, 7435. 248 MINNESOTA LAW REVIEW Kenyon Act was introduced, forbidding the shipment of the products of child labor into states which prohibit the employment of children. 7 Again it was proposed that the use of the mails be denied to the employers of children. 8 Still another bill relied upon the war power as a basis for a flat prohibition of child labor by declaring such a prohibition necessary for "conserving the man power of the nation and thereby more effectually providing for the national security and defense." 9 Finally, proposals were made to drive child labor out of existence by use of the federal power of taxation; and when the Revenue Act of February 24, 1919, was passed, it contained provisions placing an excise tax of ten per cent upon the net profits of mining and manufacturing establishments employing children. 10 Within three months of the enactment of this law it was declared unconstitutional by a federal district judge in North Carolina on the ground that it was an invasion of the domain of 7 Sen. bill 4762, June 27, 1918, by Mr. Pomerene. Referred to Com- mittee on Interstate Commerce. Cong. Rec, Vol. 56, 8341. See comments in Survey, June 15, 1918, p. 324. 8 Sen. bills 4732, 4760, June 27, 1918, by Mr. Kenyon. Referred to Committee on P. O. and P. Roads. Cong. Rec, Vol. 56, 8341. 9 House bill 12767, Aug. 15, 1918, by Mr. Keating (Col.), Cong. Rec, Vol. 56, 9238. Text of this bill is reprinted in Child Labor Bulletin, Aug., 1918, Vol. 7, 98. 10 On June 27, 1918, Mr. Pomerene introduced a bill to tax the employ- ment of children (S. R. 4763) which was referred to Committee on Inter- state Commerce, Cong. Rec, Vol. 56, 8341. On. Nov. 15, 1918, he intro- duced a similar measure drafted in collaboration with Senators Kenyon and Lenroot as an amendment to the general revenue bill (H. R. 12863). This amendment was finally enacted. The pertinent part of the act as passed is the first section, Act of Feb. 24, 1919, 40 Stat, at L. 1138. It reads as follows: "Every person (other than a bona fide boys' or girls' canning club recognized by the Agricultural Department of a State and of the United States) operating (a) any mine or quarry situated in the United States in which children under the age of sixteen years have been employed or permitted to work during any portion of the taxable year ; or (b) any mill, cannery, workshop, factory, or manufacturing establishment situated in the United States in which children under the age of fourteen years have been employed or per- mitted to work, or children between the ages of fourteen and sixteen have been employed or permitted to work more than eight hours in any day or more than six days in any week, or after the hour of seven o'clock post meridian, or before the hour of six o'clock ante meridian, during any portion of the taxable year, shall pay for each taxable year, in addition to all other taxes imposed by law, an excise tax equivalent to 10 per centum of the entire net profits received or accrued for such year from the sale or disposition of the product of such mine, quarry, mill, cannery, workshop, factory or manufacturing establishment." Other proposals for destroying child labor by taxation were made in Congress. Two bills (H. R. 12705, 13087) introduced by Mr. Green (la.) and Mr. Gard (Ohio) provided for the taxation of articles of interstate commerce in the manufacture of which child labor is employed. Cong. Rec, Vol. 56, 9051, 11310. It was proposed by Mr. Mason (111.) to levy THE NATIONAL POLICE POWER 249 state authority. 11 At the time of the writing of this article an appeal from this decision is pending before the Supreme Court of the United States. It would seem that in no case could the question be more squarely raised whether there are any constitutional limitations upon the purposes for which Congress may use its power to tax. The friends of this law do not claim that it was designed for the purpose of raising revenue, or for any other purpose than the destruction of child labor. 12 If it should be held that this is a constitutional use of the taxing power it follows that there is stored up in the power to tax a most substantial fund of con- gressional authority to deal with social and economic problems, a police power more comprehensive and far-reaching in scope than can be derived from any other grant of power to Congress. 13 It is the purpose of this article to examine the nature of such national police power as may be derived from the power to tax and to determine what are the limitations, if there be any, to which that power is subject. The Clause Granting the Power to Tax Congressional authority to tax is granted in the following words of the federal constitution: "The Congress shall have Power (1) To lay and collect Taxes, Duties, Imposts and Ex- cises, to pay the Debts and provide for the common Defense and general Welfare of the United States." 14 For what seems at first glance to be a perfectly straightforward and unambig- uous statement, this brief sentence has given rise to a surprising number of constitutional controversies of the very first magni- tude. These disputes have related to two entirely separate a tax of two dollars per day on all who employ children. Cong. Rec, Vol. 56, Appendix, 461. 11 May 2, 1919. The decision was handed down by Judge James E. Boyd, who rendered the district court decision in Dagenhart v. Hammer, invalidating the Keating-Owen Act. No opinion was written and the facts set forth above are based on press reports. See New York Times, May 12 With the possible exception of its author, Senator Pomerene, who insisted that the purpose of its enactment was two-fold, to raise revenue and to destroy child labor. He expressed the belief that it would produce some revenue. Cong. Rec, Dec. 18, 1918, Vol. 57, 613. 13 See articles by the writer on National Police Power under the Com- merce Clause of the Constitution, (1919) 3 Minnesota Law Review, 289, 381, 452; Judge Charles M. Hough, Covert Legislation and the Con- stitution, (1917) 30 Harvard Law Rev. 801; Paul Fuller Is There a National Police Power? (1904) 4 Col. Law Rev. 563. 14 Art. I, sec. 8, cl. 1. 250 MINNESOTA LAW REVIEW aspects of the taxing power. 15 In the first place, there has been bitter disagreement as to the purposes for which Congress is authorized to raise revenue. In other words, what may Con- gress legitimately do with the money raised by taxation? In respect to this question, which is not the one under considera- tion, we may merely note in passing that the following principles are now settled : First, the clause, "to pay the debts and provide for the common defense and general welfare of the United States," is not a separate grant of general legislative power, but is a statement of limitation indicating the purposes for which Congress may use the power to "lay and collect taxes, duties, imposts and excises." In short, Congress may lay and. collect taxes in order to pay the debts and provide for the common defense and general welfare. 16 Second, Congress is not limited in the purposes for which it may spend money raised by taxa- tion to such purposes as are covered by the legislative powers delegated to Congress by the constitution. It may spend money not only to aid in the exercise of those delegated powers but also for the more comprehensive and general objects of "pro- viding for the common defense and general welfare." 17 , 15 Story, Commentaries on the Constitution, I, Sec. : 958. 16 No,one has expressed this more clearly than Jefferson in his opinion on the power of Congress to establish the Bank of the United States: "To lay taxes to provide for the general welfare of the United States, that is to say, 'to levy taxes for the purpose of providing for the general welfare.' For the laying of taxes is the power, and the general welfare the purpose, for which the power is to be exercised. Congress are not to lay taxes ad libitum, for any purpose they please; but only to pay the debts, or provide for the welfare of the Union. In like manner they are not to do anything they please to provide for the general welfare, but only to lay taxes; for that purpose. To consider the latter phrase, not as describing the purpose of the first, but as giving a distinct and independent power to do any act'- they please, which might be for the good of the Union, would fender" alt the" preceding and subsequent enumerations of power completely useless" ^Jefferson's Correspondence, Vol. 4, 524, 525. On the same point see Story, op. cit., Sees. 907-930 ; Miller on the ; Con- stitution, 229 ; Hare American Constitutional Law, I, 241 ; Watson, Con- stitution, I, 390; Black, Constitutional Law, 207; Tucker, Constitution, I, 470; Federalist, No. 41. ■: A, ■■:■ Compare the opposite view of Chancellor Kent: "At -present it will.be sufficient to observe, generally, that Congress are authorized to provide for the common , defense and general welfare; and for that purpose, among other express grants, they are authorized to lay and' collect taxes, etc. . . ." Comrhe'ntaries, 13th Ed., I, 259. ; 17 The classic argument in support of this position is that of President Monroe in his message accompanying his veto of the Cumberland . Road Bill. Richardson: Messages and Papers of the Presidents, II, i64-167; Hamilton's Report on Manufactures, Dec. 5, 1791, Works, Lodge Ed., Vol. 4, 151. See also Story, op. cit. Sees. 975-991; Willoughby, op. cit., I, 588.. For opposite view see Tucker, op. cit, I, 475. THE NATIONAL POLICE POWER 251 ,■ The second group of controversies over the meaning of the taxing clause of the constitution has dealt, not with the question of the purposes for which revenue may legitimately be raised by taxation, but with the question whether or not Congress may use the power to tax for purposes which do not include the raising of any revenue at all, or include it only incidentally. For in- stance, may Congress tax solely, in order to promote industry, or to drive- out of existence practices or commodities injurious to the national welfare? It is clear that the scope and nature of any police power which Congress may enjoy under the taxing clause will depend upon the extent to which it may use its power to tax for purposes other than revenue. , The question of the purposes for which Congress may use the power to tax has been answered with different degrees of con- servatism. On the one hand are those who believe that this power may be legitimately used only for the raising of revenue. Midway, a more numerous group has urged that Congress may properly tax for revenue and in addition to accomplish or pro- mote any other legislative object within the enumerated powers. of Congress. Finally, the friends of the new child labor tax and measures like it allege that Congress may levy taxes for the purpose of regulating or controlling indirectly problems clearly outside of its delegated legislative authority, provided that such taxation has for its object providing for the common defense and general welfare of the nation. An examination of the merits of these three views in the light of the arguments advanced in their support will help materially in determining whether or not there is a national police power properly deducible from the con- gressional power to tax; and. if there is such a police power, what, if any, are its limits. Taxation for Revenue "Only The proposition that Congress may use its grant of taxing power only to raise revenue is ancient and familiar doctrine. It has served as an argument for ove^r— a— hundred— years to those who have denied the constitutionality of the protective tariff. 18 To that end it was vigorously urged by Calhoun and his South 18 For analysis of arguments for and against the constitutionality of protective tariffs, see passim Stanwood, Tariff Controversies in the United States in the Nineteenth Century. See also arguments on this point in Elliott's Debates, Vol. IV. Of course this is not the only argument urged against the validity of such tariffs. 252 MINNESOTA LAW REVIEW Carolina adherents in 1829 during the critical period of the nullification controversy; 19 and it stood as a solemn pronuncia- mento in the party platform on which President Wilson was elected in 1912. 20 It must not be assumed, however, that this view of the fed- eral taxing power is the sole property of the free trader. It is not even incompatible with a belief in the constitutional pro- priety of protection. Nor does it place one in the position of maintaining with an unyielding literalness that Congress may, under no circumstances, impose a money exaction or tax for a purpose other than revenue. The present day advocates of this theory usually recognize that Congress may levy a tax to make effective some other power delegated to Congress by the constitution, such as the power to regulate commerce or to control the currency. They insist, however, that in such cases Congress has exercised not its delegated taxing power but its commerce power or its currency power. In other words, the power of taxation granted by article I, section 8 of the constitu- tion is definitely limited to the laying of taxes for revenue only : but in addition to this expressly delegated and definitely limited power, there is derived from the other grants of congressional authority an implied power to levy money exactions which may be called taxes, so that a tax is constitutional which furthers any object within the scope of the delegated powers of Congress even though it is not levied by virtue of the taxing power spe- cifically granted in article 1, section 8. To overlook this impor- tant distinction puts the adherent of the "revenue only" theory in an entirely false position. This view that the power of taxation granted to Congress may constitutionally be used only for the purpose of raising revenue is supported by three main arguments which may be briefly reviewed. 21 1. In its commonly accepted meaning as well as by legal definition, the term "taxation" is confined to the power of gov- « Works, VI, 1-59. 20 The Democratic Platform in 1912 contained the following declara- tion : "We declare it to be a fundamental principle of the Democratic Party that the Federal Government under the Constitution has no right to impose or collect tariff duties except for the purposes of revenue. . . ." The Democratic Platform in 1892 contained a practically identical state- ment. 21 For an excellent presentation of this whole .theory of federal tax- ation, see the valuable article by J. B. Waite, (1908) 6 Mich. Law Rev. 277. THE NATIONAL POLICE POWER 253 ernments to raise revenue. All the English dictionaries concur in regarding the purpose of securing money as an inherent attribute of a tax. 22 The raising of revenue has been commonly recognized as the sine qua non of the taxing power. 23 This gen- eral impression of the layman and the lexicographer has been confirmed with definiteness and precision in the law, which has recognized and emphasized the distinction between money ex- actions for revenue purposes and money exactions imposed for purposes of regulation or destruction. Charges of the first class are based on the taxing power ; those of the second class upon the police power. Commentators 24 and courts 25 have again and again insisted upon the observance of this classification. The state gov- ernments possess, of course, a general police power for the pro- tection of public health, safety, morals and welfare. As a neces- sary and reasonable means of exercising this police power the state may levy what, for want of a better term, may be called taxes, which are prohibitive or repressive or regulatory in purpose and effect. In the legal and constitutional sense these taxes are to be regarded as police regulations, and not as exertions of the power of the state to tax. To prove this it is merely necessary to point out that these so-called "taxes" have been subjected to all the constitutional limitations resting upon the police power and when they have been imposed, in a manner or for a purpose which can- not be justified under the police power, the courts have not hesi- 22 Webster defines a tax as ">a. rate or sum of money assessed on the person or property of a citizen by the government for the use of the nation or state." 23 While admitting that the purpose to raise revenue is a common attribute of the taxing power, there are those who deny that it is an essential attribute. See infra 261, 265. 24 "License fees, occupation taxes, inspection fees, and other like exactions, which are not imposed for the purpose of raising revenue, but for the proper regulation of matters deemed essential to the public safety, health, or welfare, are not 'taxes' in the ordinary and proper sense of that term, and are not governed by the constitutional rules and maxims applicable' to taxation, but by those which define and limit the exercise of the police power." Black, Constitutional Law, 3d Ed., 467; Cooley, Con- stitutional Limitations, 7th Ed. 283, n. 1. 709, n. 1, 713; Cooley on Taxa- tion 3d Ed II, 1125; Freund, Police Power, Sec. 25; McClain, Consti- tutional Law in the U. S., 133 ; 27 Amer. & Eng. Ency. of Law & Proc, 578 ; 37 "Cyc." 707. zsGundling v. Chicago, (1900) 177 U. S. 183, 189, 20 S. C. R. 633, 44 L. Ed. 725; Phillips v. Mobile, (1908) 208 U. S. 472, 478, 28 S. C. R. 370, 52 L. Ed. 578; Reymann Brewing Co. v. Brister, (1900) 179 U. S. 445, 45 L. Ed. 269, 21 S. C. R. 201 ; Pabst Brewing Co. v Crenshaw, (1904) 198 U. S. 17. 49 L. Ed. 925, 25 S. C. R. 552; Tanner v. Little, (1916) 240 U. S. 369, 60 L. Ed. 691, 36 S. C. R. 379. 254 MINNESO TA LA W RE VIE W tated to declare them unconstitutional. 26 If, therefore, it should be admitted that the power of taxation belonging to Congress is exactly the same in nature and scope as that which the states en- joy, a proposition which has been vigorously urged, 27 it by no means follows that that power affords any basis for the exercise of a general federal police authority by means of regulatory and prohibitive taxation. When the state lays a tax for police purposes, it is exercising one of its admitted powers, the police power. No one will deny that Congress, also, may lay taxes as a means of carrying out its own granted powers. 28 But the use by the state of the power to lay taxes in aid of an admitted state power can furnish no authority for the exercise by Congress of the power to levy taxes in aid of powers clearly not granted to the national government. To regard the power of taxation as in its very nature limited to purposes of revenue is not to deny or discount the truth of Marshall's. famous dictum, "the power to tax is the power to de- stroy." 29 The two propositions, are entirely compatible. This oft- quoted maxim, instead of being regarded as a blanket authori- zation of the unrestrained use of the taxing power for any and all purposes irrespective of revenue, is more reasonably con- strued as an epigrammatic statement of the political and eco- nomic axiom that since the financial needs of a state or nation may outrun any human calculation,' so the power to meet those needs by taxation must not be limited even though the taxes become burdensome or confiscatory. 30 To say that "the power 26 State v. Ashbrook, (1899) 154 Mo. 375, 55 S. W. 627, 48 L. R. A. 265, 77 A. S. R. 765; Sperry and Hutchinson v. Owensboro, (1912) 151 Ky. 389, 151 S. W. 932; Little v. Tanner, (1913) 208 Fed. 605 (over- ruled in 240 U. S. 369 on other grounds). Earlier cases are cited by Cooley, Taxation, II, 1140. 27 See infra, p. 267. 23 See infra, p. 261. 29 McCulloch v. Maryland, (1819) 4 Wheat. (U.S.) 316, 431, 4 L. Ed. 579; Weston v. City Council of Charleston, (1829) 2 Pet. 449, 7 L. Ed. 481. It should be noted that this statement is jn . reality obiter dictum. What Marshall was proving was that a state could levyno tax whatever on an instrumentality of the federal government even thbugh the tax ' was neither burdensome nor destructive. See article by T. R. Powell, Indirect Encroachment on Federal Authority by the Taxing Powers of the States, (1918) 31 Harvard Law. Rev. 321. 30 "The sense of the opinion is. that, as a sovereign state, governments may be pressed for money, each may take from its people a portion of their possessions ; that this right may be exercised again and again until the whole of the property has. been exhausted : In this sense there is a like right in the federal government to destroy." Waite, op. cit, 6 Mich. Law Rev. 292. THE NATIONAL POLICE POWER to tax is the power to destroy" is to describe not the purposes for which the taxing power may be used but the degree of vigor with which the power may be employed in order to raise rev- nue." 1 , . 2 It is urged, in the second place, that the framers of the federal constitution intended to confer upon Congress the power to tax only for the purpose of raising revenue. 32 It is true that the clause granting this power contains language susceptible of a more liberal construction. It authorizes the levying of taxes "to pay the debts and provide for the common defense and gen- eral welfare of the United States." The power described by these words, however, is the power to tax for the purpose of securing the necessary money with which to pay the public debts and pro- vide for the common defense and general welfare. In other words "to provide for the common defense and general wel- fare" 'is a statement of the objects for which money raised by taxation may be spent rather than a statement of the objects for which the power to tax may be used irrespective of revenue. It is ur-ed that such meagre evidence as is available regarding the ^. a ni,^^achedJoJhjsjkus e by those who framed it 3 '^ nd_by -iThU view finds support in Marshall's further comment on the doc- ToH