Substantive Due

ation, which is alleged to invade "liberty" or "property" contrary to "due process of law". How is this vast proliferation of cases, and attendant expansion of the Court's constitutional jurisdiction, to be explained? The explanation, in

no other instance has its lawmaking been more evident than in its interpretation of the due process clauses, and in no other instance have the state judiciaries contributed so much

ke's influence is seen to pervade the Declarations and Bills of Rights which often accompanied the revolutionary State Constitutions, yet their promise was early defeated by the overwhelming power of the first state legislatures, especially vis-a-vis the property right. One highly impressive exhibit of early state legislative power is afforded by the ferocious catalogue of legislati

sounding in Natural Law. In 1795 Justice Paterson of the new Supreme Court admonished a Pennsylvania jury that to construe a certain state statute in a way to bring it into conflict with plaintiff's property rights would render it void. "Men," said he, "have a sense of property.... The preservation of property ... is a primary object of

truded itself, whether judicial review could pretend to operate on a merely moral basis. Both the notion that the Constitution was an emanation from the sovereignty of the people, and the idea that judicial review was but a special aspect of normal judicial function, forbade the suggestion. It necessarily followed that unless judicial protection of the property

e constitutions of the historically synonymous due process clause, was foreshadowed as

f mankind has at length settled down to this: that they were intended to secure the individual from the arbitrary exerci

y slavery was excluded from the territories, was held void under the Fifth Amendment, not on the ground that the procedure for enforcing it was not due process of l

ed of property", period. At the same time Judge Comstock's opinion in the case sharply repudiates all arguments against the statute sounding in Natural Law concepts, fundamental principles of liberty, common reason and natural rights, and so forth. Such theories were subversive of the necessary powers of government. Furthermore, there was "no process of reasoning by which it can be demonstrated that the 'Act for the Prevention of Intemperance, Pauperism and Crime' is void, upon principles and theories outside

ed the Court, in implication, a vast new jurisdiction, but this the Court at first manifested the greatest reluctance to enter upon. It did not wish, it protested, to become "a perpetual censor upon all State legislation"; nor did it wish, by enlarged conceptions of the right

d it-in Munn v. Illinois,[67] in which the Supreme Court had held that states were entitled by virtue of their police power to prescribe the charges of "businesses affected with a public interest," the Association, through its more eminent members, became the mouthpiece of a new constitutional philosophy which was compounded in about equal parts from the teachings of the British Manchester School of Politi

iltrating the due process clauses and especially the word "liberty" thereof, of their several State constitutions with the new revelation. The product of these activities was the doctrine of freedom of contract, the substantial purport of which was that any legislation which restricted the liberty of male per

otice of its intention to review in detail the "reasonableness" of railway rates set by State authority and in Holden v. Hardy it ratified, at the same term, the doctrine of freedom of contract.[70] The result of the two holdings

its fluctuating membership tipped the scales now in favor of Business, now in favor of Government. And today the latter tendency appears to have prevailed. In its decisions early in 1937 sustaining outstanding Roosevelt Administration measures, the C

teen years little happened. Then in 1940, the Court supplemented its ruling in the Gitlow Case with the so-called "Clear and Present Danger" rule, an expedient which was designed to divest state enactments restrictive of freedom of speech, of press, of religion, and so forth, of their presumed validity, just as, earlier, statutes restrictive of freedom of contract had been similarly disabled. By certain of the Justices,

War Power. The reader has only to consult in these pages such holdings as those in Belmont v. United States, Yakus v. United State

half century between 1885 and 1935. But this fact does not signify that the clause is not, in both its procedural sense and its broader sense, especially when supplemented by the equal protection clause of Amendment XIV, a still valuable and viable source of judicial protection against

su

onal Document. The tradition concerning the original establishment of the Constitution was still fresh, and in the person and office of the great Chief Justice the intentions of the framers enjoyed a renewed vitality. This is not to say that Marshall did not have views of his own to advance; nor is it to say th

ts, ceases to be cited. Among the theories which in one way or other received the Court's approval during this period were the notion of Dual Federalism, the doctrine of the Police Power, the taboo on delegation of legislative power, the derived doctrine of Due Process of Law, the conception of liberty

f what Justice Holmes once termed "the sovereign prerogative of choice." It was early in this period that Governor Hughes, soon to ascend the Bench, said, without perhaps intending all that his words literally conveyed, "We are under a Constitution, but the Constitution is what the judges say it is." A decade later it was suggested by an eminent law teacher that attorneys arguing "due process cases" before the Court ought to address the Justices not as "Your Honors" but as "Your Lordships"; and Senator Borah, in the Sen

ve. Others can be searched out in the pages of this volume. What they sum up to is this: that what was once vaunted as a Constitution of Rights, both State rights and private rights, has been replaced to a great extent by a Constitution of Powers. The Federal System has shifted

xx

the era when it was cutting its widest swathe in the field of national legislative policy, the period from 1895 to 1935. Even then there was a multiplicity of state legislatures and only one Congress, so that the legislative grist that found its way to the Court's mill was overwhelmingly of local provenience. And since then several things have happened to confirm this predominance: first, the annexation to Amendment XIV of much of the conten

the late Justi

power to declare an Act of Congress void. I do think the Union would be imperile

is still sizes u

d S.

ary,

o

ecord, vol.

43 (1851), overturning The Thomas

457 (1871); Hepburn v. Gri

oan & Trust Co., 157 U.S.

ecord, vol.

llwright, 321

Ibid

in United States Histo

se (1837), 230 pages of 11 Peters; the Passenger Cases (1849), 290 pages of 7 Howard; the Dred Scott Case (1857), 240 pages of 19 Howard; Ex parte

s of the Federal Convention

How. 504, 573-574 (1847), an

. 506, 520-

95 (1935); 298

U.S. 238,

U.S. 10

00 U.S

7 U.S.

Pet. 435 (1842); Collector

at. 316, 4

details, see E.S. Corwin, Court

e: Footnote 21 is missi

lahoma v. Civil Service Comm'n.

Dall.

ll. 457, 5

0 U.S.

Ting, 149 U.

U.S. 304,

t, says: "The war powers of Congress and the President are only those which are derived from the Constitution", but he adds: "the primary implication of a war power is tha

XIV (1888). Jowett and some other

background of this principle, see P.W. Duff and H.E. Whiteside, "Delegata Potestas

3 U.S. 388 (1935); Schechter Corp. v

U.S. 57

U.S. 304,

3 U.S.

Constitutional History of t

e, op. ci

id., §

nited States, 27

on) and "Helvidius" (Madison), see E.S. Corwin, The Pr

as Jefferson, V, 209

. 137, 16

bid.,

7 H

v. Page, 9 Ho

tes v. Tingy, 5

Atty. Gen.

lack 635

Wall. 2

all. 475

tes v. Lee, 106

Neagle, 135

58 U.S

ography, 38

cit., 1

overnment in the Unit

Total War and the Cons

3 U.S.

berty Against Government

rom any man any part of his property with

ee v. Dorrance, 2 Da

88-389 (1798). See also Loan Associ

umbia v. Okely,

ndford, 19 How.

N.Y. 378

, by a more flexible doctrine, which left it open to the State to show reasonable justification for that type of legislation in terms of acknowledged ends of the Police Power,

rrow construction given it at this time is still the law of the Court. But Justices Bradley and Swayne pointed out the potentialities of the due process of law

U.S. 113

e Constitution, How Laissez Faire Came

k, 198 U.S. 45 (1905); and Adkins v. C

U.S. 466;

The Fourteenth Amendment an

301 U.S. 1, 33-34; West Coast Hotel

Prudential Ins. Co. v. Che

ued in detail in connection

treated in the text

v. United States,

, xii, 241 (1918); New York Times, February 12, 1930. It was also during the same period that Judge Andrew A. Bruce of North Dakota wrote: "We are governed by our judges and not by our legislatures.... It is our judges who formulate our public policies and our basic l

ed Legal Pap

xx

NT

ee tables at beginning of

ces I

's for

introdu

on formation of

nstitution (li

mendments (li

tion, with a

reamb

Legislative

1. The C

f Represen

enat

ons and m

ons and m

ative pro

ts of M

and resol

s of Con

denied to

denied to t

Executive

. The Pre

duties of th

owers and duties o

eachme

. Judicial

ges, their terms,

isdict

reas

. Federal

ith and credit giv

tizen

government of Te

State gov

Mode of a

iscellaneous

II. Ratif

to the Co

eligion, free

ring a

ering so

es and se

s of per

used in criminal

il tri

ment for

tained by th

ved State

against

n of Presid

nd involuntar

n of slavery and invo

of Cong

ts of ci

hip; due process; e

ent of repres

ication of o

claims for los

orceme

f citizens

ot to be abridged for

of Cong

come t

election of

n of intoxicat

ition of intoxica

nt power to

it on ratif

al suff

the President, Vice President,

of President, Vice President, S

g of Cong

alification of Pr

rein death occurs among those from

of eff

mit on rat

Eighteenth A

epeal of pro

on into States

it on ratif

dential T

riction on Numb

it on ratif

nal in whole or in part by the Supr

of Cas

ex

OF THE UNITED S

ON FORMATION OF

met in Philadelphia in September of that year the first Continental Congress, composed of delegates from 12 colonies. On October 14, 1774, the assembly adopted what has come to be known as the Declaration and Resolves of the First Continental Congress

nt in defiance of the royal governor and the Crown. Hence, by general necessity and by common consent, the second Continental Congress assumed control of the "Twelve United Colonies", soon to become the "Thirteen United Colonies" by the cooperation of

dingly on June 7 a resolution was introduced in Congress declaring the union with Great Britain dissolved, proposing the formation of foreign alliances, and suggesting the drafting of a plan of confederation to be submitted to the respective colonies.[d] Some delegates argued for confederation first and declaration afterwards. This counsel did not prevail. Independence was declared on Ju

" on March 1, 1781, the need for a revenue amendment was widely conceded. Congress under the Articles lacked authority to levy taxes. She could only request the States to contribute their fair share to the common treasury, but the requested amo

to that instrument were proposed. Not only did all amendments have to be ratified by each of the 13 States, but all important legislation needed

treaties had to be ratified by the several States. Even when a treaty was approved, Congress lacked authority to secure obedience to its stipulations. Congr

ect to unimportant exceptions, was left to the individual States. Disputes between States with common interests in

utually advantageous to the two States." Maryland in January 1785 responded to the Virginia resolution by appointing a like number of commissioners[e] "for the purpose of settling the navigation and jurisdiction over that part of the bay of Chesapeake whic

"to take into consideration the trade and commerce" of the Confederation. Virginia, in January 1786, advocated such a convention, authorizing its commissioners to meet with those of other States, at a time and place to be agreed on, "to take into consideration the trade of the United States; to examine the relative situations and trade of the said

nting. Only five States-Virginia, Pennsylvania, Delaware, New Jersey, and New York-were represented; delegates from Massachusetts, New Hampshire, North Carolina, and Rhode Island failed to attend. Because of the small representation, the Annapolis convention did not deem "it advisable to proceed on the business of their mission." After an exchange of vi

he convention would be extra-legal; that Congress alone could propose amendments to the Articles of Confederation. Washington was quite unwilling to attend an irregular convention. Congressional approval of the proposed convention became, therefore, highly important. After some hesitancy Congress approved the suggestion for a convention at Philad

d, appointed in due course delegates to the Convention, and

gates were present to proceed with the organization of the Convention. Washington was e

ructions to a revision of the Articles, Virginia had really recommended a new instrument of government. For example, provision was made in the Virginia plan for the separation of the three

onvention was ready to consider the report on the Virginia plan, Paterson of New Jersey requested an adjournment to allow certain delegations more time to prepare a substitute plan. The request was granted, and on the next day Paterson submitted nine resolutions embodying important changes in the Articles of Confederation, but strictly amendatory in nature. Vigorous debat

hould have an equal vote, that in the lower branch each State should have one representative for every 40,000 inhabitants, counting three-fifths of the slaves, that money bills should originate in the lower house (not subject to amendment by the upper chamber). When on July 12 the

ved. The Convention adjourned from July 26 to August 6 to await the report of its committee of detail. This committee, in preparing its draft of a Constitution, turned for assistance to the State constitutions, to the Articles of Confederation, to the various plans which had been submitted to the Convention and

etails were attended to, further compromises were effected. Toward the close of these discussions, on September 8, another

convenience of the delegates. The Convention for 3 days compared this report with the proc

sent of the States to the new instrument of Government, were anxious to obtain the unanimous support of the delegations from each State. It was feared that many of the delegates would refuse to give their individual assent to the Constitution. Therefore, in order that the action of the convention would

ecified that no amendments should be effective until approved by the legislatures of all the States, the Philadelphia Convention suggested that the new Constitution should sup

re Congress was in session, to placate the expected opposition. Aware of their vanishing authority, Congress on September 28, af

y wrote a series of commentaries, now known as the Federalist Papers, in support of the new instrument of government.[n] The closeness and bitterness of the struggle over ratification and t

anuary 2, 1788, the vote in both States being unanimous. Connecticut ratified on January 9, 1788; yeas 128, nays 40. On February 6, 1788, Massachusetts, by a narrow margin of 19 votes in a convention with a membership of 355, endorsed the new Constitution, but recommended that a bill of rights be added to protect th

irginia, neither of which had ratified. Madison, Marshall, and Randolph led the struggle for ratification in Virginia. On June 25, 1788, by a narrow margin of 10 votes in a convention of 168 members, that State ratified over the objection of such dele

he first Wednesday of January 1789 was fixed as the day for choosing presidential electors, the first Wednesday of February for the meeting of electors, and the first Wednesday of March (i.e. March 4, 1789) for the

o

s and privileges granted and confirmed to them by royal charters, or secured by their several codes of provincial laws"; "a right peaceably to assemble, consider of their grievances, and petition the king." They further declared that the keeping of a standing army in the colonies in time of peace without the consent of the colony in which the army was kept was "against law"; that it was "i

ustrative of the Formatio

d., pp.

bid.,

rson were appointed commissioners for Virginia; Thomas Johnson, Thoma

solutions is to be fou

v. Wise, 153 U

lustrative of the Format

d., pp.

delegation did not arr

Virginia, Gorham of Massachusetts, Ellsworth

ilton of New York, Gouverneur Morris of Pennsylvania, Ja

39 signed the document. It has been estimated that generally fewer than 30 delegates attended the daily sessions. For further details respecting the Conventio

or ratification, have been frequently cited by the Supreme Court as an au

mber 21, 1789; yeas 184, nays 77. Rhode Island di

OF THE UNITED S

RAL

N OF THE UN

Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Libert

icl

l be vested in a Congress of the United States, which

Year by the People of the several States, and the Electors in each State shall have the

enty five Years, and been seven Years a Citizen of the United States, and who sh

Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representa

any State, the Executive Authority thereof shal

their Speaker and other Officers; and s

d of two Senators from each State, chosen by the Legislature

ation of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; and if Vacancies happe

y Years, and been nine Years a Citizen of the United States, and who shall n

ll be President of the Senate, but shall ha

ent pro tempore, in the Absence of the Vice President, or when

l be on Oath or Affirmation. When the President of the United States is tried the Chief Justice shall

on to hold and enjoy any Office of honor, Trust or Profit under the United States: but the Party convicte

ves, shall be prescribed in each State by the Legislature thereof; but the Congress may at

, and such Meeting shall be on the first Monday in Dece

ity of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be aut

s, punish its Members for disorderly Behaviour, and,

g such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of eithe

Consent of the other, adjourn for more than three days, nor to a

ited States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of thei

rity of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such time

ate in the House of Representatives; but the Senate ma

. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Persons

nt) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by h

ises, to pay the Debts and provide for the common Defence and general Welfare of the United

n the credit of t

Nations, and among the several S

ation, and uniform Laws on the subject of

ereof, and of foreign Coin, and fix

counterfeiting the Securities and

Post Offices

curing for limited Times to Authors and Inventors the exc

unals inferior to

onies committed on the high Seas, and

rque and Reprisal, and make Rules c

ppropriation of Money to that Use sha

and maint

ernment and Regulation of

a to execute the Laws of the Union, sup

y be employed in the Service of the United States, reserving to the States respectively, the Appointment of

d the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Cons

ion the foregoing Powers, and all other Powers vested by this Constitution in

roper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and

not be suspended, unless when in Cases of Rebel

r or ex post facto

laid, unless in Proportion to the Census or E

be laid on Articles e

the Ports of one State over those of another; nor shall Vessels bound to,

ations made by Law; and a regular Statement and Account of the Receipts a

f Profit or Trust under them, shall, without the Consent of the Congress, accept of any presen

; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any

essary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports, shal

War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign Pow

cle.

ates of America. He shall hold his Office during the Term of four Years, and, t

hole Number of Senators and Representatives to which the State may be entitled in the Congress: but no Senator or Re

Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing t

ors, and the Day on which they shall give their Votes; w

stitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who sh

ll devolve on the Vice President, and the Congress may by Law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice Pres

ther be encreased nor diminished during the Period for which he shall have been elected, and he

solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States,

l Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to t

Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and w

may happen during the Recess of the Senate, by granting Com

e may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as

e United States, shall be removed from Office on Impeachment for, and

cle.

from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour

mbassadors, other public Ministers and Consuls;-to all Cases of admiralty and maritime Jurisdiction;-to Controversies to which the United States shall be a Party;-to Controversies between two or more States;-between a State and Cit

upreme Court shall have original Jurisdiction. In all the other Cases before mentioned, the supreme Court shall have app

e held in the State where the said Crimes shall have been committed; but when not committed withi

in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treas

son, but no Attainder of Treason shall work Corruption of Blood

cle.

d judicial Proceedings of every other State. And the Congress may by general Laws prescribe t

ll be entitled to all Privileges and Immu

ce, and be found in another State, shall on Demand of the executive Authority of the State fr

, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or La

cted within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States,

the Territory or other Property belonging to the United States; and nothing in this Constitution

f Government, and shall protect each of them against Invasion; and on Application of the Legis

icl

be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that

cle.

doption of this Constitution, shall be as valid against the Uni

r which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges i

icial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Con

cle.

shall be sufficient for the Establishment of this Co

n an Erazure in the fifteenth Line of the first Page, The Words "is tried" being interlined between the thirty second and thirty t

liam Jacks

r in the Year of our Lord one thousand seven hundred and Eighty seven and of the Independence of

ington-

ty from

ampsh

hn L

las G

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es Pi

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Monday, Septem

es

Stat

from New York, New Jersey, Pennsylvania, Delaware, Maryl

olv

nventions of nine States shall have ratified this Constitution, the United States in Congress assembled should fix a Day on which Electors should be appointed by the States which shall have ratified the same, and a Day on which the Electors should assemble to vote for the President, and the Time and Place for commencing Proceedings under this Constitution. That after such Publication the Electors should be appointed, and the Senators and Representatives elected: That the Electors should meet on the Day fixed for the Election of the

ous Order of

hington

son Sec

NSTITUTION OF THE UN

ED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE SEVERAL

ment

e exercise thereof; or abridging the freedom of speech, or of the press; or the right of t

ment

security of a free State, the right of the peop

ment

ny house, without the consent of the Owner, nor in t

ment

hes and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oa

dmen

Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any cri

ment

shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be co

ment

ght of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise r

ment

nor excessive fines imposed, nor cru

ment

tain rights, shall not be construed to deny

dmen

Constitution, nor prohibited by it to the States, are

ent [X

suit in law or equity, commenced or prosecuted against one of the United State

ent [X

en be counted;-The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. And if the House of Representatives shall not choose a President whenever the right of choice

ent XI

ment for crime whereof the party shall have been duly convicted, shall e

e power to enforce this artic

ment

rein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State

nd Vice President of the United States, Representatives in Congress, the Executive and Judicial officers of a State, or the members of the Legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United Stat

reviously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any State legislature, or as an executive or judicial officer of any State, to support the Constitution o

ng insurrection or rebellion, shall not be questioned. But neither the United States nor any State shall assume or pay any debt or obligation incurred in aid of insurrecti

wer to enforce, by appropriate legisl

ment

all not be denied or abridged by the United States or by any Sta

have power to enforce this art

ment

s, from whatever source derived, without apportionment among the

ent [X

ople thereof, for six years; and each Senator shall have one vote. The electors in each State shall

ssue writs of election to fill such vacancies: Provided, That the legislature of any State may empower the executive

fect the election or term of any Senator chosen b

nt [XVI

of intoxicating liquors within, the importation thereof into, or the exportation thereof from the Unite

es shall have concurrent power to enforce

to the Constitution by the legislatures of the several States, as provided in the Constitut

ent [X

vote shall not be denied or abridged by the Un

to enforce this article

ent [X

the terms of Senators and Representatives at noon on the 3d day of January, of the years in which such term

year, and such meeting shall begin at noon on the 3d day of

of his term, or if the President elect shall have failed to qualify, then the Vice President elect shall act as President until a President shall have qualified; and the Congress may by law provide for the case wherein neither a President elect n

ves may choose a President whenever the right of choice shall have devolved upon them, and for the case of the death of any

ffect on the 15th day of October foll

ed as an amendment to the Constitution by the legislatures of three-fourth

ent [X

f amendment to the Constitution of

r possession of the United States for delivery or use therein of intox

nt to the Constitution by conventions in the several States, as provided in the Constituti

ent [X

ted President shall be elected to the office of the President more than once. But this Article shall not apply to any person holding the office of President when this Article was proposed by the Congress, and shall not prevent any

amendment to the Constitution by the legislatures of three-fourths of the several St

o

date on which the secretary of state of a given State certified the ratification, or the date on which the Secretary of State of the United States received a copy of said certificate, or the date on which he proclaimed that the amendment had been ratified are not controlling. Hence, the ratification date given in the following notes is the date on which the legislature of a given State approved the particular amendment (signature

ly ratified by number. The first 10 amendments along with 2 others which failed of ratification were proposed by Congress on September 25, 1789, when they passed the Senate [1 Ann. Cong. (1st Cong., 1st sess.) 90], having previously

790; Delaware, January 28, 1790; New York, February 27, 1790; Pennsylvania, March 10, 1790; Rhode Island, June 7, 1790; Vermont, November 3, 1791; Virginia, December 15, 1791. The two amendments which failed of ratification (i.e. nos. 1 and 2 of those proposed) prescribed the ratio of representation to

February 7, 1795, when the twelfth State (North Carolina) approved the amendment, there being then 15 States in the Union. Official announcement of ratification was not made until January 8, 1798, when President John Adams in a message to Congress stated that the 11th

une 16, 1794; Massachusetts, June 26, 1794; Vermont, between October 9 and November 9, 1794; Virginia, November 18, 1794; Georgia, November 29, 1794; Kentucky, December 7, 1794; Mar

shire) approved the amendment, there being then 17 States in the Union. The Governor of New Hampshire, however, vetoed this act of the legislature on June 20, and the act failed to pass again by two-thirds vote then required by the State constitution. Inasmuch as art. V of the Federal Constitution specifies that amendments shall become effective "when ratified by the legislatures of three-fourths of the several States or by convention

rginia, between December 20, 1803 and February 3, 1804; Pennsylvania, January 5, 1804; Vermont, January 30, 1804; New York, February 10, 1804; New Jersey, February 22, 1804; Rhode Island, between February 27 and March 12, 1804

ng., 1st sess.) 1490]. It appears officially in 13 Stat. 567 under the date of February 1, 1865. Ratification was completed on December 6, 1865, when the legislature of the twenty-seventh State (Georgia

5; Indiana, February 16, 1865; Nevada, February 16, 1865; Minnesota, February 23, 1865; Wisconsin, February 24, 1865; Vermont, March 9, 1865 (date on which it was "approved" by Governor); Tennessee, April 7, 1865; Arkansas, April 14, 1865; Connecticut, May 4, 1865; New Hampshire, June 30, 1865; South Carolina, November 13, 1865; Alabama, December 2, 1865 (date on which it was "approved" by Provisional Governor); North Carolina, December 4, 1865; Georgia, December 6, 1865; Oregon, Decemb

when it passed the House [21 Ann. Cong. (11th Cong., 2d sess.) 2050], having previously passed the Senate on April 27 [20 Ann. Cong. (11th Cong., 2d sess.) 672]. It appears officially in 2

Cong., 2d sess.) 1403], having previously passed the House on February 28 [Id., 1285]. It appears officially in 12 Stat. 251. It failed of adoption, being ratified by but three States: Ohio, May 13, 1861 [58 Laws Ohio, 190]; Maryland, Jan

na or Louisiana) approved the amendment, there being then 37 States in the Union. However, Ohio and New Jersey had prior to that date "withdrawn" their earlier assent to this amendment. Accordingly, Secretary of State Seward on July 20, 1868, certified that the amendment had become a part of the Constitution if the said withdrawals were ineffective [15 Stat. 706-707]. Congress a

anuary 17, 1867; Minnesota, January 17, 1867; Maine, January 19, 1867; Nevada, January 22, 1867; Indiana, January 23, 1867; Missouri, January 26, 1867 (date on which it was certified by the Missouri secretary of state); Rhode Island, February 7, 1867; Pennsylvania, February 12, 1867; Wisconsin, February 13, 1867 (actually passed February 7, but not signed by legislative officers until February 13); Massachusetts, March 20, 1867; Nebraska, June 15, 1867; Iowa, March 9, 1868; Arkansas, April 6, 1868; Florida, June 9, 1868; North Carolina, July 2, 1868 (after having rejected the amendment on December 13, 1866); Louisiana, July 9, 1868 (after having rejected the amendment on February 6, 1867);

February 27, 1869. Ratification was probably completed on February 3, 1870, when the legislature of the twenty-eighth State (Iowa) approved the amendment, there being then 37 States in the Union. However, New York had prior to that date "withdrawn" its earlier

; Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June 14, 1869; New Hampshire, July 1, 1869; Virginia, October 8, 1869; Vermont, October 20, 1869; Alabama, November 16, 1869; Missouri, January 7, 1870 (Missouri had ratified the first section of the 15th Amendment on March 1, 1869; it failed to include in its ratification the second section of the amendment); Minnesota, January 13, 1870; Mississippi, January 17, 1870; Rhode Island, January 18, 1870; Kansas, January 19, 1870 (Kansas had by a defectively worded resolution previously ratified

ly 5 [Id., 4121]. It appears officially in 36 Stat 184. Ratification was completed on February 3, 1913, when the legislature of the thirty-sixth State (Delaware, Wyoming, or New Mexico) appr

fornia, January 31, 1911; Nevada, January 31, 1911; South Dakota, February 1, 1911; Nebraska, February 9, 1911; North Carolina, February 11, 1911; Colorado, February 15, 1911; North Dakota, February 17, 1911; Michigan, February 23, 1911; Iowa, February 24, 1911; Kansas, March 2, 1911; Missouri, March 16, 1911; Maine, March 31, 1911; Tennessee, April 7, 1911; Arkansas, April 22, 1911 (after having rejected the amendment at the session begun January 9, 1911); Wisconsin, May 16, 1911; N

12, 1911 [47 Cong. Rec. (62d Cong. 1st sess.) 1925]. It appears officially in 37 Stat. 646. Ratification was completed on April 8, 1913, when the thirty-sixth State (Connecticut)

January 31, 1913; West Virginia, February 4, 1913; Colorado, February 5, 1913; Nevada, February 6, 1913; Texas, February 7, 1913; Washington, February 7, 1913; Wyoming, February 8, 1913; Arkansas, February 11, 1913; Illinois, February 13, 1913; North Dakota, February 14, 1913; Wisconsin, February 18, 1913; Indiana, February 19, 1913; New Hampshire, February 19, 1913; Vermont, February 19,

pears officially in 40 Stat 1050. Ratification was completed on January 16, 1919, when the thirty-sixth State approved the amendment, there being then 48 States in the Union. On January 29, 1919, Acting S

siana, August 9, 1918 (date on which approved by Governor); Florida, November 27, 1918; Michigan, January 2, 1919; Ohio, January 7, 1919; Oklahoma, January 7, 1919; Idaho, January 8, 1919; Maine, January 8, 1919; West Virginia, January 13, 1919; California, January 13, 1919; Tennessee, January 13, 1919; Washington, January 13, 1919; Arkansas, January 14, 1919; Kansas, January 14, 1919; Illinois, January 14, 1919; Indiana, January 14, 1919; Alabama, January 15, 1919; Colorado, January

e on May 21, [Id., 94]. It appears officially in 41 Stat. 362. Ratification was completed on August 18, 1920, when the thirty-sixth State (Tennessee) approved the ame

8, 1919; New Hampshire, September 10, 1919 (date on which approved by Governor); Utah, October 2, 1919; California, November 1, 1919; Maine, November 5, 1919; North Dakota, December 1, 1919; South Dakota, December 4, 1919 (date on which certified); Colorado, December 15, 1919 (date on which approved by Governor); Kentucky, January 6, 1920; Rhode Island, January 6, 1920; Oregon, January 13, 1920; Indiana, January 16, 1920; Wyoming, January 27, 1920; Nevada, February 7, 1920; New Jersey, February 9, 1920; Idaho, February 11, 1920; Arizona, Febr

ouse on March 1 [Id., 5027]. It appears officially in 47 Stat. 745. Ratification was completed on January 23, 1933, when the thirty-sixth State approved the amendme

a, August 15, 1932; Texas, September 7, 1932; Alabama, September 13, 1932; California, January 4, 1933; North Carolina, January 5, 1933; North Dakota, January 9, 1933; Minnesota, January 12, 1933; Arizona, January 13, 1933; Montana, January 13, 1933; Nebraska, January 13, 1933; Oklahoma, January 13, 1933; Kansas, January 16, 1933; Oregon, January 16, 1933; Delaware, January 19, 1933; Washington, January 19, 1933; Wyoming, January 19, 1933; Iowa, January 20, 1933; Sout

s under 18 years of age was passed by Congress on June 2, 1924. This proposal at the time it was submitt

because: (1) Rejected by more than one-fourth of the States; (2) a State may not reject and then subsequently ratify, at least when more than one-fourth of the States are on record as rejecting;

se States 10 had previously rejected the amendment on one or more occasio

ebruary 16 [Id., 4231]. It appears officially in 47 Stat. 1625. Ratification was completed on December 5, 1933, when the thirty-sixth State (Utah) approved the amendment, there

33; West Virginia, July 25, 1933; Arkansas, August 1, 1933; Oregon, August 7, 1933; Alabama, August 8, 1933; Tennessee, August 11, 1933; Missouri, August 29, 1933; Arizona, September 5, 1933; Nevada, September 5, 1933; Vermont, September 23, 1933; Colorado, September 26, 1933; Washington, October 3, 1933; Minnesota, October 10, 1933; Idaho, October 17, 1933; Maryland, October 18, 1933; Virginia, October 25, 1933; New Mexico, November 2, 1

e Senate on March 12, 1947 [Id. 1978]. It appears officially in 61 Stat. 959. Ratification was completed on February 27, 1951, when the thirty-sixth State (Minnesota) approved the amendment;

o, April 16, 1947; Wisconsin; April 16, 1947; Pennsylvania, April 29, 1947; Connecticut, May 21, 1947; Missouri, May 22, 1947; Nebraska, May 23, 1947; Virginia, January 28, 1948; Mississippi, February 12, 1948; New York, March 9, 1948; South Dakota, January 21, 1949; North Dakota, February 25, 1949; Louisiana, May 17, 1950; Montana, January 25, 1951; Indiana, January 29, 1951; Idaho, January 30, 1

HE UNITED STATES OF A

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HE UNITED STATES OF A

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Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Libert

Effect of

res which they deem useful for the common defence. But suppose the terms of a given power admit of two constructions, the one more restrictive, the other more liberal, and each of them is consistent with the words, but is, and ought to be, governed by the intent of the power; if one could promote and the other defeat the common defence, ought not the former, upon the soundest principles of interpretation, to be adopted?"[2] Moreover, the preamble bears witness to the fact that the Constitution emanated from the people, and was not the act of sovereign and independent States,[3

o

ssachusetts, 197 U

entaries on the C

1819); Chisholm v. Georgia, 2 Dall. 419, 470 (

.S. 244, 251 (1901); In re R

How. 39

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TIVE DE

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be vested in a Congress of the United States, which s

of Enumer

the concept of "resulting powers," those which "rather be a result from the whole mass of the powers of the National Government, and from the nature of political society, than a consequence or incident of the powers specially enumerated."[7] Story's reference is to Marshall's opinion in American Insurance Company v. Canter,[8] where the latter says, that "the Constitution confers absolutely on the government of the Union, the powers of making war, and of making treaties; consequently, that government possesses the power of acquiring territory, either by conquest or by treaty."[9] And from the power to acquire territory, he continues, arises as "the inevitable consequence" the right to govern it.[10] Subsequently, powers have been repeatedly ascribed to the National Government by the Court on grounds which ill accord with the doctrine of enumerated powers: the power to legislate in effectuation of the "rights expressly given, and duties expressly enjoined" by the Constitution;[11] the power to impart to the paper currency of the Government the quality of legal tender in the payment of debts;[12] the power to acquire territory by discovery;[13] the power to legislate for the Indian tribes wherever situated in the United States;[14] the power to exclude and deport aliens;[15] and to require that those who are admitted be registered and fingerprinted;[16] and finally the complete powers of sovereignty, both those of war and peace, in the conduct of foreign relations. In the words of Justice Sutherland in United States v. Curtiss-Wright Export Corporation,[17] decided in 1936: "The broad statement that the federal government can exercise no powers except those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers, is categorically true only in respect of our internal affairs. In that

ity of Legis

OF DO

explanation of the origin and limitations of this idea as a postulate of constitutional law: "The well-known maxim 'Delegata potestas non potest delegari,' applicable to the law of agency in the general and common law, is well understood and has had wider application in the construction of our Federal and State Constitutions than it has in private law. The Federal Constitution and State Constitutions of this country divide the governmental power into three branches. * * * in carrying out that constitutional division * * * it is a breach of the National fundamental law if Congress gives up its legislative power and transfers it to the President,

WHICH MAY

wo different theories, both enunciated during the Chief Justiceship of John Marshall, have been utilized to justify these results. First in importance is the theory that another department may be empowere

LEMENT STATUT

objection that this constituted an invalid delegation of legislative power, saying: "It will not be contended, that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative. But Congress may certainly delegate to others, powers which the legislature may rightfully ex

OR ADMINIST

ersons after notice and hearing, with findings of fact and of law based upon the record made in the hearing, the Court has ruled that such general terms as "public interest,"[28] "public convenience, interest, or necessity,"[29] or "excessive profits,"[30] were sufficient to satisfy constitutional requirements. But in two cases arising under the National Industrial Recovery Act, a policy declaration of comparable generality was held insufficient for the promulgation of rules applicable to all persons engaged in a designated activity, without the procedural safeguards which surround the issuance of individual orders.[31] By subsequent decisions, somew

MAKIN

and purity for tea imported into the United States.[36] It has approved the delegation to executive or administrative officials of authority to make rules governing the use of forest reservations;[37] permitting reasonable variations and tolerances in the marking of food packages to disclose their contents;[38] designating tobacco markets at which grading of tobacco would be compulsory;[39] establishing priorities for the transportation of freight during a period of emergency;[40] prescribing price schedu

TED TO PARTI

investigation of the facts, can fix rates with reference to the peculiar circumstances of each road, and each particular kind of business, and who can change or modify these rates to suit the ever-varying conditions of traffic."[51] Contemporaneously Congress created the Interstate Commerce Commission to regulate the rates and practices of railroads with respect to interstate commerce. Although the Supreme Court has never had occasion to render a direct decision on the delegation of rate-making power to the Commission, it has repeatedly affirmed rate orders issued by that agency.[52] Likewise it has sustained the power of the Secretary of War to order the removal or alteration of bridges which unreasonably obstructed navigation over navigable waters;[53] the power of the Federal Reserve Board to authorize natio

N TO PRIV

ompany[64] that private trade groups could not be empowered to issue binding rules concerning methods of competition or wages and hours of labor. On the other hand, statutes providing that restrictions upon the production or marketing of agricultural commodities shall become operative only upon a favorable vote by a prescribe

FFECT TO CONTIN

ot that of "filling up the details" of a statute, authority for it must be sought elsewhere than in Wayman v. Southard and its progeny. It is to be found in an even earlier case-The Brig Aurora[67]-where the revival of a law upon the issuance of a Presidential proclamation was upheld in 1813. After previous restraints on British shipping had lapsed, Congress passed a new law stating that those restrictions should be renewed in the event t

ION OF TA

ive precedents which demonstrated that "in the judgment of the legislative branch of the government, it is often desirable, if not essential, * * *, to invest the President with large discretion in matters arising out of the execution of statutes relating to trade and commerce with other nations";[70] (2) that the act "did not, in any real sense, invest the President with the power of legislation. * * * Congress itself prescribed, in advance, the duties to be levied, * * *, while the suspension lasted.

EMB

s of war in the United States to those countries now engaged in armed conflict in the Chaco may contribute to the reestablishment of peace * * *, and if * * *, he makes proclamation to that effect, * * *" Said Justice Sutherland for the Court: "It is important to bear in mind that we are here dealing not alone with an authority vested in the President by an exertion of legislative power, but with such an authority plus the very d

NAL A

or when to issue the order. Nor did it require him to make any findings of fact to disclose the basis of his action. By a vote of eight-to-one the Court held the delegation invalid. The only case in which the power of an administrative official to modify a rule enacted by Congress relating to domestic affairs has been sustained is Opp Cotton Mills v. Administrator.[76] That case involved the provisions of the Fair Labor Standards Act which authorized the appointment of Industry Advisory Committees to investigate conditions in particular industries, with notice and opportunity to be heard afforded to interest

NCY ST

on declaring "the existence of a national emergency," and by so doing "activated" more than sixty statutes or parts thereof which by their terms apply to or during "a condition of emergency" or "in time of war or national emergency," etc. Most of these specifically leave it

NT OF VI

ns authorized by, and lawfully issued pursuant to, the act.[81] Without disavowing this general proposition, the Court, in 1944, upheld a suspension order issued by the OPA whereby a dealer in fuel oil who had violated rationing regulations was forbidden to receive or deal on that commodity.[82] Although such an order was not explicitly authorized by statute, it was sustained as being a reasonab

onal Inve

NS IN AID OF

r had been frequently exercised by the British Parliament and by the Assemblies of the American Colonies prior to the adoption of the Constitution.[84] It was asserted by the House of Representatives as early as 1792 when

EXECUTIVE

y and integrity with which they have been conducted, * * *"[88] called upon the President and the heads of departments for lists of persons appointed without the consent of the Senate and the amounts paid to them. Resentful of this attempt "to invade the just rights of the Executive Departments" the President refused to comply and the majority of the committee acquiesced.[89] Nevertheless Congressional investigations of Executive Departments have continued to the present day. Shortly before the Civil War, contempt proceedings against a witness who refused to testify in an investigation of John Brown's raid upon the arsenal at Harper's Ferry occasioned a thorough consideration by the Senate of the basis of this power. After a protracted debate, which cut

TE AF

ent on proposed legislation. In Kilbourn v. Thompson,[94] the Court denied the right of Congress to pry into private affairs. Again, in Interstate Commerce Commission v. Brimson,[95] in sustaining a statute authorizing the Courts to use their process to compel witnesses to give testimony sought by the Commission for the enforcement of the act, the Court warned that, "neither branch of the legislative department, still less any merely administrative body, esta

E OF I

"[101] Similarly, in McGrain v. Daugherty, the investigation was presumed to have been undertaken in good faith to aid the Senate in legislating.[102] Going one step further in Sinclair v. United States,[103] which on its facts presented a close parallel to the Kilbourn Case, the Court affirmed the right of the Senate to carry on its investigation of fraudulent leases of government property after suit for the recovery thereof had been instituted. The president of the lessee corporation had refused to testify on the ground that the questions related to his private affairs and to matters cognizable on

AL FUN

h its action must be based. Thus the Court held that since a House had a right to expel a member for any offense which it deemed incompatible with his trust and duty as a member, it was entitled to investigate such condu

THE INVESTI

nt

held that the implied power to deal with contempt did not extend to the arrest of a person who published matter defamatory of the House. Both Anderson v. Dunn and Marshall v. Gordon emphasized that the power to punish for contempt rests upon the right of self-preservation; that is, in the words of Chief Justice White, "the right to prevent acts which in and of themselves inherently obstruct or prevent the discharge of legislative duty or the refusal to do that which there is inherent legislative power to compel in order that legislative functions may be performed."[109] Whence it was argued,

l Prose

unishment, and overruled all constitutional objections to it saying: "We grant that Congress could not divest itself, or either of its Houses, of the essential and inherent power to punish for contempt, in cases to which the power of either House properly extended; but, because Congress, by the act of 1857, sought to aid each of the Houses in the discharge of its constitutional functions, it does not follow that any delegation of the power in each to punish for contempt was involved; * * *."[113] In a prosecution for wilful failure of a p

second Year by the People of the several States, and the Electors in each State shall have t

e of twenty five Years, and been seven Years a Citizen of the United States, and wh

ns of Member

TION OF RIGHT TO VOT

Where a primary election is made by law an integral part of the procedure of choice or where the choice of a representative is in fact controlled by the primary, the Constitution safeguards the rights of qualified electors to participate therein.[120] Congress may protect this right by appropriate legislation.[121] In prosecutions instituted under section 19 of the Criminal Code,[122] the Court had held that failure to c

QUALIFICATIONS

Although on two occasions when it refused to seat persons who were ineligible when they sought to take the oath of office, the Senate indicated that eligibility must exist at the time of election, it is now established in both Houses

NT OF QUA

l persons.[128] At this time the principal argument against the statute was that all persons were eligible for the office of Representative unless the Constitution made them ineligible. In Burton v. United States,[129] the argument was given a new twist. A law providing that a Senator or Representative convicted of unlawfully receiving money for services rendered before a government department should be "rendered forever thereafter incapable of holding any office of honor, trust or profit under the Government of the United States," was assailed as an unconstitutional interference with the authority of each House to judge the qualifications of, or to expel, one of its own members. The Court construed the statute not to affect the offender

F THE STATE

not been twelve months a resident of the district from which elected as required by State law. No attempt was made to ascertain whether these requirements were met because the State law was deemed to be unconstitutional.[133] Both the House and

ther Persons].[135] The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The Number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Repre

SUS REQ

] it is one of the methods whereby the national legislature exercises its inherent power to obtain the information necessary for intelligent legislative action. Although taking an enlarged view of its power in making the enumeration of persons called for by this section, Congress has not always complied with its positive mandate to reapportion representatives among the States after the census is taken. It failed to make such a reapportio

on from any State, the Executive Authority thereof

l chuse their Speaker and other Officers; a

omposed of two Senators from each State, chosen by the Legislatu

Expiration of the second Year, of the second Class at the Expiration of the fourth Year, and of the third Class at the Expiration of the sixth Year, so that one third may be chosen every second Year; [and if Vacancies happ

thirty Years, and been nine Years a Citizen of the United States, and who shall

tes shall be President of the Senate, but shal

President pro tempore, in the Absence of the Vice President, or wh

y shall be on Oath or Affirmation. When the President of the United States is tried, the Chief Justice sha

fication to hold and enjoy any Office of honor, Trust or Profit under the United States; but the Party convic

entatives, shall be prescribed in each State by the Legislature thereof; but the Congress may

slation Unde

.[140] The first comprehensive federal statute dealing with elections was adopted in 1870. Under the Enforcement Act of 1870 and kindred measures,[141] false registration, bribery, voting without legal right, making false returns of votes cast, interference in any manner with officers of election, and the neglect by any such officer of any duty required of him by State of federal law, were made federal offenses. Provision was made for the appointment by federal judges of persons to attend at places of registration and at elections with authority to challenge any person proposing to register or vote unlawfully, to witness the counting of votes, and to identify by their signatures the regis

ATURE

that a redistricting law be submitted to a popular referendum was challenged and sustained. After the reapportionment made pursuant to the 1930 census, deadlocks between the Governor and legislature in several States, produced a series of cases in which the right of the Governor to veto a reapportionmen

ALITY OF ELEC

ngly unequal populations, was attacked as unconstitutional on the ground that it denied to voters in the more populous districts the full right to vote and to the equal protection of the laws. The Court dismissed the complaint, three Justices asserting that the issue was not justiciable, and a fourth that the case was one in which the Court should decline to exercise jurisdiction.[151] Justice Black, dissenting in an opinion in which Justices Douglas and Murphy joined, argued: "While the Constitution contains no express provision requiring that Congre

OTECTION OF THE

o punish federal officers and employees who solicit or receive contributions to procure the nomination of a particular candidate in a State primary election.[156] At one time the Court held that Congress had no power, at least prior to the adoption of the Seventeenth Amendment, to limit the expenditures made to procure a primary nomination to the United States Senate,[1

ry Year, and such Meeting shall be on the first Monday in D

Majority of each shall constitute a Quorum to do Business; but a smaller Number may adjourn from day to day, and may be

ceedings, punish its Members for disorderly Behaviour,

cepting such Parts as may in their Judgment require Secrecy; and the Yeas and Nays of the Members of eit

out the Consent of the other, adjourn for more than three days, nor

Duties of

JUDGE E

believe that otherwise such witness would not be forthcoming.[159] It may punish perjury committed in testifying before a notary public upon a contested election.[160] The power to judge elections extends to an investigation of expenditures made to influence nominations at a primary election.[161] R

M TO DO

n Rule XV of the House, that members present in the chamber but not voting would be counted in determining the presence of a quorum.[164] The Supreme Court upheld this rule in United States v. Ballin,[165] saying that the capacity of the House to transact business is "created by the mere presence of a majority," and that since the Constitution does not prescribe any method for determining the

OF PRO

lenge of any other body or tribunal."[169] Where a rule affects private rights, the construction thereof becomes a judicial question. In United States v. Smith,[170] the Court held that the Senate's attempt to reconsider its confirmation of a person nominated by the President as Chairman of the Federal Power Commission was not warranted by its rules, and did not deprive the appointee of his title to the office. In Christoffel v. United States[171] a sharply divided Court upset a conviction for perjury in the district courts of one who had denied under oath before a House Committee any affiliation with Communism. The reversal was based o

HE HOUSES O

ng the power of the Senate to investigate charges that some Senators had been speculating in sugar stocks during the consideration of a tariff bill, the Supreme Court asserted that "the right to expel extends to all cases where the offence is such as in the judgment of the Senate is inconsistent with the trust and duty of a Member."[175] It cited with apparent approval the acti

TO KEEP

the vote was on any particular question, the Journal must be presumed to show the truth, and a statement therein that a quorum was present, though not disclosed by the yeas and nays, is final.[177] But when an enrolled bill, which has been signed by the Speaker of the House and by the President of the Senate, in open session, receives the appro

the United States. They shall in all Cases, except Treason, Felony and Breach of the Peace, be privileged from Arrest during their Attendance at the Session of t

unities and Disab

HE PAY

entitled to the seat and salary, even though the House subsequently declares his seat vacant. The one who contested the election and was

GE FROM

was adopted.[180] It does not apply to service of process in either civil[181] or criminal cases.[182] Nor does it apply to arrest in any criminal

GE OF SPEEC

of their office without fear of prosecutions, civil or criminal. I, therefore, think that the article ought not to be construed strictly, but liberally, that the full design of it may be answered. I will not confine it to delivering an opinion, uttering a speech, or haranguing in debate, but will extend it to the giving of a vote, to the making of a written report, and to every other act resulting from the nature and in the execution of the office. And I would define the article as securing to every member exemption from prosecution for everything said or done by him as a representative, in the exercise of the functions of that office, without inquiring whether the exercise was regular, according to the rules of the House, or irregular an

e Authority of the United States, which shall have been created, or the Emoluments whereof shall have been encreased during such

ATIBLE

1909, after having increased the salary of the Secretary of State,[192] Congress reduced it to the former figure so that a Member of the Senate at the time the increase was voted would be eligible for that office.[193] The first clause again became a subject of discussion in 1937, when Justice Black was appointed to the Supreme Court in face of the fact that Congress had recently improved the fi

originate in the House of Representatives; but the Senate

ider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by yeas and Nays, and the Names of the Pers

ISLATIV

NUE

et the expenses attending the execution of the act," imposed a tax on the circulating notes of national banks was held not to be a revenue measure which must originate in the House of Representatives.[196] Neither was a bill which provided that the District of Columbia should raise by taxation and pay to designated railroad companies a specified su

BY THE

y in case of approval of a measure is merely to sign it. He need not write on the bill the word "approved" nor the date. If no date appears on the face of the roll, the Court may ascertain the fact by resort to any source of information capable of furnishing a satisfact

VETO

brief recess by the House in which a bill originated, while the Congress is still in session, does not prevent the return of a bill by delivery to one of the officers of the House who has implied authority to receive it.[207] The two-thirds vote of each House required to pass a bill over a veto means two-thirds of a quorum.[208

journment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved

ION OF RE

resolutions" and stand on a level with "bills," which if "enacted" become Statutes. But "votes" taken in either House preliminary to the final passage of legislation need not be submitted to the President, nor resolutions passed by the Houses concurrently with a view to expressing an opinion or to devising a common program of action (e.g., the concurrent resolutions by which during the fight over Reconstruction the Southern States were excluded from representation in the House and Senate, the Joint Committee on Reconstruction containing members from both Houses was created, etc.), or to directing the expenditure of money appropriated to the use of the two Houses.[211] Within recent years the concurrent resolution has been put to a new use-the termination of powers delegated to the Chief Executive, or the disapproval of partic

ises, to pay the Debts and provide for the common Defence and general Welfare of the Unite

ng-Spend

TAXES P

irect taxes by the rule of uniformity. The Court has emphasized the sweeping character of this power by saying from time to time that it "reaches every subject,"[216] that it is "exhaustive"[217] or that it "embraces every conceivable power of taxa

FORBIDDEN SUB

eral judges in measuring the liability for a nondiscriminatory income tax violated the constitutional mandate that the compensation of such judges should not be diminished during their continuance in office was repudiated in O'Malley v. Woodrough.[221] The specific ruling of Collector

FALL OF COL

er the Court took the logical further step of holding that the federal income tax could not be imposed on income received by a municipal corporation from its investments.[226] A far-reaching extension of private immunity was granted in Pollock v. Farmers Loan and Trust Co.,[227] where interest received by a private investor on State or municipal bonds was held to be exempt from federal taxation. As the apprehensions of this era subsided, the doctrine of these cases was pushed into the background. It never received the same wide appl

ATION OF ST

rking a clear departure from the logic of Collector v. Day was Flint v. Stone Tracy Company,[233] where the Court sustained an act of Congress taxing the privilege of doing business as a corporation, the tax being measured by the income. The argument that the tax imposed an unconstitutional burden on the exercise by a State of its reserved power to create corporate franchises was rejected, partly in consideration of the principle of national supremacy, and partly on the ground that the corporate franchises were private property. This case also qualified Pollock v. Farmers Loan and Trust Company to the extent of allowing interest on State bonds to be included in measuring the tax on the corporation. Subsequent cases have sustained an estate tax on the net estate of a decedent, including State bonds;[234] excise taxes on the

UNITY LEFT

g v. Gerhardt,[244] where, without overruling Collector v. Day, it narrowed the immunity of salaries of State officers and federal income taxation, the Court announced "* * *, two guiding principles of limitation for holding the tax immunity of State instrumentalities to its proper function. The one, dependent upon the nature of the function being performed by the State or in its behalf, excludes from the immunity activities thought not to be essential to the preservation of State governments even though the tax be collected from the State treasury. * * * The other principle, exemplif

G VIEWS ON

e same subject matter."[247] In a concurring opinion in which Justices Reed, Murphy, and Burton joined, Chief Justice Stone rejected the criterion of discrimination. He repeated what he had said in an earlier case to the effect that "'* * * the limitation upon the taxing power of each, so far as it affects the other, must receive a practical construction which permits both to function with the minimum of interference each with the other; and that limitation cannot be so varied or extended as seriously to impair either the taxing power of the government imposing the tax * * * or the appropriate exercise of the functions of the government affected by it.'"[248] Justices Doug

E OF UN

clause accordingly places no obstacle in the way of legislative classification for the purpose of taxation, nor in the way of what is called progressive taxation.[253] A taxing statute does not fail of the prescribed uniformity because its operation and incidence may be affected by differences in State laws.[254] A federal estate tax law which permitted a deduction for a like tax paid to a State was not rendered invalid by the fact that one State levied no such tax.[255] The term "United State

ES OF

ion by

trade within State limits, merely express "the purpose of the government not to interfere * * * with the trade nominally licensed, if the required taxes are paid." Whether the "licensed" trade shall be permitted at all is a question for decision by the State.[261] This, nevertheless, does not signify that Congress may not often regulate to some extent a business within a State in order the more effectively to tax it. Under the necessary and proper clause, Congress may do this very thing. Not only has the Court sustained regulations concern

ation by

though the revenue obtained is obviously negligible, * * *, or the revenue purpose of the tax may be secondary, * * * Nor does a tax statute necessarily fall because it touches on activities which Congress might not otherwise regulate. As was pointed out in Magnano Co. v. Hamilton, 292 U.S. 40, 47 (1934): 'From the beginning of our government, the courts have sustained taxes although imposed with the collateral intent of effecting ulterior ends which, considered apart, were beyond the constitutional power of the lawmakers to realize by legislation directly addressed to their accomplishment.'"[267] But where the tax is conditional, and may be avoided by compliance with regul

tective

ress, either expressly or by clear implication, formulates its rule to guide the President and his advisory Tariff Commission as one directed to a tariff system of protection that will avoid damaging competition to the country's industries by the importation of goods from other countries at too low a rate to equalize foreign and domestic competition in the markets of the United States. It is contended that the only power of Congress in the levying of customs duties is to create revenue, and that it is unconstitutional to frame the customs duties with any other view than that of revenue raising. * * * In this first Congress sat many members of the Constitutional Convention of 1787. This Court has repeatedly laid down the principle that a contemporaneous legis

OR THE GEN

he laying of taxes is the power, and the general welfare the purpose for which the power is to be exercised. They [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 fo

on v.

erely instrumental to its remaining powers, in other words, as little more than a power of self-support.[277] From an early date Congress has acted upon the interpretation espoused by Hamilton. Appropriations for subsidies[278] and for an ever increasing variety of "internal improvements"[279] constructed by the Federal Government, had

the Hamilto

al Government to acquire land within a State for use as a national park. Finally, in United States v. Butler,[287] the Court gave its unqualified endorsement to Hamilton's views on the taxing power. Wrote Justice Roberts for the Court: "Since the foundation of the Nation sharp differences of opinion have persisted as to the true interpretation of the phrase. Madison asserted it amounted to no more than a reference to the other powers enumerated in the subsequent clauses of the same section; that, as the United States is a government of limited and enumerated powers, the grant of power to tax and spend for the general national welfare must be confined to the enumerated legislative fields committed to the Congress. In this view the phrase is mere tautology, for taxation and appropriation are or may be necessary incidents of the exercise of any of the enumerated legislative powers. Hamilton, on the other hand, maintained the clause confers a power separate and distinct from those later enumerated, is not restricted in meaning by the grant

urity A

v. Davis,[290] which sustained the tax imposed on employers to provide unemployment benefits, and the credit allowed for similar taxes paid to a State. To the argument that the tax and credit in combination were "weapons of coercion, destroying or impairing the autonomy of the States," the Court replied that relief of unemployment was a legitimate object of federal expenditure under the "general welfare" clause; that the Social Security Act represented a legitimate attempt to solve the problem by the cooperation of State and Federa

rked

coconut oil was sustained despite the fact that the tax collected upon oil of Philippine production was segregated and paid into the Philippine Treasury.[293] In Helvering v. Davis,[294] the excise tax on employers,

nal Gran

he Hatch Act,[297] whereby its right to receive federal highway funds would be diminished in consequence of its failure to remove from office a member of the State Highway Commission found to have taken an active part in party politics while in office. Although it found that the State had created a legal right which entitled it to an adjudication of its objection, the Court denied the relief sought on the ground that, "While the United States is not concerned with, and has no power to regulate local poli

the Unit

sly enough, this power was first invoked to assist the United States to collect a debt due to it. In United States v. Fisher[301] the Supreme Court sustained a statute which gave the Federal Government priority in the distribution of the estates of its insolvent debtors. The debtor in that case was the endorser of a foreign bill of exchange which apparently had been purchased by the United States. Invoking the "necessary and prop

e Power * * * To borrow Money on

rrowin

it the making them a tender." After a spirited exchange of views on the subject of paper money the convention voted, nine States to two, to delete the words "and emit bills."[304] Nevertheless, in 1870, the Court relied in part upon this clause in holding that Congress had authority to issue treasury notes and to make them legal tender in satisfaction of antecedent debts.[305] When it bo

regulate Commerce with foreign Nations, and amo

of the

e was long the more important one from the point of view of Constitutional Law. Of the approximately 1400 cases which reached the Supreme Court under the clause prior to 1900, the overwhelming proportion stemmed from State legislation.[307] It resulted that, with an important exception to be noted in a moment, the guiding lines in construction of the clause

f Terms: Gib

MME

sending from Elizabethtown, New Jersey, into the Hudson in the State of New York two steam vessels which had been licensed and enrolled to engage in the coasting trade under an act passed by Congress in 1793. Counsel for Ogden (an assignee of Livingston and Fulton) argued that since Gibbons' vessels carried only passengers between New Jersey and New York, they were not engaged in traffic and hence not in "commerce" in the sense of the Constitution. This argument Chief Justice Marshall answered as follows: "The subject to be regulated is commerce; * * * The counsel for the appellee would limit it to traffic, to buying and selli

ERCE"

ers every species of movement of persons and things, whether for profit or not;[311] every species of communication, every species of transmission of intelligence, whether for commercial purposes or otherwise;[312] every spe

g of contracts for the insertion of advertisements in periodicals in another State;[317] contracts for personal services to be rendered in another State.[318] Recent decisions either overturn or cast doubt on most if not all of these holdings. By one of these the gathering of news by a press association and its transmission to client newspapers is termed interstate com

ARY AND PRO

power of Congress "* * * To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, * * *,"[322] with the result that, as is pointed out later, "interstate commerce" has come in rece

HE SEVER

en selected to indicate the completely interior traffic of a State"; and added: "The genius and character of the whole government seem to be, that its action is to be applied to all external concerns of the nation, and to those internal concerns which

is inference overlooked the fact that, in consequence of its powers under the necessary and proper clause, Congress can, as Marshall indicates in the words above quoted, interfere with the completely internal concerns of a State "for the purpose of exec

phasize the fact that "the power of Congress does not stop at the jurisdictional lines of the several States," but "must be exercised whenever [wherever?] the subject exists. * * * Commerce among th

GUL

lain terms, and do not affect the questions which arise in this case, or which have been discussed at the bar. If, as has always been understood, the sovereignty of Congress, though limited to specified objects, is plenary as to those objects, the power over commerce with foreign nations, and among the several States, is vested in Congress as absolutely as it would be in a single government, having in its constitution the same restrictions on the exercise of the

VERSUS FORE

s the same as the power to regulate commerce with foreign nations, and among the Indian tribes. But is its scope the same? * * *, the power to regulate commerce with foreign nations and the power to regulate interstate commerce, are to be taken diverso intuitu, for the latter was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse; while the former clothes Congress with that power over international commerce, pertaining to a sovereign nation in its intercourse with foreign nations, and subject, generally sp

ngress to regulate interstate commerce, but the very postulate upon which the authority of Congress to absolutely prohibit foreign importations as expounded by the decisions of this court rests is the broad dis

ensive with it."[332] And nearly fifty years later Justice Field, speaking for the Court, said: "The power to regulate commerce among the several States was granted to Congress in terms as absolute as is the power to regulate commerce with foreign nations."[333] Today it is firmly established doctrine that the power

r, protect, control and restrain, [commerce]."[337] This protective power has, moreover, two dimensions. In the first place, it includes the power to reach and remove every conceivable obstacle to or restriction upon interstate and foreign commerce from whatever source arising, whether it results from unfavorable conditions within the States or from S

ENTS OF

is holding was given its classic expression in the opinion of Chief Justice Waite in the case of the Pensacola Telegraph Co. v. Western Union Co.,[340] a case closely paralleling Gibbons v. Ogden in other respects also. The passage alluded to reads as follows: "The powers thus granted are not confined to the instrumentalities of commerce, or the postal service known or in use when the Constitution was adopted, but they keep pace with the progress of the country, and adapt themselves to the new developments of times and circumstances. They extend from the horse with its rider to the stage-coach, from the sailing-vessel to the steamboat, from the coach and the steamboat to the railroad, and from the railroad to the telegraph, as these new agencies are successively brought into use to meet the d

l Regulation

IGA

Ohio River "free and common to the citizens of the United States." The injunction was promptly rendered inoperative by an act of Congress declaring the bridge to be "a lawful structure" and requiring all vessels navigating the Ohio to be so regulated as not to interfere with it.[344] This act the Court sustained as within Congress's power under the commerce clause, saying: "So far, * * *, as this bridge created an obstruction to the free navigation of the river, in view of the previous acts of Congress, they [the said acts] are to be regarded as modified by this subsequent le

ll the navigable waters of the United States which are accessible from a State other than those in which they lie. For this purpose they are the public property of the nation, and subject to all requisite legislation by Congress. This necessarily includes the power to keep them open and free from any obstruction to their navigation, interposed by the States or otherwise;

uired to compensate the owners of such structures for their loss, since they were always subject to the servitude represented by Congress's powers over commerce; and the same is true of the property of riparian owners which is damaged.[349] And while it was former

mply that the waters are public and within the Union, but that they have attached to them some circumstance that brings them within the scope of the sovereignty of the United States as defined by the Constitution." Then as a sort of reductio ad absurdum counsel added: "* * * if merely because a stream is a highway it becomes a navigable water of the United States, in a sense that attaches to it and to the vessels trading upon it the regulating control of Congress, then every highway must be regarded as a highway of the United States, and the vehicles upon it must be subject to the same control. But this will not be asserted on the part of the Government."[354] The Court answered: "In this case it is admitted that the steamer was engaged in shipping and transporting down Grand River, goods destined and marked for other States than Michigan, and in receiving and transporting up the river goods brought within the State from without its limits; * * * So far as she was employed in transporting goods destined for other States, or goods brought from without the limits of Michigan and destined to places within that State, she was engaged in commerce between the States, and however limited that commerce may have been, she was, so far as it went, subject to the legislation of Congress. She was employed as an instrument of that commerce; for whenever a commodity has begun to move as an

LECTRI

te commerce imposes upon such streams, they are practically unable, without the assent of Congress, to utilize their prerogative for power development purposes. Sensing, no doubt, that controlling power to this end must be attributed to some government in the United States and that "in such matters there can be no divided empire,"[359] the Court held, in 1913, in United States v. Chandler-Dunbar Co.,[360] that in constructing works for the improvement

iction Over Navig

ted to the control of navigation, * * *, the erection and maintenance of such dam and reservoir are clearly within the powers conferred upon Congress. Whether the particular structures proposed are reasonably necessary, is not for this Court to determine. * * * And the fact that purposes other than navigation will also be served could not invalidate the exercise of the authority conferred, even if those other purposes would not alone have justified an exercise of congressional power."[364] And in the Appalachian Electric Power case, the Court, abandoning previous holdings which had laid down the doctrine that to be subject to Congress's power to regulate commerce a stream must be "navigable in fact," said: "A waterway, otherwise suitable for navigation, is

Which Power M

authority is as broad as the needs of commerce. * * * Flood protection, watershed development, recovery of the cost of improvements through utilization of power are likewise parts of commerce control."[366] These views the Court has since reiterated.[367] Nor is i

egulation of La

DERAL PROVISIO

he Pacific; and four years later it chartered the Union Pacific Company.[369] First and last, litigation growing out of this type of legislation has resulted in the establishment in judicial decision of the following propositions: First, that Congress may provide highways for interstate transportation (earlier, as well as today, this result might have followed from Congress's power of spendi

FEDERAL RAIL

troops, governmental supplies, and mails, to their destination";[371] while by an act passed on July 24 of the same year it was ordered, "in the interest of commerce and the convenient transmission of intelligence * * * by the government of the United States and its citizens, that the erection of telegraph lines shall, so far as State interference is concerned

he owners or masters of steam, sailing, or other vessels carrying or transporting cattle, sheep, swine, or other animals from one State to another, shall confine the same in cars, boats, or vessels of any description, for a longe

D RATES: THE INTERSTA

due process of law clause of Amendment XIV. The principal circumstance, however, which shaped the Court's attitude toward the "Granger Laws" had, by a decade later, disappeared, the fact, namely, that originally the railroad business was largely in local hands. In consequence, first, of the panic of 1873, and then of the panic of 1885, hundreds of these small lines went into bankruptcy, from which they emerged consolidated into great interstate systems. The result for the Court's interpretation

provisions of the act. In Interstate Commerce Commission v. Brimson,[377] decided in 1894, the validity of the Commission as a means "necessary and proper" for the enforcement of Congress's power to regulate commerce among the States was sustained, as well as its right to enter the courts of the United Stat

e power, after a full hearing on a complaint made to it, "to determine and prescribe just and reasonable" maximum rates. By the latter it was further authorized to set such rates on its own initiative, and without waiting for a complai

E COMMERCE CO

ral or artificial, engaged in such transportation or transmission as aforesaid as common carriers for hire." The jurisdiction of the Commission covers not only the characteristic activities of such carriers in commerce among the States, but also the issuance of securities by them, and all consolidations of existing companies, or lines. Furthermore, for the first time, the Commission was put under the injunction, in exercising its control over rates and charges, to "give due consideration, among o

safeguards which the Bill of Rights throws about property rights; 2. Those arising out of the intermingling of the interstate and intrast

REVEPO

dly subject to the Commission. The local rates were as clearly within the normal jurisdiction of the State, and had in fact been set by the Texas Railway Commission. The Court found that the Interstate Commerce Commission had not exceeded its statutory powers. The constitutional objection to the Commission's action was stated thus: "That Congress is impotent to control the intrastate charges of an interstate carrier even to the extent necessary to prevent injurious discrimination against interstate traffic." This objection the Court met, as follows: "Wherever the interstate and intrastate transactions of carriers are so related that the government of the

AND STATE RAILWA

rce as a whole, instead of specific firms or localities, is made the beneficiary of the restriction. In the Wisconsin R.R. Comm. v. Chicago, B. & Q.R.R. Co.,[386] the Court held that this section sustained the Interstate Commerce Commission in annulling intrastate passenger rates which it fo

R AGENTS OF CARRIA

power to regulate the price of such electricity.[390] Proceeding on this implication Congress, in the Federal Power Act of 1935,[391] conferred upon the Federal Power Commission the power to govern the wholesale distribution of electricity in interstate commerce; and three years later vested in the same body like power over natural gas moving in interstate commerce.[392] In Federal Power Commission v. Natural Gas Pipeline Company,[393] the power of the Commission to set the prices at which gas, originating in one State and transported into another, should be sold to distributors wholesale in the latter State, was sustained by the Court in the following terms: "The argument that the provisio

or Carrier Act of 1935, which, through the Interstate Commerce Commission, governs the transportation of persons and property by motor vehicle common carriers;[396] the Civil Aeronautics Act of 1938, enacted for the purpose of bringing under the control of a central agency, ca

IVE OF LABOR ENGAGED IN

railway engaged in interstate commerce * * * and to all other locomotives * * * cars," etc., "used in connection therewith."[399] In Southern Railway Company v. United States,[400] the validity of this extension of the act was challenged. The Court sustained the measure as being within Congress's power, saying: "* * * this is so, not because Congress possesses any power to regulate intrastate commerce as such, but because its power to regulat

whether a restriction upon the hours of labor of employés who are connected with the movement of trains in interstate transportation is comprehended within this sphere of authorized legislation. This question admits of but one answer. The length of hours of service has direct relation to the efficiency of the human agencies upon which protection of life and property necessarily depends. * * * In its power suit

he courts of the States.[405] Countering this argument, the Court, speaking by Justice Van Devanter, quoted the following passage from the brief of the Solicitor-General: "Interstate commerce-if not always, at any rate when the commerce is transportation-is an act. Congress, of course, can do anything which, in the exercise by itself of a fair discretion, may be deemed appropriate to save the act of interstate commerce from prevention or interruption, or to make that act more secure, more reliable or more efficient. The act of interstate commerce is done by the labor of men and with the help of things; and these men and things are the agents and instruments of the commerce. If the agents or instruments are destroyed while they are doing the act, commerce is stopped; if the agents or instruments are interrupted, commerce is inter

Adai

Liability Cases. Here was involved the validity of § 10 of the "Erdman Act" of 1898,[408] by which it was made a misdemeanor for a carrier or agent thereof to require of an employee, as a condition of employment, that he should not become or remain a member of a trade union, or to threaten him with loss of employment if he should become or remain a member. This proviso the Court held not to be a regulation of commerce, there being no connection between an employee

oad Retir

ends to impose by sheer fiat noncontractual incidents upon the relation of employer and employee, not as a rule or regulation of commerce and transportation between the States, but as a means of assuring a particular class of employees against old age dependency. This is neither a necessary nor an appropriate rule or regulation affecting the due fulfillment of the railroads' duty to serve the public in interstate transportation."[413] Chief Justice Hughes, speaking for the dissenters, contended, on the contrary, that "the morale of the employees [had] an important bearing upon the efficiency of the transportation service." He added: "The fundamental consideration which supports this type of legislation is that industry should take care of its human wastage, whether that is due to accident or age. That

ADING; THE

e power of Congress is to be necessarily tested by the intrinsic existence of commerce in the particular subject dealt with, instead of by the relation of that subject to commerce and its effect upon it. We say mistakenly assumes, because we think it clear that if the proposition were sustained it would destroy the power of Congress to regulate, as obviously that power, if it is to exist, must include the authority to deal with obstructions to interstate commerce (In re Debs, 158 U.S. 564) and with a host of other acts which, because of their relation to and influence upon interstate commerce, come within the power of Congress to regulate, although they are not interstate commerce in and of themselves.

egulation of Co

CT; THE "SUGA

the cancellation of certain agreements, whereby, through purchases of stock in other companies, the American Sugar Refining Company, had "acquired," it was conceded, "nearly complete control of the manufacture of refined sugars in the United States." The question of the validity of the act was not expressly discussed by the Court, but was subordinated to that of its proper construction. So proceeding, the Court, in pursuance of doctrines of Constitutional Law which were then dominant with it, turned the act from its intended purpose and destroyed its effectiveness for several years, as that of the Interstate Commerce Act was being contemporaneously impaired. The following passage early in Chief Justice

t, however inevitable and whatever its extent," and as such beyond the purview of the act.[421] Applying then the above reasoning to the case before it, the Court proceeded: "The object [of the combination] was manifestly private gain in the manufacture of the commodity, but not through the control of interstate or foreign commerce. It is true that the bill alleged that the products of these refineries were sold and distributed among the several States, and that all the companies were engaged in trade or commerce with the several States and with foreign nations; but this was no more than to say that trade and commerce served manufacture to fulfil its function. Sugar was refined for sale, and sales were probably made at

RMAN AC

e case, the parties to which were manufacturing concerns, effected a division of territory among them, and so involved, it was held, a "direct" restraint on the distribution and hence of the transportation of the produ

COMMERCE" CONCEP

hat they had entered into a combination to refrain from bidding against each other in the local markets, to fix the prices at which they would sell, to restrict shipments of meat, and to do other forbidden acts. The case was appealed to the Supreme Court on defendants' contention that certain of the acts compl

he general design. Even if they imported a technical passing of title at the slaughtering places, they also imported that the sales were to persons in other States, and that shipments to such States were part of the transaction.[427] Thus, sales of the type which in the Sugar Trust Case were thrust to one side as immaterial from the point of view of the law, because they enabled manufacture "to fulfill its function," were here treated as merged in an interstate commerce stream. Thus, the concept of commerce as trade, that is, as traffic, again entered the Constitutional Law picture, with the result that conditions which directly affected interstate trade could not be dismissed on the ground that they affected interstate commerce, in the sense of

URY HATT

of cases in which combinations of employees engaged in such intrastate activities as manufacturing, mining, building construction, and the distribution

AND GRAIN F

rds of the country was brought under national supervision; and the year following it passed the Grain Futures Act[431] whereby exchanges deal

ing centers on the borders of that region, and thence in the form of meat products to the consuming cities of the country in the Middle West and East, or, still as livestock, to the feeding places and fattening farms in the Middle West or East for further preparation for the market."[4

f price. "The question of price dominates trade between the States. Sales of an article which affect the country-wide price of the article directly affect the country-wide commerce in it."[437] Thus a practice which demonstrably affects prices would also affect interstate trade "directly," and so, even though local in itself, would fall within the regulatory power of Congress. In the following passage, indeed, Chief Justice Taft whittles down, in both cases, the "direct-indirect" formula to the vanishing point: "Whatever amounts to more or less constant practice, and threatens to obstruct or unduly to burden the freedom of interstate commerce is within the regulatory power of Congress under the commerce clause, and it is primarily for Congress to consider and decide the fact of the danger and meet it. This court will certainly not substitute its judgment for that of Congress in

ES AND EXCHA

ate commerce and the mails to dealers refusing to register under the act. The latter requires, by sections 4 (a) and 5, the companies which are governed by it to register with the Securities and Exchange Commission and to inform it concerning their business, organization and financial structure, all on pain of being prohibited use of the facilities of interstate commerce and the mails; while by

ion of Production and

ESSION L

nauguration, the problem which confronted the new Administration was clearly set forth: "When industry is grievously hurt, when producing con

INDUSTRIAL

" affected "the public welfare," and undermined "the standards of living of the American people." To effect the removal of these conditions the President was authorized, upon the application of industrial or trade groups, to approve "codes of fair competition," or to prescribe the same in cases where such applications were not duly

HECHTE

sale market interstate commerce in them ceased. The act, however, also purported to govern business activities which "affected" interstate commerce. This, Chief Justice Hughes held, must be taken to mean "directly" affect such commerce: "the distinction between direct and indirect effects of intrastate transactions upon interstate commerce must be recognized as

LTURAL ADJ

[448] As is pointed out elsewhere the measure was set aside as an attempt to regulate production, a

US COAL CONS

try, was violative of the Constitution and void.[451] Justice Sutherland's opinion set out from Chief Justice Hughes's assertion in the Schechter Case of the "fundamental" character of the distinction between "direct" and "indirect" effects; that is to say, from the doctrine of the Sugar Trust Case. It then proceeded: "Much stress is put upon the evils which come from the struggle between employers and employees over the matter of wages, working conditions, the right of collective bargaining, etc., and the resulting strikes, curtailment and irregularity of production and effect on prices; and it is insisted that interstate commerce is greatly affected thereby. But, ..., the conclusive answer is that the evils are all local evils over which the Federal Government has no legisla

AL LABOR R

ates, and altogether it gave employment to many thousands of workers. A vast industrial commonwealth such as this, whose operations constantly traversed State lines, comprised, they contended, a species of territorial enclave which was subject in all its parts to the only governmental power capable of dealing with it as an entity, that is, the National Government. Yet even if this were not so, still the protective power of Congress over interstate commerce must be deemed to extend to disruptive strikes by employees of such an immense concern, and hence to include power to remove the causes of such strikes. The Court, speaking through Chief Justice Hughes, held the corporation to be subject to the act on the latter ground. "The close and intimate effect," said he, "which brings the subject within the reach of federal power may be due to activities in relation to productive industry although the industry when separately viewed is local." Nor w

ion was forthwith held to apply also to two minor concerns;[457] and in a later case the Court stated specifically that "the smallness of the volume of commerce affected in any particular case" i

STANDARDS ACT

gulation are plainly to make effective the congressional conception of public policy that interstate commerce should not be made the instrument of competition in the distribution of goods produced under substandard labor conditions, which competition is injurious to the commerce and to the States from and to which commerce flows."[461] In support of the decision the Court invokes Chief Justice Marshall's reading of the necessary and proper clause in McCulloch v. Maryland and his reading of the commerce clause in Gibbons v. Ogden.[462] Objections purporting to be based on the Tenth Amendment are met from the same point of view: "Our conclusion is unaffected by the Tenth Amendment which provides: '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 amendment states but a truism that all is retained which has not been surrendered. There is nothing in the history of its adoption to suggest that it was mo

RAL MARKETING

e dairy company demurred to the regulation on the ground of its applying to milk produced and sold intrastate. Sustaining the order the Court said: "Congress plainly has power to regulate the price of milk distributed through the medium of interstate commerce, * * *, and it possesses every power needed to make that regulation effective. The commerce power is not confined in its exercise to the regulation of commerce among the States. It extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end, the

on such wheat overhangs the market and, if induced by rising prices, tends to flow into the market and check price increases. But if we assume that it is never marketed, it supplies a need of the man who grew it which would otherwise be reflected by purchases in the open market. Home-grown wheat in this sense competes with wheat in commerce. The stimulation of commerce is a use of the regulatory function quite as definitely as prohibitions or restrictions thereon. This record leaves us in no doubt that Congress may properly have considered that wheat consumed on the farm where grown, if wholly outside the scheme of regulatio

ress Prohibi

ERCE; JEFFER

To this it may be replied, that the acts under consideration, though of very ample extent, do not operate as a prohibition of all foreign commerce. It will be admitted that partial prohibitions are authorized by the expression; and how shall the degree, or extent, of the prohibition be adjusted, but by the discretion of the National Government, to whom the subject appears to be committed? * * * The term does not necessarily include shipping or navigation; much less does it include the fisheries. Yet it never has been contended, that they are not the proper objects of national regulation; and several acts of Congress have been made respecting them. * * * [Furthermore] if it be admitted that national regulations relative to commerce, may apply it as an instrument, and are not necessarily confined to its direct aid and advancement, the sphere of legislative discretion is, of course, more widely extended; and, in time of war, or of great impending peril, it must take a still more expanded range. Congress has power to declare

ERCE; PROTEC

a vested right to carry on foreign commerce with the United States. * * * It is true that the taxing power is a distinct power; that it is distinct from the power to regulate commerce. * * * It is also true that the taxing power embraces the power to lay duties. Art. I, § 8, cl. 1. But because the taxing power is a distinct power and embraces the power to lay duties, it does not follow that duties may not be imposed in the exercise of the power to regulate commerce. T

MERCE; BANN

forbade the importation of any tea "inferior in purity, quality, and fitness for consumption" as compared with a legal standard.[480] The act was sustained in 1904, in the leading case of Buttfield v. Stranahan.[481] In "The Abby Dodge" case an act excluding sponges taken by means of diving or diving apparatus from the waters of the Gulf of Mexico or Straits of Florida was sustained, but construed as not applying to sponges taken from the territorial waters of a State.[482] In Weber v. Freed[483] an act prohibiting the importation and interstate transportation of prize-fight films or of pictorial representation of prize fights was upheld. Speaking for the unanimous Court, Chief Justice White said: "In view of the complete power of Congress over foreign commerce and its authority to prohibit the introduction

CE; CONFLICT OF D

tance for the future of American Federalism. The issue was as early as 1841 brought forward by Henry Clay, in an argument before the Court in which he raised the specter of an act of Congress forbidding the interstate slave trade.[487] The debate was concluded ninety-nine years later by the decision in United States v. Darby, in whic

PROHIBITIVE OF IN

ntine upon all shipments of cattle from one State to another when the public necessity might demand it.[490] A statute passed in 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.[491] In 1912 a similar exclusion of diseased nursery stock was decreed,[492] while by the same act, and again by an act of 1917,[493] the Secretary of Agriculture

OTTER

cluding lottery tickets from the mails had been upheld in the earlier case of In re Rapier,[497] on the proposition that Congress clearly had the power to see that the very facilities furnished by it were not put to bad

other hand, prepared by Justice Harlan, marked an almost unqualified triumph at the time for the view that Congress's power to regulate commerce among the States includes the power to prohibit it, especially to supplement and support State legislation enacted under the police power.[498] Early in the opinion extensive quotation is made from Chief Justice Marshall's opinion in Gibbons v. Ogden,[499] with special stress upon the definition there given of the phrase "to

BITIONS AND ST

ilists.[509] The conception of the Federal System on which the Court based its validation of this legislation was stated by it in 1913 in sustaining the Mann "White Slave" Act in the following words: "Our dual form of government has its perplexities, State and Nation having different spheres of jurisdiction, * * *, but it must be kept in mind that we are one people; and the powers reserved to the States and those conferred on the Nation are adapted to be exercised, whether independently or concurrently, to promote the general welfare, material, and moral."[510] At the same time, the Court made it plain that in prohibiting c

v. DA

the Court, "is as essential to the preservation of our institutions as is the conservation of the supremacy of the federal power in all matters entrusted to the Nation by the Federal Constitution."[514] As to earlier decisions sustaining Congress's prohibitory powers, Justice Day said: "In each of these instances the use of interstate transportation was necessary to the accomplishment of harmful results. * * * This element is wanting in the present case. * * * The goods shipped are in themselves harmless. * * * When offered for shipment, and before transportation begins, the labo

merce which Congress may prohibit is an act of transportation from one State to the other which is followed in the latter by an act within the normal powers of government to prohibit. Commerce, however, is primarily traffic; and the theory of the Child Labor Act was that it was designed to discourage a widespread and pernicious i

MERCE IN STOLE

spread of any evil or harm to the people of other States from the State of origin." This statement was buttressed by a review of previous cases, including the explanation that the goods involved in Hammer v. Dagenhart were "harmless" and did not spread harm to persons in other States. Passing then to the measure before the Court, the Chief Justice noted "the radical change in transportation" brought about by the automobile, and the rise of "elaborately orga

ing the obvious fact that such thefts must necessarily occur before transportation of the thing stolen can take place, that is, under the formula followed in Hammer v. Dagenhart, before Congress's power over interstat

DARB

ohibition or its effect to control in some measure the use or production within the States of the article thus excluded from the commerce can operate to deprive the regulation of its constitutional authority has long since ceased to have force. * * * And finally we have declared 'The authority of the Federal Government over interstate commerce does not differ in extent or character from that retained by the States over intrastate commerce.' United States v. Rock Royal Co-operative, 307 U.S. 533, 569. The conclusion is inescapable that Hammer v. Dagenhart, was a departure from the principles

ND THE FED

rt] to make inroads upon our federal system either by indifference to its maintenance or excessive regard for the unifying forces of modern technology. Scholastic reasoning may prove that no activity is isolated within the boundaries of a single State,

use as a Restrai

NAL BA

in the power thus granted Congress, subject only to the operation of the supremacy clause. As Hamilton points out in The Federalist, while some of the powers which are vested in the National Government admit of their "concurrent" exercise by the States, others are of their very nature "exclusive," and

and destructive consequences, resulting from the legislation of so many different States, and to place it under the protection of a uniform law." In other words, the constitutional grant was itself a regulation of commerce in the interest of uniformity. Justice Johnson's testimony in his concurring opinion in the same case is to like effect: "There was not a State in the Union, in which there did not, at that tim

t on both sides in Gibbons v. Ogden, legislation by Congress regulative of any particular phase of commerce would still leave many other phases unregulated and consequently raise the question whether the States were entitled to fill the remaining gaps, if not by virtue of

acts, from whatever State power ensuing, the act of Congress is today recognized, and was recognized by Marshall, as enjoying an unquestionable supremacy.[526] But suppose, first, that Congress has passed no act; or secondly, that its legislation does not clearly cover the ground which certain State legislation before the Court attempts

GROUND; WEBSTE

ich, in their exercise, were to maintain a uniform and general system. From the very nature of the case, these powers must be exclusive; that is, the higher branches of commercial regulation must be exclusively committed to a single hand. What is it that is to be regulated? Not the commerce of the several States, respectively, but the commerce of the United States. Henceforth, the commerce of the States was to be a unit; and the system by which it was to exist and be governed, must necess

jurisdiction unregulated, it must be deemed to have done so of design, and its omissions, or silences, accordingly be left undisturbed by State action. Although Marshall, because he thought the New York act c

BOARD OF P

in 1851, is usually cited. The question at issue was the validity of a Pennsylvania pilotage act so far as it applied to vessels engaged in foreign commerce and the coastwise trade. The Court, speaking through Justice Curtis, sustained the act on the basis of a distinction between those subjects of commerce which "imperatively demand a single

the difference and brought the Curtis dictum abreast of Webster's earlier argument. The doctrine consequently came to be established, first, that Congress's power over interstate commerce is "exclusive" as to t

IAL F

y a State is here held to be out of the question. At the same time, the States have their police and taxing powers, and may use them as their own views of sound public policy may dictate even though interstate commerce may be "incidentally" or "indirectly" regulated, it being understood that such "incide

e to restrain it, and the maintenance in the States of efficient local governments. Thus, while formulas may serve to steady and guide its judgment, the Court's real function in this area of judicial review is essentially that of an arbitral or quasi-legislative body. So much so is this the case that i

Power and For

D; THE ORIGINAL

sale of an article is a tax on the article itself-a conception of the incidence of taxation which has at times had important repercussions in other fields of Constitutional Law; (4) that the taxing power of the State does not extend in any form to imports from abroad so long as they remain "the property of the importer, in his warehouse, in the original form or package" in which they were imported-the famous "original package doctrine"; (5) that once, however, the importer parts with his importations "or otherwise mixes them with the general property of the State by breaking up his pack

criminatory taxation by it. The criticism was partially anticipated by Marshall himself in the apprehensions which he voiced that any concession to "the great importing States" might be turned by them against the rest of the country. Indeed, he is uncertain whether the original package doctrine will prove sufficient for its purposes and accordingly offers it not as a rule "universal in its application," but

he Subject Matter o

CONSID

h it is carried on comprise the most ordinary subject matter of State power. In this field the Court has, consequently, been unable to rely upon sweeping solutions. To the contrary, its judgments have often been fluctuating and tentative, even contradictory; and this is particularly the case as respects the infringement of the State taxing power on interstate commerce. In the words of Justice Frankfurter: "The power of the States to tax and the limitations upon that power imposed by the Commerce Clause have necessitated a long, continuous process of judicial adjustment. The need for suc

E FREIGH

ransportation of freight, or of the subjects of commerce, is a constituent part of commerce itself; (2) a tax upon freight, transported from State to State, is a regulation of commerce among the States; (3) whenever the subjects in regard to which a power to regulate commerce is asserted are in their nature National, or admit of one uniform system or plan of regulation, they are exclusively within the regulating control of Congress; (4) transportation of passenger

IN T

still in the original package, unless they are foreign imports in the original package; and States may also impose a nondiscriminatory tax when there is a break in an interstate transit, and the goods have not been restored to the

o Lewiston in the same State, but had been detained at Errol by low water, the Supreme Court of New Hampshire itself ruled that the local tax did not apply, the logs being still in transit. As to the logs which had been cut in New Hampshire and lay on the shore or in tributaries of the river, both courts were again in agreement that they were still subject to local taxation, notwithstanding the intention o

OF MANUFACTUR

in this regard is intrinsic, is not affected by the intended use or disposal of the product, is not controlled by contractual engagements, and persists even though the business be conducted in close connection with interstate commerce."[544] Likewise an annual privilege tax on the business of producing natural gas in the State, computed on the value of the gas produced "as shown by the gross proceeds derived from the sale thereof by the producer," was held constitutional even though most of the gas passed into interstate commerce in continuous movement from the wells.[545] And in Utah Power and Light Co. v. Pfost[546] the generation of electricity in a State was held to be distingui

OR AN ESTABL

igin, provided at any rate their trans-shipment is not unduly delayed.[549] Thus, oil gathered into the pipe lines of a distributing company and intended for the most part for customers outside the State, is in interstate commerce from the moment it leaves the

INAL PACKAGE CONCEPT

d the invitation; first on the ground that Marshall's statement was obiter, the point not having been involved in Brown v. Maryland; second, because usage contemporary with the Constitution and of the Constitution itself confined the term "imports" as employed in article I, section 10 to imports from abroad; third, because the tax in question was nondiscriminatory. At the same time, nevertheless, reference was made to the power of Congress to interpose at any time in exercise of its power over commerce, "in such a manner as to prevent the States from any oppressive interference with the free interchange of commodities by the c

TION C

true, also, that in a series of cases involving sales of oil about 1920 the Court appeared to be contemplating reviving the original package doctrine,[562] but these holdings were presently "qualified" in a sweeping opinion by Chief Justice Taft, reviewing the cases.[563] But taxation is o

ALES: P

inserted in retail packages by the manufacturer or shipper outside the State and are redeemable outside the State, either by such manufacturer or shipper, or by some other agency outside the State;[566] nor yet a nondiscriminatory tax upon local peddling of goods and sales thereof by peddlers even though the goods are foreign or interstate imports, since the sale occurs after foreign or interstate commerce thereof has ended.[567] And in Kehrer v. Stewart[568] it was held that a State tax upon resident managing agents of nonresident meatpacking houses did not conflict with the commerce clause, regardless of the fact that the greater portion of the business was interstate in characte

GE IN

re detained for a time within the State by low water, they are deemed "in the course of commercial transportation, and * * * clearly under the protection of the Constitution."[572] Intention thus often enters into the determination of the question whether goods from another State have come to rest sufficiently to subject them to the local taxing power. In a typical case the Court held that oil shipped from Pennsylvania and held in tanks in Memphis, Tenn

tate railroad company to be used in replacements, repairs and extensions, and installed immediately upon arrival in the taxing State;[577] on equipment brought into the State by a telephone and telegraph company for operation, maintenance, and repair of its interstate system.[578] In all these cases the Court applied the principle that "use and storage" are subject to local taxation when "there is an interva

ROBBINS v. SHELBY C

ders was or was not made with sample,[582] and to sales which were not, accurately speaking, consummated until the actual delivery of the goods, which was attended by local incidents. So, where a North Carolina agent of a Chicago firm took orders for framed pictures, which were then sent to him packed separately from the frames and then framed by him before delivery, the rule laid down in the Robbins case was held to apply throughout, with the result that North Carolina could tax or license no part of the transaction described;[583] so also as to a sewing machine ordered by a customer in North Carolina and sent to her C.O.D.;[584] so also as to brooms sent in quantity for the fulfillment of a number of orders, and subject to rejection by the purchaser if deemed by him not up to sample.[585] Said Justice Holmes in the case last referred to: "'Commerce among the States' is a practical conception not drawn from the 'witty diversities' * * * of the l

OF THE RO

ion selling automobiles built by a foreign corporation under an arrangement by which the latter agreed to build for and sell to the former, for cash, at a specified price less than list price, was not a tax on interstate transactions, there being nothing which connected the ultimate buyer with the manufacturer but a warranty and the buyer's agreement to pay the list price f.o.b. factory. Similarly, in Browning v. Waycross[593] it was held that the business of erecting lightning rods within the limits of a town by the agent of a nonresident manufacturer on whose behalf such agent had solicited orders for the sale of the rods, and from whom he had received them when shipped into the State, was validly subjected to a municipal license tax. "It was not," said the Court, "within the power of the parties by the form of their contract to convert what was exclusively a local business, * * *, into an interstate commerce business * * *"[594] Also, a municipal license tax upon persons engaged in t

BINS CA

udicial reaction against it still more pronounced. Indeed, by the Court's decision in McGoldrick v. Berwind-White Co.,[597] in 1940, the authority of the entire line of cases descending from Robbins v. Shelby County Taxing District was seriously impaired, for the time being, while a

N CASES:

as involved a State of Washington two per cent tax on the privilege of using products coming from sister States. Excepted from the tax, on the other hand, was any property the sole use of which had already been subjected to an equal or greater tax, whether under the laws of Washington or any other State. Stressing this provision in its opini

N CASES:

ared any "distinction * * * between a tax laid on sales made, without previous contract, after the merchandise had crossed the State boundary, and sales, the contracts for which when made contemplate or require the transportation of merchandise interstate to the taxing State," to be "without the support of reason or authority";[602] and the Robbins case was held to be "narrowly limited to fixed-sum license taxes i

E DEPRESS

sales tax and a use tax in many instances may bring about the same result. But they are different in conception, are assessments upon different transactions, * * * A sales tax is a tax on the freedom of purchase * * * A use tax is a tax on the enjoyment of that which was purchased. In view of the differences in the basis of these two taxes and the differences in the relation of the taxing State to them, a tax o

been made, the issue is substantially whether the long line of so-called 'drummer cases' beginning with Robbins v. Shelby County Taxing District, 120 U.S. 489, shall be adhered to in result or shall now be overruled in the light of what attorneys for the city say are recent trends requiring that outcome."[610] The tax was held void, Berwind-White being not only "distinguished"

not licensed in the State, was set aside directly on the authority of the Robbins case.[612] It wou

F CARRIAGE

to prevent a threatened dissipation of its population, levied a special tax on railroad and stage companies for every passenger they carried out of the State, and in Crandall v. Nevada[617] this act was held void on the general ground that the National Government had at all times the right to require the services of its citizens at the seat of government and they the correlative right to visit the seat of government, rights which, if the Nevada tax was valid, were at the mercy of any State, the power to tax being without limit. Reference was also made to the right of the government to transport troops at all times by t

terstate Commerce Privil

INAL

ation-one chartered by another State-to carry on interstate commerce within its borders,[626] an implication which soon became explicit. In Leloup v. Port of Mobile,[627] decided in 1888, the Court had before it a license tax on a telegraph company which was engaged in both domestic and interstate business. The general nature of the exaction did not suffice to save it. Said the Court: "The question is squarely presented to us, * * *, whether a State, as a condition of doing business within its jurisdiction, may exact a license tax from a telegraph company, a large part of whose business

auditor of the State that the company he represented was possessed of an actual capital of at least $150,000. The act was held to be a regulation of interstate commerce so far as applied to a corporation of another State in that business. "To carry on interstate commerce," said the Court, "is not a franchise or a privilege granted by the State; it is a right which

NSE

empt to license interstate commerce.[632] In the same category of unconstitutional taxation of the interstate commerce privilege, the Court has also included the following: a State "franchise" tax on a foreign corporation, whose sole business in the State consisted in landing, storing and selling in the original package goods imported by it from abroad, the tax being imposed annually on the doing of such business and measured by the value of the goods on hand;[633] a State privilege or occupation tax on every corporation engaged in the business of operating and maintaining telephone lines and furnishing telephone service in the State, of so much for each telephonic instrument controlled and operated by it, as applied to a company furnishing both interstate and intrastate service, and employing the same telephones, wires, etc., in both as integrated parts of its system;[634] a

UNION TELEGRAPH v. K

otal capitalization of all foreign corporations doing or seeking to do a local business in the State. The Court pronounced the tax, as to the Western Union, a burden upon the company's interstate business and upon its property located and used outside the State, and hence void under both th

OF THE

ade, likewise, in International Paper Company v. Massachusetts,[642] it was clearly stated that "the immunity of interstate commerce from State taxation" is not confined to what is done by carriers in such commerce, but "is universal and covers every class of ... [interstate] commerce, including that conducted by merchants and trading

THE DOCT

ness without withdrawing also from the interstate business."[645] Likewise, in Cooney v. Mountain States Telephone and Telegraph Co., the Court asserted that to sustain a State occupation tax on one whose business is both interstate and intrastate, "it must appear * * *, and that the one [who is] taxed could discontinue the intrastate business without [also] withdrawing from the interstate business."[646] A year later, nevertheless, Justice Brandeis, speaking for the Court in Pacific Telephone and Telegraph Co. v. Tax Commission,[647] asserted flatly: "No decision of this Court lends support to the proposition that an occupation tax upon local business, otherwise valid, must be held void merely because the local and interstate branches are for some reason inseparable."[648] An occupation ta

ngaged in, and of the Procee

RAL

or other, the task before the Court in drawing the line between the immunity claimed by interstate business on the one hand and the prerogatives claimed by local power on the other has at times involved it in self-contradiction, as successive developments have brought into prominence novel aspects of its complex problem or have altered the perspective in which the interests competing for its protection have appeared. In this field words of the late Justice Rutledge, spoken in 1946, are especially applicable: "For cleanly as

OF THE APPOR

and used by it in the State, taking as the basis of the assessment such proportion of the value of its capital stock as the length of its lines within the State bore to their entire length throughout the country.[656] The tax was characterized by the Court as an attempt by Massachusetts "to ascertain the just amount which any corporation engaged in business within its limits shall pay as a contribution to the support of its government upon the amount and value of the capital so employed by it therein."[657] And drawing on certain decisions in which it had sought to limit the principle of tax exemption as applied in the case of railroads chartered by the United States, it expressed concern that "the necessary powers of the States" should not be destroyed or "their efficient exercise" be prevented.[658] Three years l

UNIT

railway mileage which the company covered in Ohio to the total mileage which it covered in all States. To the objection that "the intangible values" reached by the tax were derived from interstate commerce, the Court replied with the "cardinal rule * * * that whatever property is worth for purposes of income and sale it is also worth for purposes of t

g the concept appears to be that it is always possible for a State to devise a formula whereby it may assign to the property employed in interstate commerce within its limits, or to the proceeds from such commerce, a value which it may tax or by which it may "meas

NED PROP

ing ore from mines in the taxing State to terminal docks outside the State, where the line and the docks were treated by the railway as a unit, the charge for the dock service being absorbed in the charge per ton transported; and where the evidence did not show that the mileage value of the part of the line outside of the taxing State, with the docks included, was greater than the mileage value of part within it.[668] Nor does the commerce clause preclude the assessment of an interstate railway within a State by taking such part of the value of the railroad's entire system, less the value of its localized property, such as terminal buildings, shops and nonoperating real estate, as is represented by the ratio which the railroad's mileage within the State bears to its total mileage.[669] To the ob

D GROSS RE

rivilege of exercising the franchises of a corporation within a State is generally one of value, and often of great value, and the subject of earnest contention. It is natural, therefore, that the corporation should be made to bear some proportion of the burdens of government. As the granting of the privilege rests entirely in the discretion of the State, whether the corporation be of domestic or foreign origin, it may be conferred upon such conditions, pecuniary or otherwise, as the State in its judgment may deem most conducive to its interests or

HISE

axes are in addition to other taxes then their fate will be determined by the same rules as would apply had the label been omitted.[678] More precisely, the rule governing this species of tax is o

rofits, plus its long-term obligations, as the gross receipts of its local business bear to its total gross receipts from its entire business;[681] also by such proportion of the company's total capital stock as the value of its property in the taxing State and of the business done there bears to the total value of its property and of its business.[682] On the other hand, a "franchise" tax on the unapportioned gross receipts of railroad companies en

IPTS TAXES

taxation of interstate commerce.[688] Gross receipts taxes which, on the other hand, have been invalidated under the commerce clause he placed in the following groups: (a) those which were held not to be fairly apportioned;[689] (b) those which were not apportioned at all and were bound to subject interstate commerce to the risk of multiple taxation;[690] (c) those in whi

E TAXATI

interstate commerce. "It was not," he there remarks, "the purpose of the commerce clause to relieve those engaged in interstate commerce from their just share of State tax burden even though it increases the cost of doing the business. 'Even interstate business must pay its way,' * * * and the bare fact that one is carrying on interstate commerce does not relieve him from many forms of State taxation which add to the cost of his business."[697] Then citing cases, he continues: "All of these taxes in one way or another add to the expense of carrying on interstate commerce, and in that sense burden it; but they are not for that reason prohibited. On the other hand, local taxes, measured by gross receipts from interstate commerce, have often been pronounced unconstitutional. The vice characteristic of those which have been held invalid is that they have placed on the commerce burdens of such a nature as to be capable, in point of substance, of being imposed * * * [or added to] with equal right by every State which the commerce touches, merely because interstate comme

and uncertainties of the apportionment rule also played a great part. Thus in his concurring opinion in the Gwin case, Justice Butler, speaking for himself and Justice McReynolds after showing the instability of decisions in this area of Constitutional Law, contend that "the problems of conjectured 'mul

NT C

interstate] commerce."[708] This time Justice Rutledge was among the dissenters so far as interstate commerce was concerned.[709] In Central Greyhound Lines, Inc. v. Mealey,[710] decided in 1948, five members of the Court ruled that a New York tax on the gross income of public utilities doing business in the State could not be constitutionally imposed on a carrier's unapportioned receipts from continuous transportation between termini in the State over a route a material part of which passes through other States. Justice Frankfurter, speaking for the Court, held, however, that the tax was sustainable as to receipts apportioned as to the mileage within the State.[711] Justice Rutledge concurred without opinion. Justice Murphy, for himself and Justices Black and Douglas, thought the tax was on an essentially local activity and that the transportation through other States was "a mere geographic incident," conceding at the same time, that this view invited the other States involved to levy similar taxes and exposed t

ne Co. v. Stone,[713] which was decided in 1949, we find Justice Rutledge, speaking for himself and Justices Black, Douglas, and Murphy, endorsing the view that Mississippi was within her rights in imposing on a Delaware corporation, as a condition of doing a local business, a "privilege" tax equal to two per cent of its intrastate business even though the exaction amounted to "a 'direct' tax on the 'privilege' of engaging in interstate commerce," an assertion which was countered by one just as positive, and also endorsed by four Justices, that no State may "levy privilege, excise or

ON NET

ipts, the Court said the latter "affects each transaction in proportion to its magnitude and irrespective of whether it is profitable or otherwise. Conceivably it may be sufficient to make the difference between profit and loss, or to so diminish the profit as to impede or discourage the conduct of the commerce. A tax upon the net profits has not the same deterrent effect, since it does n

of the State;[717] also that a tax which is levied upon the proportion of the net profits of a foreign corporation earned by operations conducted within the taxing State is valid, if the method of allocation employed be not arbitrary or un

from interstate and foreign commerce;[721] also a tax on corporate net earnings derived from business done wholly within the State may be applied to the income of a foreign pipeline corporation which is commercially domiciled there and which pipes natural gas into that State for delivery to, and sale by, a local distributing corporation to local consumers.[722]

XES AFFECTING IN

ss

for the use of such facilities as it might itself furnish for the carrying on of commerce. This ruling rested on two earlier ones. In 1855, the Court had held that vessels registered in New York, owned by a New York corporation, and plying between New York City and San Francisco had the former city for their home port, and were not taxable by California where they remained no longer than necessary to discharge passengers and freight;[726] and in 1877 it had sustained Keokuk, Iowa in charging tolls for the use by vessels plying the Mississippi of wharves owned by the municipality, said tolls being reasonable and not discriminatory as between interstate and intrastate commerce.[727] Today it is still the general rule as to vessels plying between ports of different S

pla

for himself and three others wished to stress the prerogatives of the State of domicile.[732] Justice Black, concurring in this view, added the caveat that the taxing rights of other States should not be foreclosed and made reference to his "leave it to Congress" notion.[733] Justice Jackson, after speaking lightly of the apportionment theory,[734] joined the affirming brethren on the ground that the record seemed "to establish Minnesota as a 'home port' within the meaning of the old and

r Ve

ial fee may be exacted for the privilege of transporting motor vehicles on their own wheels in caravans,[742] unless excessive;[743] that taxes may also be imposed on carriers based on capacity[744] or mileage,[745] or as a flat fee;[746] but that a privilege tax on motor busses operated exclusively in interstate commerce, cannot be sustained unless it appears affirmatively in some way, that it is levied only as compensation for use of the highways in the State or to defray the expense of regulating motor traffic.[747] Later decisions follow in the same general track,[748] the most recent one being Capitol Greyhound Lines v. Brice,[749] in which the Court, speaking by Justice Black passed upon a Maryland excise tax on the fair market value of motor vehicles used in interstate commerce as a condition to the issuance of certificates of title as prerequisites to the registratio

ties; Regula

in interstate commerce, and the imposition of the reasonable expense thereof upon such corporation, is not a burden upon, or regulation of, interstate commerce in violation of the commerce clause of the Constitution.[753] A law exhibiting the intent to impose a compensatory fee for such a legitimate purpose is prima facie reasonable.[754] If the exaction be so unreasonable and disproportionate to the service as to impugn the good faith of the law[755] it cannot stand either under the commerce clause or the Fourteenth Amendment.[756] The State is not bound to adjust the charge after the fact, but may, in anticipation, fix what the legislature d

ce of C

e," thereby setting aside the Court's determination to the contrary earlier the same year.[762] This lesson, stated in the Court's own language thirty years later, was, "It is Co

ACT: REGULATI

ly to give support to the existing and future State systems for regulating and taxing the business of insurance. This was done in two ways. One was by removing obstructions which might be thought to flow from its own power, whether dormant or exercised, except as otherwise expressly provided in the Act itself or in future legislation. The other was by declaring expressly and affirmatively that continued State regulation and taxation of this business is in the public interest and that the business and all who engage in it 'shall be subject to' the laws of the several States in these respects. * * * The power of Congress over commerce exercised entirely without reference to coordinated action of the States is not restricted, except as the Constitution expressly pr

ower and For

OF POLI

to supply one of the great titles of Constitutional Law. Counsel for Maryland had argued that if the State was not permitted to tax imports in the original package before they left the hands of the importer, it would also be unable to prevent their introduction into its midst although they might comprise articles dangerous to

ON ENTRY O

commissioners to collect certain fees from captains arriving in ports of that State, and when Massachusetts enacted a statute requiring captains of ships to give bonds as to immigrants landed, both measures were pronounced void, either as conflicting with treaties and laws of the United States or as invading the "exclusive" power of Congress to regulate foreign commerce.[775] Following the Civil War, indeed, New York v. Miln was flatly overruled, and a New York statute similar to the one sustained in 1837 was pronounced void as intruding upon Congress's powers.[776] Nothing was gained, said the Court, by invoking "[the police power] * * *, it is clear, from the nature of our complex form of government, that, whenever the statute of a State invades the domain of legislation which belongs exclusively to the Congress of the United States, it is void, no matter under

UARANTI

enforcement, applied beyond the mere exclusion of diseased persons. Thus in the leading case the State of Louisiana was sustained in authorizing its Board of Health in its discretion to prohibit the introduction into any infected portion of the State of "persons acclim

TECTION AND FO

h a New York statute establishing a closed season for certain game, during which season it was a penal offense to take or possess any of the protected animals, fish or birds; and providing farther that the ban should equally apply "to such fish, game or flesh coming from without the State as to that taken

wer and Inter

L PRIN

ulation. Ever since Willson v. Black-Bird Creek Marsh Co., 2 Pet. 245, and Cooley v. Board of Wardens, 12 How. 299, it has been recognized that, in the absence of conflicting legislation by Congress, there is a residuum of power in the state to make laws governing matters of local concern which nevertheless in some measure affect interstate commerce or even, to some extent, regulate it.[783] Thus the states may regulat

commerce which, because of the need of national uniformity, demand that their regulation, if any, be prescribed by a single authority.[786] Whether or not this long-recognized distribution of power between the

the infinite variety of cases, in which regulation of local matters may also operate as a regulation of commerce, in which reconciliation of the conflicting claim

affords some protection from state legislation inimical to the national commerce, and that in such cases, where Congress has not acted, this Co

mit the states to regulate the commerce in a manner which would otherwise not be permissible,[791] or exclude s

ws will not be invalidated without the support of relevant factual material which will 'afford a sure basis' for an informed judgment.[794] Meanwhile, Congress has accommodated its legislation, as have the states, to these rules as an established feature of our constitutional system. There has thus been left to the state

of Agencies of In

RATE R

Wabash, St. Louis and Pacific Railway Co. v. Illinois[796] this decision was reversed as to persons and property taken up within the State and transported out of it and as to persons and property brought into the State from outside. As to these, the Court held that the regulation of rates and charges must be uniform and that, therefore, the States had no power to deal with the subject even when Congress had not acted. Th

SERVICE R

to stop at all county seats was held to have been validly applied to interstate connection trains;[799] while in the other case a statute requiring all passenger trains to stop at county seats was held invalid, there being "other and ample accommodation."[800] Comparing these and other like decisions, the Court has stated "the applicable general doctrine" to be as follows: (1) It is competent for a State to require adequate local facilities, even to the stoppage of interstate trains or the rearrangement of their schedules. (2) Such facilities existing-that is, the local conditions being adequately met-the obligation of the railroad is performe

;[804] while a regulation requiring the delivery of shipments on private sideways[805] and one requiring cars for local shipments to be furnished on demand, were held to be invalid.[806] In

D OTHER R

restricting the speed of trains within city limits;[810] the order of a public utility commission requiring the elimination of grade crossings;[811] a statute requiring electric headlights of a specified minimum capacity;[812] a statute requiring three brakemen on freight trains of over twenty-five cars.[813] In the last case the Court admitted that "under the evidence," there was "some room for controversy" as to whether the statute was necessary, but thought it "not so unreasonable as to justify the Court in adjudging it" to be "merely an arbitrary exercise of power" and "not germane" to objects which the State was entitled to accomplish.[814] And in 1943 the Court sustained, though again

STATE RE

oods in the district and of improving its drainage, because it was 'not pretended that local welfare needs the removal of the defendants' bridges at the expense of the dominant requirements of commerce with other States, but merely that it would be helped by raising them.' And in Seaboard Air Line R. Co. v. Blackwell,[820] it was held that the interference with interstate rail transportation resulting from a State statute requiring as a safety measure that trains come almost to a stop at grade crossings, outweigh the local interest in safety, when it appealed that compliance increased the scheduled running time more than six hours in a distance of one hundred and twenty-three miles."[821] And "more recently in Kelly v

TION OF LENG

ellant is required to haul over 30% more trains in Arizona than would otherwise have been necessary. The record shows a definite relationship between operating costs and the length of trains, the increase in length resulting in a reduction of operating costs per car. The additional cost of operation of trains complying with the Train Limit Law in Arizona amounts for the two railroads traversing that State to about $1,000,00

ins being broken up and reformed at the California border and in New Mexico, some distance from the Arizona line. Frequently it is not feasible to operate a newly assembled train from the New Mexico yard nearest to Arizona,

aries of the State exacting it because of the necessity of breaking up and reassembling long trains at the nearest terminal points before entering and after leaving the regulating State. The serious impediment

ccidents resulting from the larger number of trains when train lengths are reduced. In considering the effect of the statute as a safety measure, therefore, the factor of controlling significance for present purposes is not whether there is basis for the conclusion of the Arizona Supreme Court that the increase in length of trains beyond the statutory maximum has an adverse effect upon safety of operation. The d

OUTHERN PACIFIC

functioning of commerce, a State may not interpose its regulation"; 2) in resolving this question the Court will canvass what it considers to be relev

gress, within the limits of the Fifth Amendment, has authority to burden [interstate] commerce if that seems to it a desirable means of accomplishing a permitted end. * * * As no State law can reach beyond its own border nor bar transportation of passengers across its boundaries, diverse seating requirements for the races in interstate journeys result. As there is no federal act dealing with the separation of races in interstate transportation, we must decide the

OF MOTOR VEHICLES

erest and local interests, especially that of public safety. A new element enters the problem, however, which lends some added w

ic Utilities Commission of Ohio,[828] in which the Court took cognizance of the full hearing accorded the appellant, and of his failure to choose another route, although he was at liberty to do so. And in Maurer v. Hamilton a Pennsylvania[829] statute prohibiting the operation over its highways of any motor vehicle carrying any other vehicle over the head of the operator was upheld in the absence of conflicting Congressional legislation. Similarly, in Welch v. New Hampshire[830] a statute of that State establishing maximum hours for drivers of motor vehicles was held not to be superseded by the Federal Motor Carrier Act prior to the effective date of regulations by the Interstate Commerce Commission dealing with the subject. Nor was pendency before the Interstate Commerce Commission of an application under the Motor Carrier Act for a license to operate a motor carrier in interstate commerce found to supersede as to the applicant the authority of a State to enforce "reasonable regulations" of traffic upon its highways.

ACTS AFFECTING

State the goods of particular factories under standing contracts with their owners, the said carrier enjoying neither a special franchise nor using the eminent domain power.[835] On the other hand, a State statute which prohibits common carriers for hire from using the highways of the State between fixed termini or over regular routes without having first obtained from a director of public works a certificate

RTATION

it held that a Pennsylvania statute requiring others than railroad or steamship companies, who engage in the intrastate sale of steamship tickets or of orders for transportation to and from foreign countries, to procure a license by giving proof of good moral character and filing a bond as security against fraud and misrepresentation to purchasers, was an infringement of the Commerce Clause. Since the decision in that case this Court has been repeatedly called upon to exami

N; GENERA

over those small navigable creeks into which the tide flows," the State of Delaware was entitled to incorporate a company vested with the right to erect a dam across such a creek. From these two cases the Court in Cooley v. the Board of Wardens,[841] decided in 1851, extracted the rule that in the absence of conflicting legislation by Congress States were entitled to enact legislation adapted to the local needs of interstate and foreign commerce, that a pilotage law was

ns to survey the hatches of all vessels arriving there and to enact a fee for so doing.[843] "The unreason and the oppressive character of the act" was held to take it out of the class of local legislation protected by the rule of the Cooley case.[844] Likewise, while control by a State of navigable waters wholly within its borders has been often asserted to be

legislation in the field, but it was asserted that the Washington statute filled a gap. "The principle is thoroughly established," said Chief Justice Hughes for the Court, "that the exercise by the State of its police power, which would be valid if not superseded by federal action, is superseded only where the repugnance or conflict is so 'direct and positive' that the two acts cannot 'be reconciled or co

AMS, FERRI

s in Huse v. Glover,[856] it should not be forgotten that: "the State is interested in the domestic as well as in the interstate and foreign commerce conducted on the Illinois River, and to increase its facilities, and thus augment its growth, it has full power. It is only when, in the judgment of Congress, its action is deemed to encroach upon the navigation of the river as a means of interstate and foreign Commerce, that that body may interfere and control or supersede it. * * * How the highways of a State

rr

the rates to be charged by an interstate bridge company for passage across its structure was denied by a closely divided Court.[863] The ruling does not, however, control the regulation of rates to be charged by an interstate ferry company. These the chartering State may, in the absence of action by Congress, regulate except in the case of fer

HS AND T

legislation by Congress, to be valid;[869] as was also a Michigan statute which prohibited the stipulation by a company against liability for nonperformance of such duty.[870] However, a South Carolina statute which sought to make mental anguish caused by the negligent nondelivery of a telegram a cause of action, was held to be, as applied to messages transmitted from one State to another or to the District of Columbia, an unconstitutional attempt to regulate interstate commerce.[871] A State has no authority to interfere with the operation of the lines of telegraph companies constructed along postal routes within its borders under the authority of the Post Road Act of 1866,[872] nor to exclude altogether a company proposing to take advantage of the act;[873] but that act does not deprive the State or a municipality o

D ELEC

commerce to obtain a certificate of convenience before selling directly to customers in the State.[881] And where a pipe line is used to distribute both gas that is brought in from without the State and gas that is produced and used within the State, and the two are commingled, but their proportionate quantities are known, an order by the State commission directing the gas company to continue supplying gas from the line to a certain community does not burden interstate commerce.[882] The transportation of natural gas from sources outside the State to local consumers in its municipalities ceases to be interstate commerce at the point where it passes from a pressure producing station into local distributing stations, and from that point is subject to State regulation.[883] A State public utilities commission is entitled to require a natural gas distributing company seeking an increase of rates to

N CORP

ns.[889] So it was decided in 1944. The holding does not necessarily disturb one made thirty years earlier in which the Court ruled that a statute which closed the courts of the enacting State to any action on any contract in the State by a foreign corporation unless it had previously appointed a resident agent to accept process, could not be constitutionally applied to the right of a foreign corporation to sue on an interstate transaction.[890] A suit brought in a State court by a foreign corporation having its principal place of b

ELLA

and

icense is not, as to one whose business chiefly consists in receiving deposits for periodic shipment to

ok

property to obtain a license from a State officer, is not invalid as applied

issi

otection of consignees may be validly applied to commission merch

nt and G

r State laws, although they may have been or are

tory

ns and property within the State, does not as applied to nonmaritime torts offend the commerce clause, there being no act of Congress in conflict.[897] N

and the Subject-M

THE POL

dly operate upon interstate and foreign commerce. They could not be effective otherwise. They cannot, of course, be made the cover for discriminations and arbitrary enactments having no reasonable relation to health * * *; but the power of the State to take steps to prevent the introduction or spread of disease, although interstate and foreign commerce are involved (subject to the paramount authority of Congress if it decides to assume contr

NTINE

through the communication of disease from these to other cattle was sustained;[902] as were also the regulations of a sanitary commission which excluded all cattle, horses, and mules, from the State at a certain period when anthrax was prevalent.[903] Reviewing previous cases in the one last cited, the Cour

Agriculture, pursuant to a State law, regulating the standards of containers in which agricultural products (berries) may be marketed within the State;[908] a State statute restricting the processing of fish found within the waters of the State with the purpose of conserving it for food, even though it also operates upon fish brought into the State from without;[909] the price fixing and licensing provisions of a State Milk and Cream Act, not applicable to transactions in interstate commerce, by declaration of the act;[910] a Maine statute requiring the registration with the State Health Depar

NSPECTI

as to composition had been met;[915] a Minnesota statute requiring as a precondition of its being offered for sale in the State, the inspection of illuminating oil and gasoline;[916] a Kansas statute forbidding any moving picture film or reel to be exhibited in the State unless it had been examined by the State Superintendent of Instruction and certified by him as moral and instructive and not tending to debase or corrupt the morals.[917] A Minnesota statute, on the other hand, which forbade the sale in any city of the State of any beef, mutton, lamb, or pork which, had not been inspected on the hoof by local inspectors within twenty-four hours of slaughter, was held void.[918] Its "necessary operation,

LAWS; THE ORIGIN

t denominated "legitimate articles of commerce." While holding that a State was entitled to prohibit the manufacture and sale within its limits of intoxicants,[926] even for an outside market-manufacture being no part of commerce[927]-it contemporaneously laid down the rule, in Bowman v. Chicago and Northwestern Railroad Co.,[928] that so long as Congress remained silent in the matter, a State lacked the power, even as part and parcel of a program of Statewide prohibition of the traffic in intoxicants, to prevent the shipment into it of intoxicants from a sister State; and this holding was soon followed by another to the effect that, so long as Congress remained silent, a State ha

RINE AND

on was never intended, he continued, to hold that "a State is powerless to prevent the sale of articles manufactured in or brought from another State, and subjects of traffic and commerce, if their sale may cheat the people into purchasing something they do not intend to buy * * *."[936] Obviously, the argument was conclusive only on the assumption that a State has a better right to prevent frauds than it has to prevent drunkenness and like evils; and doubtless that is the way the Court felt about the matter at that date. On the one hand, the liquor traffic was a very ancient, if not an altogether, venerable institution, while oleomargarine was then a relatively novel article of commerce whose wholesomeness was suspect. On the other hand, laws designed to secure fair dealing and condemnatory of fraud followed closely the track of the common law, while

ORIGINAL PAC

ourt has, without appealing to the Twenty-first Amendment, even gone so far as to uphold a statute requiring a permit for transportation of liquor through the enacting State.[941] In Whitfield v. Ohio,[942] moreover, the Court upheld a State law prohibiting the sale in open market of convict-made goods including sales of goods imported from other States and still in the original package. While the decision is based on the Hawes

NTERSTATE MOVE

in treaties of the United States. There followed two rulings of Attorneys General, the earlier by Attorney General Wirt, denouncing such legislation as unconstitutional;[948] the latter by Attorney General Berrien, sustaining it;[949] and in City of New York v. Miln[950] the Court, speaking by Justice Barbour of Virginia, asserted, six years after Nat Turner's rebellion, the power of the States to exclude undesirables in sweeping terms, which in the Passenger Cases,[951] decided in 1840, a narrowly divided Court considerably qualified.

h, morals, and especially finance, the proportions of which are staggering. It is not for us to say that this is not true. We have repeatedly and recently affirmed, and we now reaffirm, that we do not conceive it our function to pass upon 'the wisdom, need, or appropriateness' of the legislative efforts of the States to solve such difficulties. * * * But this does not mean that there are no boundaries to the permissible area of State legislative activity. There are. And none is more certain than the prohibition against attempts on the part of any single State to isolate itself from difficulties common to all of them by restraining the transportation of persons and property across i

ATION AND EMB

dly, that "the business welfare of the State," is subordinated by the commerce clause to that of the nation as a whole. If the States had the power asserted in the Oklahoma statute, said Justice McKenna, "a singular situation might result. Pennsylvania might keep its coal, the Northwest its timber, the mining States their minerals. And why may not the products of the field be brought within the principle? * * * And yet we have said that 'in matters of foreign and interstate commerce there are no State lines.' In such commerce, instead of the States, a new power appears and a new welfare, a welfare which transcends that of any State. But rather let us say it is constituted of the welfare of all the States and that of each State is made greater b

commerce was held by the Court to be incidental merely to the effective enforcement of a measure intended to safeguard the health of the people of Florida. Moreover, said the Court, "we may take judicial notice of the fact that the raising of citrus fruits is one of the great industries of the State of Florida. It was competent for the legislature to find that it was essential for the success of that industry that its reputation be preserved in other States wherein such fruits find their most extensive market."[963] In Lemke v. Farmers Grain Co.,[964] on the

of the State to license interstate commerce. What is even more important, however, the later case represents a new rule of law, and one which at the time the Florida act was before the Court had not yet been heard of. This is embodied in the head note of the case in the following words: "The business of buying grain in

AND EMBARGO MEASU

an unconstitutional interference with interstate commerce. However, a Pennsylvania statute requiring dealers to obtain licenses was sustained as to one who procured milk from neighboring farms and shipped it all into a neighboring State for sale.[969] The purpose of the act, explained Justice Roberts, was to control "a domestic situation in the interest of the welfare of the producers and consumers," and its application to the kind of case before the Court was essential to

AND EMBARGO MEASURE

ply. Its object was to favor the canning of shrimp for the interstate market. "* * * by permitting its shrimp to be taken and all the products thereof to be shipped and sold in interstate commerce, the State necessarily releases its hold and, as to the shrimp so taken, definitely terminates its control. * * * And those taking the shrimp under the authority of the act necessarily thereby become entitled to the rights of private ownership and the protection of the commerce clause."[973] On the same reasoning a South Carolina statute which required that owners of shrimp boats, fishing in

deral and Sta

ENERA

theory, advanced in Gibbons v. Ogden, that when Congress acts upon a particular phase of interstate commerce, it designs to appropriate the entire field with the result that no room is left for supplementary State action; second, those in which, in the absence of conflict between specific provisions of the State and Congressional measures involved, the opposite result is reached; third, those in which the State legislation involved is found to conflict wi

EPBUR

he same are transported by said carrier have been filed and published in accordance with the provisions of this act."[979] In enacting this provision, the Court found, Congress had intended to occupy the entire field. In a third case, it was held that the Hepburn Act had put it outside the power of a State to regulate the delivery of cars for interstate shipments;[980] and on the same ground, a State statute authorizing recovery of a penalty for delay in giving notice of the arrival of freight was disallowed;[981] as was also the similar rule of a State railroad commission with respect to failure to deliver freight at depots and warehouses within a stated time limit.[982] And in Adams Express Co. v. Croninger[983] it was sweepingly ruled that the so-called Carmack Amendment to the Hepburn Act, which puts the respo

NTINE

ith the Pure Food and Drugs Act of 1906.[991] However, when Wisconsin about the same time passed an act requiring that when certain commodities were offered for sale in that State they should bear the label required by State law and no other, she was informed that she could not validly apply it to articles which had been labeled in accordance with the federal statute nor did it make any difference that the goods in question had been removed from the container in which they had been shipped into the State, inasmuch as they could still be proceeded against under the act of Congress.[992] The original package doctrine, it was added, "was not intended to limit the right of Congress, * * *, to keep the channels of interstate commerce free from the carriage of injurious or fraudulently branded articles and to c

SUSTAINING ST

t sustained the marketing program for the 1940 California raisin crop, adopted pursuant to the California Agricultural Prorate Act. Although it was conceded that the program and act operated to eliminate competition among producers concerning terms of sale and price as to product destined for the interstate market, they were held not to conflict with the commerce clause or with the Sherman Act or the Agricultural Marketing Agreement Act.[1006] To the contrary, said Chief Justice Stone, speaking for the unanimous court, the program "is one which it has been the policy of Congress to aid and encourage through federal agencies" under federal act.[1007] The case was not one, he further observed, which was to be resolved by "mechanical test," but with the object in view of accommodating "the competing demands of the State and national interests involved."[1008] In 1944,[1009] the Court upheld the right of Minnesota to exclude from its courts a firm licensed by the National Government to carry on the business of customs broker because of its failure to comply with a State statute requiring foreign corporations to obtain a license to do business in the State. Speaking for the Court, Justice Frankfurter, again disparaged "th

NULLIFYING

019] one in 1947 holding that the United States Warehouse Act, as amended,[1020] must be construed as superseding State authority to regulate licenses thereunder, and hence overruled the stricter requirements of Illinois law dealing with such subject as rate discrimination, the dual position of grain warehousemen storing their own grain, the mixing of inferior grain owned by the warehousemen with superior grain of other users of the facility, delay in loading grain, the sacrificing or rebating of storage charges, retraining desirable transit tonnage, utilizing preferred storage space, maintenance of unsafe and inadequate grain elevators, inadequate and ineffectual warehouse service, the obtaining of a license, the abandonment of warehousing service, and the rendition of warehousing service without filing and publishing rate schedules;[1021] one decided the same year in which it was held that the authority

RSUS STATE

Congress.'"[1029] In two cases decided in 1949, however, State legislation regulative of labor relations was sustained. In one a "cease and desist" order of the Wisconsin Employment Relations Board[1030] implementing the State Employment Peace Act, which made it an unfair labor practice for an employee to interfere with production except by leaving the premises in an orderly manner for the purpose of going on strike, was found not to conflict with either the Wagner or the Taft-Hartley Act,[1031] both of which, the Court asserted, designedly left open an area for State control. In the other,[1032] the Wisconsin b

With Indi

STATES

to the course of dealing of the Federal Government with them and the treaties in which it has been promised, there arises the duty of protection, and with it the power. This has always been recognized by the Executive and by Congress, and by this Court, whenever the question has arisen. * * * The power of the General Government over these remnants of a race once powerful, now weak and diminished in numbers, is

37] Most of the cases have arisen, in fact, in connection with efforts by Congress to ban the traffic in "fire water" with tribal Indians. In this connection it has been held that even though an Indian has become a citizen, yet so long as he remains a member of his tribe, under the charge of an Indian agent, and so long as the United States holds in trust the title to land which has been allotted him, Congress can forbid the sale of intoxicants to him.[1038] Also Congress can prohibit the introduction of intoxicating liquors into land occupied by a tribe of uncivilized In

h an uniform Rule of Naturalization, and uniform Laws on

tion and C

OF NATURALI

dicta are much too narrow to sustain the power which Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. In the words of the Court: "As a government, the United States is invested with all the attributes of sovereignty.

nited States, and subject t

aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not

both of whom are citizens of the United States and one of whom has had a residence in

ted States who has been physically present in the United States or one of its outlying possessions for a continuous period

izen of the United States who has been physically present in the United States or one of its outl

under the age of five years, until shown, prior to his attaining the

an ten years, at least five of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States by such citizen parent may be included in computing the physical presence requirements of this paragraph."[1047] By the same act, "persons born in the Canal Zone an

GIBLE FOR N

of the United States shall not be denied or abridged because of race or sex or because the person is married."[1050] But, any person "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches * * *" opposition to all organized government, or "who advocates or teaches or who is a member of or affiliated with any organization that advocates or teaches the overthrow by force or violence or other unconstitutional means of the Government of the United States" may not b

URE OF NAT

he United States when required by the law, or (C) to perform work of national importance under civilian direction when required by law."[1053] Any naturalized person who takes this oath with mental reservations or conceals beliefs and affiliations which under the statute disqualify one for naturalization, is subject, upon these facts being shown in a proceeding brought for the purpose, to have his certificate of naturalization cancelled.[1054] Furthermore, if a naturalized person shall within five years "following his naturalization become a member of or affiliated with any organization, membership in or affiliation with which at the time of naturalization would have p

NATURALI

ass citizenship. * * * [It] carries with it the privilege of full participation in the affairs of our society, including the right to speak freely, to criticize officials and administrators, and to promote changes in our laws including the very Charter of our Government."[1058] But, as shown above, a naturalized citizen is subject at any time to have his good faith in taking the oath of allegiance to the United States inquired into, and to lose his citizenship if lack of such faith is shown in proper proceedings.[1059] Also, "a person who has become a national by naturalization" may lose his nationality by "having a continuous

' POWER

or of the State, so as to deprive the federal courts of jurisdiction over a controversy between him and a citizen of a State.[1062] But power to naturalize aliens may be, and early was, devolved by Congress u

RIATION: LOSS

ates, since enactment of the act of 1868,[1066] if indeed not earlier, has expressly recognized the right of everyone to expatriate himself and choose another country. Retention of citizenship is not dependent entirely, however, upon the desires of the individual; for, although it has been "conceded that a change of citizenship cannot be ar

ion of

erritory to that extent is an incident of every independent nation. It is a part of its independence. If it could not exclude aliens, it would be to that extent subject to the control of another power. * * * The United States, in their relation to foreign countries and their subjects or citizens are one nation, invested with powers which belong to independent nations, the exercise of which can be invoked for the maintenance of its absolute indepe

the regulation of all aliens and precludes enforcement of a State registration act. Said the Court, speaking by Justice Black: "With a view to limiting prospective residents from foreign lands to those possessing the qualities deemed essential to good and useful citizenship in America, carefully defined qualifications are required to be met before aliens may enter our country. These qualifications include rigid requirements as to health, education, integrity, character, and adaptability to our institutions. Nor is the alien left free from the ap

tled to enter the United States under The War Brides Act of 1945,[1075] was held to be not reviewable by the courts; nor were regulations on which the order was based invalid as representing an undue delegation of legislative power. Said the Court: "Normally Congress supplies the conditions of the privilege of entry into the United States. But because the power of exclusion

77] Nor was it unconstitutional to deport under the Alien Registration Act of 1940[1078] a legally resident alien because of membership in the Communist Party, although such membership ended before the enactment of the Act. Such application of the Act did not make it ex post facto, being but an exercise of the power of the United State

ien residents or to govern private relations with them. Purporting to enforce the above distinction, the Court, in 1909, held void a statutory provision which, in prohibiting the importation of "any alien woman or girl for the purpose of prostitution," provided further that whoever should keep for the purpose of prostitution "any alien woman or girl within three years after she shall have entered the United States" should be deemed guilty of a felony and

kru

MAY BE RELEA

limited view. The first bankruptcy law, passed in 1800, departed from the English practice to the extent of including bankers, brokers, factors and underwriters as well as traders.[1085] Asserting that the narrow scope of the English statutes was a mere matter of policy, which by no means entered into the nature of such laws, Justice Story defined a law on the subject of bankruptcies in the sense of the Constitution as a law making provisions for cases of persons failing

TION OF RE

of composition which would become binding upon acceptance by a designated majority of his creditors and confirmation by a bankruptcy court. This measure was held constitutional,[1090] as were later acts which provided for the reorganization of corporations which are insolvent or unable to meet their debts as they mature,[1091] and for the composition and extension of debts in proceedings for the relief of individual farmer-debtors.[1092] Nor is the power of Congress limited to adjustment of the rights of creditors. The Supreme Court has also ruled that the rights of a purchaser at a judicial sale of the debtor'

L LIMITATIONS

oration shall be formed, supervised and dissolved, a corporation which has been dissolved by a decree of a State court may not file a petition for reorganization under the Bankruptcy Acts.[1098] But Congress may impair the obligation of a contract and may extend the provisions of the bankruptcy laws to contracts already entered into at the time of their passage.[1099] It may also empower courts of bankruptcy to entertain petitions by taxing agencies or instrumentalities for a composition of their ind

ER NOT

bankruptcy law was in existence only sixteen years altogether. Consequently the most important problems of interpretation which arose during that period concerned the effect of this clause on State law. The Supreme Court ruled at an early date that in the absence of Congressional action the States may enact insolvency laws since it is not the mere existence of the power but rather its exercise

STATUS OF STATE

that a State court was without power to proceed with pending foreclosure proceedings after a farmer-debtor had filed a petition in the federal bankruptcy court for a composition or extension of time to pay his debts.[1109] A State law governing fraudulent transfers was found to be compatible with the act of Congress,[1110] as was a statute which provided that a discharge in bankruptcy should be unavailing to terminate the suspension o

o coin Money, regulate the Value thereof, and of forei

of counterfeiting the Securities a

onetary Powe

WEIGHTS A

ncy not redeemable in gold. A plaintiff who sought payment for the gold coin and certificates thus surrendered in an amount measured by the higher market value of gold, was denied recovery on the ground that he had not proved that he would suffer any actual loss by being compelled to accept an equivalent amount of other currency.[1117] Inasmuch as "every contract for the payment of money, simply, is necessarily subject to the constitutional power of the government over the currency, whatever that power may be, and the obligation of the parties is, the

ENTS OF COU

use. It has ruled that a State may punish the utterance of forged coins.[1123] On the ground that the power of Congress to coin money imports "the correspondent and necessary power and obligation to protect and to preserve in its purity this constitutional currency for the benefit of the nation,"[1124] it has sustained federal statutes penalizing the importation or circulation of counterfeit coin,[1125] or the wil

POWER VERSUS T

se-one in which the power to regulate the value of money collided with the obligation incurred in the exercise of the power to borrow money. By a vote of eight-to-one the Supreme Court held that the obligation assumed by the exercise of the latter was paramount, and could not be repudiated to effectuate the monetary policies of Congress.[1130] In a concurring opinion Justice Stone declined to join with the majority in suggesting that "the exercise of the sovereign power to borrow m

have Power * * * To establish

ostal

TAB

nsidered as exhausted in the designation of roads on which the mails are to be transported," and concluded that neither under the commerce power nor the power to establish post roads could Congress construct a bridge over a navigable water.[1132] A decade earlier, however, the Court, without passing upon the validity of the original construction of the Cumberland Road, held that being "charged, * * *, with the

PROTECT

s principle was recognized by the Supreme Court in 1845 in holding that wagons carrying United States mail were not subject to a State toll tax imposed for use of the Cumberland Road pursuant to a compact with the United States.[1136] Half a century later it was av

VERY AND

e circulation in the Southern States, through the mail, of incendiary publications intended to instigate the slaves to insurrection."[1138] In the Senate John C. Calhoun resisted this recommendation, taking the position that it belonged to the States and not to Congress to determine w

HARMFUL USE OF TH

] Later cases appear to have qualified these sweeping declarations. In upholding requirements that publishers of newspapers and periodicals seeking second-class mailing privileges file complete information regarding ownership, indebtedness and circulation and that all paid advertisements in such publications be marked as such, the Court emphasized that these provisions were reasonably designed to safeguard the second-class privilege from exploitation by mere advertising publications. Chief Justice White warned that the Court by no means intended to imply that it endorsed the government's "broad contentions concerning the existence of arbitrary power through the classification of the mails, or by way of condition * * *"[1144] Again, in Milwaukee Soc

WER AS AN ADJUNC

at act, Congress denied the privilege of using the mails for any purpose to holding companies which failed to obey that law, irrespective of the character of the material to be carried. Viewing the matter realistically, the Supreme Court treated this provision as a penalty. While i

TIONS AFFECT

ny telegraph company the right to construct its lines upon post roads, was interpreted as a prohibition of State monopolies in a field which Congress was entitled to regulate in the exercise of its combined power over commerce and post roads.[1150] An Illinois statute which, as construed by the State courts, required an interstate mail train to make a detour of seven miles in order to stop at a designated station, also was held to be an unconstitutional interference with the power of Congress under this clause.[1151] But a Minnesota statute which required intrastate trains to stop at county seats was found to be unobjectionable.[1152] Local laws classifying postal workers with rail

Science and useful Arts, by securing for limited Times to Authors and I

hts and

OF THE

o authors of books the sole right of publishing them for designated periods.[1158] Congress was not, however, by this provision, vested with anything akin to the royal prerogative in the creation and bestowal of monopolistic privileges. Its power is limited as to subject matter, and as to the purpose and duration of the rights granted. Only the writings and discoveries of authors and inventors may be p

BLE DIS

hitherto unknown phenomenon of nature; "if there is to be invention from such a discovery, it must come from the application of the law of nature to a new and useful end."[1165] Conversely, the mental processes which are thus applied must display "more ingenuity * * * than the work of a mechanic skilled in the art";[1166] and while combination patents have been at times sustained,[1167

IN ISSUI

eral law, provided the question as to whether the patentees device is in truth an invention is left open to investigation under the general law.[1172] The function of the Commissioner of Patents in issuing letters patent is deeme

COPE OF THE

fact, further contended that the statute was only intended to secure him in his pre-existent rights at common law. These at least, he claimed, the Court should protect. A divided Court held in favor of Peters on the legal question. It denied, in the first place, that there was any principle of the common law which protected an author in the sole right to continue to publish a work once published. It denied, in the second place, that there is any principle of law, common or otherwise, which pervades the Union except such as are embodied in the C

in which they were clothed.[1176] But the copyright of the description of an art in a book was held not to lay a foundation for an exclusive claim to the art itself. The latter can be protected, if at all, only by letters patent.[1177] Since copyright is a species of property distinct from the ownership of the equi

GRESS OVER P

rights are not thereby impaired,[1181] but it does not follow that it may authorize an inventor to recall rights which he has granted to others or reinvest in him rights of property which he had previously conveyed for a valuable and fair consideration.[1182] Furthermore, the rights which the present statu

FECTING PATENT

hrenheit, was held not to interfere with any right secured by the patent laws, although the oil for which the patent was issued could not be made to comply with State specifications.[1184] In the absence of federal legislation, a State may prescribe reasonable regulations for the transfer of patent rights so as to protect its citizens from fr

S AND ADVE

ings of authors." It does not "depend upon novelty, invention, discovery, or any work of the brain."[1188] Not many years later the Court, again speaking through Justice Miller, ruled that a photograph may be constitutionally copyright,[1189] while still more recently a circus poster was held to be entitled to the same protection. In answer to the objection of the Circuit Court that a lithogr

* * To constitute Tribunals inferior to

fine and punish Piracies and Felonies committed on t

and Offenses Again

OF TH

War, Congress took cognizance of all matters arising under the law of nations and professed obedience to that law.[1192] Under the Articles of Confederation, it was given exclusive power to appoint courts for the trial of piracies and felonies committed on the high seas, but no provision was made for dealing with offenses against the law of nations.[1193] The draft of the Constitution submitted to the Convention of 1787 by its Committee of Detail empowered Congress "to declare the law and punishment of piracies and felonies committed on the high

ION OF

ilarly, in Ex parte Quirin,[1197] the Court found that by the reference in the Fifteenth Article of War to "offenders or offenses that * * * by the law of war may be triable by such military commissions * * *," Congress had "exercised its authority to define and punish offenses against the law of nations by sanctioning, within constitutional limitations, the jurisdiction of military commissions to try persons for offenses which, according to the rules and precepts of the law of nations, and more particularly the law of war, are cognizable by such tribunals."[1198] Where, con

ORIAL REACH

National Government by article III, § 2. The two clauses are the result of separate steps independently taken in the Convention, by which the jurisdiction in admiralty, previously divided between the Confederation and the States, was transferred to the National Government. It would be a surprising result, and one plainly not anticipated by the framers or justified by principles which ought to govern the interpretation of a constitution devoted to the redistribution of governmental powers, if part of them were lost in the process of transfer. To construe the one clause as limiting rather than supplementing the other would be to ignore their history, and w

nd 14. The Congress s

rque and Reprisal, and make Rules c

ppropriation of Money to that Use sha

and maint

ernment and Regulation of

War

E AND

t upon the affirmative grants of the written Constitution.[1204] Chief Justice Marshall appears to have taken a still different view, namely that the power to wage war is implied from the power to declare it. In McCulloch v. Maryland[1205] he listed the power "to declare and conduct a war"[1206] as one of the "enumerated powers" from which the authority to charter the Bank of the United States was deduced. During the era of the Civil War the two latter theories were both given countenance by

HEREN

ritain by the colonies acting as a unit, the powers of external sovereignty passed from the Crown not to the colonies severally, but to the colonies in their collective and corporate capacity as the United States of America. Even before the Declaration, the colonies were a unit in foreign affairs, acting through a common agency-namely the Continental Congress, composed of delegates from the thirteen colonies. That agency exercised the powers of war and peace, raised an army, created a navy,

US OF GRA

r for carrying into Execution the foregoing Powers, * * *' the only question remaining is whether the Renegotiation Act was a law 'necessary and proper for carrying into Execution' the war powers of Congress and especially its power to support armies."[1216] In a footnote it listed the Preamble, the necessary and proper clause, the provisions authoriz

ON OF WAR,

of the term. After one of the vessels in this squadron had been engaged by, and had defeated, a Tripolitan cruiser, the latter was permitted to return home. Jefferson defended this course in a message to Congress saying, "Unauthorized by the Constitution, without the sanction of Congress, to go beyond the line of defence, the vessel being disabled from committing further hostilities, was liberated with its crew."[1220] Hamilton promptly espoused a different interpretation of the power given to Congress to declare war. "It is the peculiar and exclusive province of Congress," he declared "when the nation is at peace to change that state into a state of war; whether from calculations of policy, or from provocations, or inj

ZE CASE

ground that while the President could unquestionably adopt such measures as the statutes permitted for the enforcement of the laws against insurgents, Congress alone could stamp an insurrection with the character of war and thereby authorize the legal consequences which ensue a state of war.[1224] Inasmuch as the Court finally conceded that the blockade had been retroactively sanctioned by Congress, that part of its opinion dealing with the power of the President, acting alone, was really obiter. But a similar opinion was voiced by Chief Justice Chase on behalf of a unanimous Court, after the war was over. In Freeborn v. The "Protector,"[1225] it became necessary to ascertain the ex

aise and Maint

OF SPECI

at the Executive should be deprived of the "sole power of raising and regulating fleets and armies" which Blackstone attributed to the King under the British Constitution,[1227] was emphasized by Story in his Commentaries. He wrote: "Our notions, indeed, of the dangers of standing armies, in time of peace, are derived in a great measure from the principles and examples of our English ancestors. In England, the King possessed the power of raising armies in the time of peace according to his own good pleasure. And this p

ON APPROPRIATIO

ments were likely to continue for more than two years. Solicitor-General Hoyt ruled that such a contract would be lawful; that the appropriations limited by the Constitution "are those only which are to raise and support armies in the strict sense of the word 'support,' and that the inhibition of that clause does not extend to appropriations for the various means which an a

ENT OF THE

the passage of this Act a Joint Resolution was offered in the House of Representatives, proposing an amendment to the Constitution whereby Congress would be authorized to "provide and maintain an Air Force and to make rules for the government and regulation thereof,

CRIP

ing forth the militia for the three purposes specified in the Constitution, which did not comprehend service abroad, and finally that the compulsory draft imposed involuntary servitude in violation of the Thirteenth Amendment. The Supreme Court rejected all of these contentions. It held that the powers of the States with respect to the militia were exercised in subordination to the paramount power of the National Government to raise and support armies, and that the power of Congress to mobilize an army was distinct from its authority to provide for calling the militia and was not qualified or in any wise limited thereby.[1236] Before the United States entered the first World War, the Court had anticipa

F ARME

arents for enlistment of a minor son did not permit such consent to be qualified, their attempt to impose a condition that the son carry war risk insurance for the benefit of his mother was not binding on the Government.[1240] Since the possession of government insurance payable to the person of his choice, is calculated to enhance the morale of the

PUNISHMENT

jury for capital or infamous and by implication they are also excepted from Amendment VI,[1244] which relates to the trial of criminal offenses. Also the Fifth Amendment's provision against double-jeopardy apparently does not apply to military courts.[1245] A statute which provided that offenses not specifically mentioned therein should be punished "according to the laws and customs of such cases at sea" was held sufficient to give a naval co

egisl

IONARY WAR

ective legislatures of the United States, forthwith to enact laws, appointing suitable persons to seize and take, for the use of the continental army of the said States, all woolen cloths, blankets, linens, shoes, stockings, hats, and other necessary articles of clothing, * * *"[1250] Responding to such appeals, or acting on their own initiative, the State legislatures enacted measure after measure which entrenched upon the normal life of the community very drastically. Laws were passed forbidding the distillation of whiskey and other spirits in order to conserve grain supplie

AR LEGI

reme Court held it unconstitutional. It concluded that even if the circulation of such notes was facilitated by giving them the quality of legal tender, that result did not suffice to make the expedient an appropriate and plainly adapted means for the execution of the power to declare and carry on war.[1256] Three of the seven Justices then const

AR I LE

ation, manufacture, storage, mining or distribution of necessaries; to requisition foods, feeds, and fuels; to take over and operate factories, packinghouses, pipelines, mines or other plants; to fix a minimum price for wheat; to limit, regulate or prohibit the use of food materials in the production of alcoholic beverages; and to fix the price of coal and

R II LEG

owers Act,[1265] passed early in 1942, the authority to allocate materials was extended to facilities. These two acts furnished the statutory foundation for the extensive system of consumer rationing administered by the Office of Price Administration, as well as for the comprehensive control of industrial materials and output which was exercised

OF INDUSTRI

ing the power of Congress to conscript men for the armed forces as a measure of its power to regulate industry, the Court sustained the legislation, saying: "The Renegotiation Act was developed as a major wartime policy of Congress comparable to that of the Selective Service Act. The authority of Congress to authorize each of them sprang from its war powers. * * * With the advent of * * * [global] warfare, mobilized property in the form of equipment and s

LEGISLATIVE PO

In a second, the price-fixing authority exercised by the Office of Price Administration during the second world war, was, on the issue of delegation of power, sustained by reference to peace time precedents.[1271] Where the war power has been the basis of decision, two different theories concerning its significance can be recognized. The first is that since the war power is an inherent power shared by the legislative and executive departments rather than an enumerated power granted to the former, Congress does not delegate l

hich, since it was imposed by the Secretary of the Treasury, was invalid because the taxing power was not susceptible of delegation to the Executive Department. To this argument the Court replied: "It is hardly necessary, under the view we have taken of the character of the regulations in question, * * *, to discuss the question of the constitutionality

egislative and Ex

it was within the constitutional power of Congress and the executive arm of the Government to prescribe this curfew order for the period under consideration and that its promulgation by the military commander involved no unlawful delegation of legislative power. * * * Where, as in the present case, the standard set up for the guidance of the military commander, and the action taken and the reasons for it, are in fact recorded in the military orders, so that Congress, the courts and the public are assured that the orders, in the judgment of the commander, conform to the standards approve

Lichter v. U

istrative authority granted may not be an unconstitutional delegation of its own legislative power is not capable of precise definition.[1278] * * * Thus, while the constitutional structure and controls of our Government are our guides equally in war and in peace, they must be read with the realistic purposes of the entire instrument fully in mind. In 1942, in the early stages of total global warfare, the exercise of a war power such as the power 'To raise and support Armies, * * *' and 'To provide and maintain a Navy; * * *,' called for the production by us of war goods in unprecedent

S IN TIME

ld in like manner prohibit the preparations and establishments of every hostile nation? The means of security can be only regulated by the means and the danger of attack. * * * It will be in vain to oppose constitutional barriers to the impulse of self-preservation.'"[1280] Authoritative judicial recognition of the power is found in Ashwander v. Tennessee Valley Authority,[1281] where, in sustaining the power of the Government to construct and operate Wilson Dam and the power plant connec

c Ene

cesses, the theory and production of atomic energy and the utilization of fissionable and radioactive materials for medical, industrial and other purposes. The act further provides that the Commission shall be the exclusive owner of all facilities (with minor exceptions) for the production of fissionable materials; that all fissionable material produced shall become its property; that it shall allocate such materials for research and develo

R LEGI

er 1919, when the suit was brought, the war emergency had in fact passed, and that the law was therefore obsolete. Inasmuch as the treaty of peace had not yet been concluded and other war activities had not been brought to a close, the Court said it was "unable to conclude" that the act had ceased to be valid. But in 1924 it held upon the facts that we judicially know that the rent control law for the District of Columbia, which had previously been upheld,[1287] had ceased to operate because the emergency which justified it had come to an end.[1288] A similar issue was present after World War II in Woods v. Miller,[1289] where the Supreme Court reversed a decision of a lower court to the effect that the authority of Congress to regulate rents by virtue of the war power ended with the Presidential proclamation terminating hostilities on December 31, 1946. This decision was coupled with a warning that: "We recognize the force of the argument that the effects of war under mode

Rights i

Y CO

tions. They are subject, in relation to the war powers of the National Government, to the laws of war as interpreted and applied by Congress and by the President as Commander in Chief. To the question: "What is the law which governs an army invading an enemy's country?" the Court gave the following answer in Dow v. Johnson:[1292] "It is not the civil law of the invaded country;

MILITARY

military tribunal lacked jurisdiction to try the case, the Court divided, five-to-four, as to the grounds of the decision. The point on which the Justices differed was which department of the Government had authority to say with finality what regions lie within the theatre of military operation. Claiming this as a function of the courts, the majority held that the theatre of war did not embrace an area in which the civil courts were open and functioning.[1295] The minority argued that this was a question to be determined by Congre

Y PR

nce it has no relation to the personal guilt of the owner, it is immaterial whether the property belongs to an alien, a neutral, or even to a citizen of the United States. The whole doctrine of confiscation is built upon the foundation that it is an instrument of coercion, which, by depriving an enemy of property within the reach of his power, whether within his territory or without it, impairs his ability to resist the confiscating government, while at the same time it furnishes to that government means for carrying on the war. Any property which the enemy can use, eit

ES O

63, which, in authorizing the condemnation of vessels, made provision for the protection of interests of loyal citizens, merely created a municipal forfeiture and did not override or displace the law of prize. It decided, therefore, that when a vessel was liable to condemnation under either law, the government was at liberty to proceed under the more stringent rules of International Law, with the result that the citizen would

ULATIONS;

and to a certain extent without compensation. * * * A limit in time, to tide over a passing trouble, well may justify a law that could not be upheld as a permanent change."[1304] During World War II an apartment house owner who complained that the rentals allowed by the Office of Price Administration did not afford a "fair return" on the property was told by the Court that, "a nation which can demand the lives of its men and women in the waging of * * * war is under no constitutional necessity of providing a system of price control * * * which will assure each landlord a 'fair return' on his property."[1305] Moreover, such rentals may be established without a prior hearing because "national security might not be able to afford the luxuries of litigation and the long delays which preliminary h

LIBERTY I

tterance will not be endured so long as men fight and that no Court could regard them as protected by any constitutional right."[1312] A State also has power to make it unlawful to advocate that citizens of the State should not assist in prosecuting a war against public enemies of the United States.[1313] The most drastic restraint of personal liberty imposed during World War II was the detention and relocation of the Japanese residents of the Western States, i

N EN

far as enemy aliens were concerned, because, as Madison wrote, "The Constitution having expressly delegated to Congress the power to declare war against any nation, and, of course, to treat it and all its members as enemies."[1318] The substance of this early law was reenacted during the first world war. Under it the Presid

ENT

y or destruction of private property by military operations, but added that it did not have in mind claims for property of loyal citizens which was taken for the use of the national forces. "In such cases," the Court said, "it has been the practice of the government to make compensation for the property taken. * * *, although the seizure and appropriation of private property under such circumstances by the military authorities may not be within the terms of the constitutional clauses."[1324] Meantime, however, in 1874, a committee of the House of Repre

de for calling forth the Militia to execute the Laws of

verning such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the

litia

OUT TH

surrection.[1327] The Federal Government may call out the militia in case of civil war; its authority to suppress rebellion is found in the power to suppress insurrection and to carry on war.[1328] The act of February 28, 1795,[1329] which delegated to the President the p

ON OF TH

he militia, which hitherto had been an almost purely State institution, was brought under the control of the National Government. The term "militia of the United States" was defined to comprehend "all able-bodied male citizens of the United States and all other able-bodied males who have * * * declared their intention to become citizens of the United States," between the ages of eighteen and forty-five. The act reorganized the National Guard, determined its size in proportion to the population of the several States, required that all enlistmen

ion of particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchase

t of Go

1336] The present form of government dates from 1876; all legislative powers with respect to District affairs are retained by Congress, while an executive board of three commissioners vested with ordinance powers is appointed by the President.[1337] As a municipal corporation, the Di

T OF RIGHTS CEDE

he agreement made between the original proprietors of the land on which the city of Washington was laid out, and the Commissioners appointed by the President to survey, define and locate the district for the seat of government, the United States became the owner in fee of the streets of the city although the trustees never carried out their agreement to c

N OF ALEXAN

to that State if a majority of the voters in the county voted in favor of the change. The proposal was approved, whereupon, without any further action by Congress, Virginia declared the county annexed and resumed full jurisdiction over it. Thirty years later,

NCE OF S

of a principle which would have been in full operation without such declaration."[1345] In 1801 Congress declared that the laws of Virginia and Maryland "as they now exist, shall be and continue in force" in the respective portions of the District ceded by those

THE DIST

authorized those courts to take jurisdiction of nonfederal controversies between residents of the District of Columbia and citizens of a State. By a five-to-four decision that statute was held constitutional, but the Justices who voted to sustain it were not in agreement as to the grounds of the decision.[1352] Three found it to be an appropriate exercise of the power of Congress to legislate for t

ther in civil or criminal cases,[1355] and of presentment by a grand jury.[1356] Legislation which is restrictive of the rights of liberty and pr

WER OVER DISTR

d out in Cohens v. Virginia,[1359] if a felon escapes from the State in which the crime was committed, the government of such State cannot pursue him into another State and there apprehend him, "but must demand him from the executive power of that other State." On the other hand, a felon escaping from the District of Columbia or any other place subject to t

IN THE

s elsewhere;-e.g., if a direct tax, it must be levied in proportion to the census.[1361] But in laying taxes for District purposes only, "Congress, like any State legislature unrestricted by constitutional provisions, may its discretion wholly exempt certain classes of

ISLATIVE POWER TO

65] and to regulate public markets.[1366] It may confirm assessments previously made by the District government without authority of law.[1367] But in Stoutenburgh v. Hennick,[1368] the Court held that Congress would n

OF THE

n order of the District Public Utilities Commission, a court for the District of Columbia may be empowered to modify valuations, rates and regulations established by the Commission and to make such orders as in its judgment th

s, established under article III, with the result that the compensation of the judges thereof may not be diminished during their continuance in office.[1370] Since the courts established for the District are courts

Over Place

LA

374] and locks and dams for the improvement of navigation.[1375] But it does not cover lands acquired for forests, parks, ranges, wild life sanctuaries or flood control.[1376] Nevertheless the Supreme Court has held that

territory.[1378] Private property located thereon is not subject to taxation by the State,[1379] nor can State statutes enacted subsequent to the transfer have any o

F FEDERAL

States to try a person charged with murder on a military reservation, over the objection that the State had ceded jurisdiction only over such portions of the area as were used for military purposes, and that the particular place on which the murder was committed was used solely for farming. The Court held that the character and purpose of the occupation having been officially established by the

le thereof to private persons. Minnesota asserted the right to tax the equitable interest of the purchaser in such land, and the Supreme Court upheld its right to do so. The majority assumed that "the Government's unrestricted transfer o

OF JURISDICT

bted if such consent be not utterly void."[1389] But when the issue was squarely presented in 1937, the Court ruled that where the United States purchases property within a State with the consent of the latter, it is valid for the State to convey, and for the United States to accept, "concurrent jurisdiction" over such land, the State reserving to itself the right to execute process "and such

proper for carrying into Execution the foregoing Powers, and all other Powers vested by this

ient or Ela

INCIDEN

e, "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 consist with the letter and spirit of the Constitution, are constitutional."[1393] Moreover, this provision gives Congress a share in the responsibilities

OF COEFFIC

gulate the internal commerce of a State to the extent necessary to protect and promote interstate commerce.[1396] Likewise the right of Congress to utilize all known and appropriate means for collecting the revenue, including the distraint of property for Federal taxes,[1397] and its power to acquire property needed for the operation of the government by the exercise of the power of eminent domain,[1398] have greatly extend

AND PUNISHM

[1400] Illustrative of the offenses which have been punished under this power are the alteration of registered bonds;[1401] the bringing of counterfeit bonds into the country;[1402] conspiracy to injure prisoners in custody of a United States marshal;[1403] impersonation of a federal officer with intent to defraud;[1404] conspiracy to injure a citizen in the free exercise or enjoyment of

RING O

ntial to the effective operation of such corporations.[1409] Where necessary to meet the competition of State banks, Congress may authorize national banks to perform fiduciary functions, even though, apart from the competitive situation, federal instrumentalities might not be permitted to engage in such business.[1410] The Court will not undertake to assess the relative importance of the public and private funct

CY REG

n money and regulate the value thereof * * *'";[1412] have been held to give Congress virtually complete control over money and currency. A prohibitive tax on the notes of State banks;[1413] the issuance of treasury notes impressed with the qualit

CHARTER C

] or a corporation to construct an interstate bridge,[1417] as instrumentalities for promoting commerce among the Stat

JUDICIAL

criminal prosecution against a federal officer for acts done under color of federal law,[1421] and may authorize the removal before trial of civil cases arising under the laws of the United States.[1422] It may prescribe the effect to be given to judicial proceedings of the federal courts,[1423] and may make all laws necessary for carrying into execution the judgments of federal courts.[1424] When a territory is admitted as a State

TS CONCERN

tain oil leases alleged to have been obtained from the Government by fraud, and to prosecute such other actions and proceedings, civil and criminal, as were warranted by the facts. This resolution also authorized the appointment of special counsel to have charge of such litigation. Private acts providing for a review of an order for compen

TIME

at the time the Constitution was adopted, but in so doing, it cannot go beyond the reach of that jurisdiction.[1430] This power cannot be delegated to th

hink proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred

enied to

RPOSE OF T

nactment of bills of attainder or ex post facto laws, the levying of taxes on exports, the granting of preference to ports of one State over another, the granting of titles of nobility,

n requiring escaped slaves to be returned to their masters (art. IV, § 1, cl. 3), was held by Chief Justice Taney in Scott v. Sanford,[1434] to show conclusively t

shall not be suspended, unless when in Cases of Reb

AS C

e of t

cause.[1437] While the Supreme Court conceded at an early date that the authority of the federal courts to entertain petitions for habeas corpus derived solely from acts of Congress,[1438] a narrow majority recently asserted the right to expand the scope of the writ by judicial interpretation and to sanction its use for a purpose unknown to the common law, i.e., to bring a prisoner into court to argue his own appeal. Speaking for the majority Justice Murphy declared that: "However, we do not conceive that a circuit court of appeals, in issuing a writ of habeas corpus under § 262 of the Judici

y Be Corrected

n appeared on the face of the record of the Court which convicted him. A showing in a return to a writ that the prisoner was held under final process based upon a judgment of a court of competent jurisdiction closed the inquiry.[1442] Under the Judiciary Act of 1789[1443] the same rule obtained.[1444] But by the act of February 5, 1867,[1445] Congress extended the writ to all persons restrained of their liberty in violation of the Constitution or a

Not a Substi

substitute for an appeal or writ of error.[1448] But if special circumstances make it advantageous to use this writ in aid of a just disposition of a cause pending on appeal it may be used for that purpose.[1449] Where fa

ce of

result in his immediate release.[1452] A discharge of a prisoner on habeas corpus is granted only in the exercise of a sound judicial discretion.[1453] While the strict doctrine of res judicata does not apply to this proceeding,[1454] the Court may, in its discretion, dismiss a petition for habeas corpus where the ground on which it is sought had been alleged in a prior application, but the evidence to support

n of the

n Philadelphia and Washington.[1459] In Ex parte Merryman,[1460] Chief Justice Taney strongly denounced the President's action and reasserted the proposition that only Congress could suspend the writ. Attorney General Bates promptly challenged Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not speak of suspending the privilege of the writ, but of suspending the powers vested in the Court by the act," he took the position that the constitutional provision was itself the equivalent of an Act of Parliament.[1461] Thereafter, by an express provision of the act of Ma

ttainder or ex post fa

OF ATT

of the Constitution, however, bills of attainder include bills of pains and penalties.[1466] As interpreted by the Supreme Court, this clause prohibits all legislative acts, "no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial * * *"[1467] Two acts of Congress-one w

T FACT

ini

egislation of any other kind,[1472] the constitutional prohibition may not be evaded by giving a civil form to a measure which is essentially criminal.[1473] Every law which makes criminal an act which was innocent when done, or which inflicts a greater punishment than the law annexed to the crime when committed, is an ex post facto law within the prohibition of the Constitution.[1474] A prosecution under a temporary statute which was extended be

titutes P

was upheld even as applied to a person who had not practiced polygamy since the act was passed, because the law did not operate as an additional penalty for the offense of polygamy but merely defined it as a disqualification of a voter.[1478] A deportation law authorizing the Secretary of Labor to expel aliens for criminal

Place or M

of trial thereafter.[1481] A law which alters the rule of evidence to permit a person to be convicted upon less or different evidence than was required when the offense was committed is invalid,[1482] bu

all be laid, unless in Proportion to the Census

CT T

ylton

conveyance of persons, which shall be kept by, or for any person, for his own use, or to be let out for hire, or for the conveying of passengers. In a fictitious statement of facts, it was stipulated that the carriages involved in the case were kept exclusively for the personal use of the owner and not for hire. The principal argument for the constitutionality of the measure was made by Hamilton, who treated it as an "excise tax,"[1487] while Madison both on the floors of Congress and in correspondence attacked it as "direct" and so void, inasmuch as it was levied without apportionment.[1488] The Court, taking the position that the direct tax clause constituted in practical operation an exception to the general taxing powers of Congress, held that

lton to the

e circulating notes of State banks,[1491] an inheritance tax on real estate,[1492] and finally a general tax on incomes.[1493] In the last case, the Court took pains to state that it regarded the term "direct taxes" as having acquired a definite and fixed meaning-to-wit, capitation taxes, and taxes on hand.[1494] Then, almost one hundred years after the Hylton

of the Pol

aid by the manufacturer.[1500] Again, in Thomas v. United States,[1501] the validity of a stamp tax on sales of stock certificates was sustained on the basis of a definition of "duties, imposts and excises." These terms, according to the Chief Justice, "were used comprehensively to cover customs and excise duties imposed on importation, consumption, manufacture and sale of certain commodities, privileges, particular business transactions, vocations, occupations and the like."[1502] On the same day it ruled, in Spreckels Sugar Refining Co. v. McClain,[1503] that an exaction denominated a special excise tax imposed on the business of refining sugar and measured by the gross receip

year 1909 on the use of foreign built yachts-a levy not distinguishable in substance from the carriage tax involved in the Hylton case as construed by the Supreme Court-counsel did not even suggest that the tax should be classed as

no difficulty in deciding that the inclusion in the computation of the estate tax of property held as joint tenants,[1509] or as tenants by the entirety,[1510] or the entire value of community property owned by husband and wife,[1511] or the proceeds of insurance upon the life of the decedent,[1512] did not amount to direct taxation of such property. Similarly it upheld a graduated ta

ella

alty imposed for nonpayment of a direct tax is not a part of the tax itself and hence is not subject to the rule of apportionment. Accordingly, the Supreme Court sustained the penalty of fifty percent w

shall be laid on Articles

ON E

s not levied on goods in course of exportation nor because of their intended exportation.[1519] Where the sale to a commission merchant for a foreign consignee was consummated by delivery of the goods to an exporting carrier, the sale was held to be a step in the exportation and hence exempt from a general tax on sales of such commodity.[152

mp

25] is in effect a tax or duty upon exports, and so void; but an act requiring the stamping of all packages o

nue to the Ports of one State over those of another: nor shall Vessels bound

PREFEREN

es, improve rivers and harbors, and provide structures for the convenient and economical handling of traffic.[1527] A rate order of the Interstate Commerce Commission which allowed an additional charge to be made for ferrying traffic across the Mississippi to cities on the east bank of the river was sustained over the objection that it gave an unconstitutional preference to ports in Texas.[1528] Although there were a few early intimations that this clause was ap

ppropriations made by Law; and a regular Statement and Account of the Receip

OPRI

ide that certain persons, i.e., those who had aided the rebellion, should not be paid out of the funds made available by the general appropriation, but that such persons should seek relief from Congress.[1536] The Court has also recognized that Congress has a wide discretion as to the extent to which it shall prescribe details of expenditures for which it appropriates funds and has approved the frequent practice of making general appropriations of large amounts to be allotted and expended as directed by designated government agencie

NT OF

the Rebellion, but had thereafter received a pardon from the President. The Supreme Court held that Congress could not prescribe the evidentiary effect of a pardon in a proceeding in the Court of Claims for property confiscated during the Civil War,[1540] but that where the confiscated property had been sold and the pr

ffice of Profit or Trust under them, shall, without the Consent of the Congress, accept of any pr

wer, even that of negotiating a treaty for it, provided he does not become an officer of that power, but the acceptance of a formal commission, as minister plenipotentiary, creates an offic

; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any

nied to t

LIANCES OR C

ecently the kindred idea that the responsibility for the conduct of foreign relations rests exclusively with the Federal Government prompted the Court to hold that, since the oil under the three mile marginal belt along the California coast might well become the subject of international dispute and since the ocean, including this three mile belt, is of vital consequence to the nation in its desire to engage in commerce and to live in peace with the world, the Federal Government has paramount rights in and power over that belt, including full dominion over the resources of

OF C

ssued by loan offices established by the State of Missouri, and made receivable in payment of taxes or other moneys due to the State, and in payment of the fees and salaries of State officers, were held to be bills of credit whose issuance was banned by this section.[1549] The States are not forbidden, however, to issue coupons receivable for taxes,[1550] nor to execute instrumen

L TE

and discharge of an execution, the creditor was entitled to demand payment in gold or silver.[1557] Since, however, there is nothing in the Constitution which prohibits a bank depositor from consenting

OF ATT

nfederacy from following certain callings, by the device of requiring them to take an oath that they had

T FACT

of Pro

the courts.[1561] Even though a law is ex post facto and invalid as to crimes committed prior to its enactment, it is nonetheless valid as to subsequent offenses.[1562] If it mitigates the rigor of the law in force at the time the crime was committed,[1563] or if it merely penalizes the continuance of cond

e Privileges to

meanor to practice medicine after conviction of a felony may be enforced against a person so convicted before the act was passed.[1566] But the test oath prescribed after the Civil War, whereby office holders, teachers, or preachers were required to swear that they had not par

in Pun

criminals sentenced to death to be kept thereafter in solitary confinement,[1571] or allowed a warden to fix, within limits of one week, and keep secret the time of execution,[1572] were held to be ex post facto as applied to offenses committed prior to their enactment. But laws providing heavier penalties for new crimes thereafter committed by habitual criminals;[1573] changing th

s in P

ate court into divisions,[1579] granting a right of appeal to the State,[1580] changing the method of selecting and summoning jurors,[1581] making separate trials for persons jointly indicted a matter of discretion for the trial court rather than a matter of right,[1582] and allowing a comparison of handwriting experts[1583] have been sustained over the objection that they were ex post fa

ION OF

tion o

principle of the separation of powers forbid the idea that the courts "make" law, but the word "pass" in the above clause seems to confine it to the formal and acknowledged methods of exercise of the law-making function. Accordingly, the Cou

h are fairly obvious, this rule does not hold when the contract is one whose obligation is alleged to have been impaired by State law.[1589] Otherwise, the challenged State authority could be vindicated through the simple device of a modification or outright nullification by the State court of the contract

t; (3) later the State legislature passes an act to repeal certain taxes to meet the bonds; (4) it is sustained in doing so by a decision of the highest State court holding that the statute authorizing the bonds was unconstitutio

between citizens of different States, which reaches it via a lower federal court.[1592] This is because in cases of this nature the Court formerly felt free to determine questions of fundamental justice for itself. Indeed, in such a case, the Court has apparently in the past regarded itself as free to pass

er hand, of which it obtains jurisdiction only on the constitutional ground, and by appeal from a State court, it has always adhered in terms to the doctrine that the word "laws" as used in article I, section 10, does not comprehend judicial decisions. Yet even in these cases, it will intervene to protec

d adherent decisions, Chief Justice Taft said: "These cases were not writs of error to the Supreme Court of a State. They were appeals or writs of error to federal courts where recovery was sought upon municipal or county bonds or some other form of contracts, the validity of which had been sustained by decisions of the Supreme Court of a State prior to their execution, and had been denied by the same court after their issue or making. In such cases the federal courts exercising jurisdiction between citizens of different States held themselves free to decide what the State law was, and to enforce it as laid down by the State Supreme Court before the contracts were made rather than in later decisions. They did not base this concl

doctrine that the law in force when a contract is made enters into and comprises a part of the contract itself.[1596] Hence the Court sometimes recognizes the term in its decisions applying the clause, sometimes ignores it. In Sturges v. Crowninshield,[1597] decided in 1819, Marshall defines "obligation of contract" as "the law which binds the parties to perform their agreement"; but a little later the same year he sets forth the points presented for consideration in Trustees of Dartmouth Col

t only are existing laws read into contracts in order to fix obligations as between the parties, but the reservation of essential attributes of sovereign power is also read into contracts as a postulate of the legal order. The policy of protecting contracts against impairment presupposes the maintenance of a government by virtue of which contractual relations are worth while,-a government which re

d of these the vast proportion involved legislative grants of one type or other, the most important category being charters of incorporation.[1604] Nor does this numerical prominence of such grants in the cases overrate their relative importance from the point of view of pu

vention, in regard to private debts. "A violation of contracts," said he, "had become familiar in the form of depreciated paper made a legal tender, of property substituted for money, and i

for both alterations, inasmuch as two years earlier he had denounced a current proposal to repeal the Bank of North America's Pennsylvania charter, in the following words: "If the act for incorporating the subscribers to the Bank of North America shall be repealed in this manner, a precedent will be established for repealing, in the same manner, every other legislative charter in Pennsylvani

ction in assumpsit brought by a citizen of South Carolina against the State of Georgia. This construction of the federal judicial power was, to be sure, pr

perform their undertaking." Whence, however, comes this law? If it comes from the State alone, which Marshall was later to deny even as to private contracts,[1609] then it is hardly possible to hold that the States' own contracts are covered by the clause, which manifestly does not create an obligation for contracts but only protects such obligation

her v

d that the contracts clause protected public grants. By an act passed on January 7, 1795, the Georgia Legislature directed the sale to four land companies of public lands comprising most of what are now the States of Alabama and Missi

rruption; * * * [Moreover, he added,] the Constitution of the United States, article first, section tenth, declares that no State shall pass a law impairing the obligations of contract. This must be equivalent to saying no State shall pass a law revoking, invalidating, or altering a contract. Every grant from one to another, whether the grantor be a State or an individual, is virtually a contract that the grantee shall hold and enjoy the thing granted against the grantor, and his representatives. It, therefore, appears to me that taking the terms of the

s, every grant is attended by "an implied contract" on the part of the grantor not to claim again the thing granted. Thus, grants are brought within the category of contracts having continuing obligation and so within article I, § 10. But the question still remained of the nature of this obligation. Marshall's ans

rsey v

to a grant of immunity from taxation which the State of New Jersey had accorded certain Indian lands; and severa

ers, Different

ges of doing business in the form of a corporation. Nowadays, indeed, when corporate charters are usually issued to all legally qualified applicants by an administrative officer who acts under a general statute, this would probably seem to be the natural way of regarding them were it not for the Dartmouth College decis

terms. This is the way in which some of the early State courts did regard them at the outset.[1617] It is also the way in which Blackstone regards them in relation to the royal prerogative, although not in

mouth Co

and the British Crown, on the other, which contract still continued in force between the State of New Hampshire, as the successor to the Crown and Government of Great Britain, and the trustees, as successors to the donors. The charter, in other words, was not simply a grant-rather it was the documentary record of a sti

t of education. Fortunately or unfortunately, in dealing with this phase of the case, Marshall used more sweeping terms than were needful. "The objects for which a corporation is created," he wrote, "are universally such as the government wishes to promote. They are deemed beneficial to the country; and this benefit constitutes the consideration, and in most cases, the sole consideration of the grant."

Cases Under

s. The chief category of the first line of cases consists, in turn, of those involving corporate privileges, both those granted directly by the States and those granted by

ic G

powers may be enlarged, abridged, or entirely withdrawn at the pleasure of the legislature.[1627] The same principle applies, moreover, to the property rights which the municipality derives either directly or indirectly from the State. This was first held as to the grant of a franchise to a municipality to operate a ferry, and has since then been recognized as the universal rule.[1628] As was stated in a case decided in 1923: "The distinction between the municipality as an agent of the State for governmental purposes and as an organization to care for local needs in a private or proprietary capacity," while it limits the legal liability of municipalities for the negligent acts or omissions of its officers or agents, does not, on the other hand, furnish ground for the applicati

rendered.[1635] Also, an express contract between the State and an individual for the performance of specific services falls within the protection of the Constitution. Thus a contract made by the governor pursuant to a statute authorizing the appointment of a commissioner to conduct, over a period of years, a geological, mineralogical, and agricultural survey of the State, for which a definite sum had been authorized, was held to have been impaired by repeal of the statute.[1636] But a resolution of a New Jersey local board of education reducing teachers' salaries for the school year 1933-1934, pursuant to an act of the legislature authorizing such action, was held not to impair the con

been easy to do. In pursuance of the precedent set in New Jersey v. Wilson,[1640] the legislature of a State "may exempt particular parcels of property or the property of particular persons or corporations from taxation, either for a specified period or perpetually, or may limit the amount or rate of taxation, to which such property shall be subjected," and such

ge, from the nature of the language used and the circumstances under which it was adopted."[1643] When, however, the State of Michigan pledged itself, by a general legislative act, not to tax any corporation, company, or individual undertaking to manufacture salt in the State from water there obtained by boring on property used for this purpose and, furthermore, to pay a bounty on the salt so manufactured, it was held not to have engaged itself within the constitutional sense. "General encouragements

ys to be the case when the beneficiaries were already in existence when the exemption was created and did nothing of a more positive nature to qualify for it than to continue in exist

re does not protect vested rights that are not referable to such an agreement between the State and an individual, such as the right to recov

the Right to

may reserve in a corporate charter the right to "amend, alter, and repeal" the same, and such reservation becomes a part of the contract between the State and the incorporators, the obligation of which is accordingly not impaired by the exercise of the right.[1648] Later decisions recognize that the State may reserve the right to amend, al

nt. None the less, there are a number of judicial dicta to the effect that this power is not without limit, that it must be exercised reasonably and in good faith, and that the alterations made must be consistent with the scope and object of the grant, etc.[1651] Su

heat to the State. The primary heirs of the defunct organization are its creditors; but whatever of value remains after their valid claims are met goes to the former shareholders.[1653] By the earlier weight of authority, on the other hand, persons who contract with companies whose charters are subject to legislative amendment o

esumed to be subject to the legislative power of the State; from which it follows that immunities conferred by charter are to be treated as exceptions to an otherwise controlling rule. This principle was recognized by Chief Justice Marshall in the case of Provid

e right, in furtherance of the public safety, to require chartered companies operating railways to fence in their tracks and provide cattle yards. In a matter of this nature, said the Court, corporations are on a level with individuals engaged in the same business, unless, from th

nstruction of

einforced by two others, the first of which is that all charter privileges and immunities are to be strictly construed a

State's permitting another company of later date to operate a free bridge in the immediate vicinity. Inasmuch as the first company could point to no clause in its charter which specifically vested it with an exclusive right, the Court held the charter of the second company to be valid on the principle just stated. Justice Story, who remained from the old Benc

beginning. Chief Justice Taney's opinion evinces the influence of both these developments. The power of the State to provide for its own internal happiness and prosperity was not, he asserted, to be pared away by mere legal intendments; nor was its ability to

ileges may be intelligently granted or purposely withheld. It is a matter of common knowledge that grants of this character are usually prepared by those interested in them, and submitted to the legislature with a view to obtain from such bodies the most liberal grant of privileges which they are willing to give. This is one among many reasons why they are to be strictly construed. * * * 'The principle is this, that all rights which are asserted against the State must be clearly de

ss permission by the State, be passed on to a successor.[1664] Thus, where two companies, each exempt from taxation, were permitted by the legislature to consolidate the new corporation was held to be subject to taxation.[1665] Again, a statute which granted a corporation all "the rights and privileges" of an earlier corp

on was held to refer only to the property actually employed in its business.[1669] Also, the charter exemption of the capital stock of a railroad from taxation "for ten years after completion of the said road" was held not to become operative until the completion of the road.[1670] So also the exemption of the campus and endowment fun

the reasonableness of such rates.[1674] The grant to a company of the right to supply a city with water for twenty-five years was held not to prevent a similar concession to another company by the same city.[1675] The promise by a city in the charter of a water company not to make a similar grant to any other person or corporation was held not to prevent the city itself from engaging in the business.[1676] A municipal concession to a water company which was to run for thirty years and which was accompanied by the provision that the "said company shall charge the following rates," was held not t

of Inalienabl

on whatsoever, is ipso facto void, and hence incapable of producing a "contract" within the meaning of article I, section 10. One of the earliest cases to assert this principle occurred in New York in 1826. The corporation of the City of New York, having conveyed certain lands for the purposes of a church and cemetery together wi

ake a new grant to a competing company, the Court held that the obligation of the earlier exclusive grant was sufficiently recognized in making just compensation for it; and that corporate franchises, like all other forms of property, are

linois Central Railroad Company, its successors and assigns, the State's right and title to nearly a thousand acres of submerged land under Lake Michigan along the harbor front of Chicago, and four years later sought to repeal the grant, the Court, in a four-to-three decision, sustained an action by the State to recover the lands in question. Said Justice Field, speaking for the majority: "Such abdication is not consistent with the exercise of that trust which requires the government of the Sta

Court ruled that the Georgia Railway Company was entitled to seek an injunction in the federal courts against an attempt by Georgia's Revenue Commission to compel it to pay ad valorem taxes contrary to the terms of its special charter issued in 1833. To

d a year later the legislature passed an act to put this provision into effect. In upholding this act and the constitutional provision on which it was based, the Court said: "The power of governing is a trust committed by the people to the government, no part of which can be granted away. The people, in their sovereign capacity, have established their agencies

business. Although the State did not offer to compensate the older company for the lost monopoly, its action was sustained on the ground that it had been taken in the interest of the public health.[1688] When, however, the City of New Orleans, in reliance on this precedent

express grant; and all contract and property rights are held subject to its fair exercise."[1690] Today, indeed, it scarcely pays a company to rely upon its charter privileges or upon special concessions from a State in resisting the application to it of measures claiming to have been enacted by the police power thereof. For if this claim is sustained by the Court, the obligation of the contract clause will not avail; while if it is not, the due process of

te Co

, is not a contract in the sense of the Constitution;[1691] nor is marriage.[1692] And whether a particular agreement is a valid co

olving such a contract to reach the Supreme Court was Sturges v. Crowninshield[1694] in which a debtor sought escape behind a State insolvency act of later date than his note. The act was held inoperative; but whether this was because of its retroaction in this particular case or for the broader reason that it assumed

intrinsic obligation which always attaches under natural law to the acts of free agents. "When," he wrote, "we advert to the course of reading generally pursued by American statesmen in early life, we must suppose that the framers of our Constitution were intimately acquainted with the writings of those wise and learned men whose treatises on the laws of nature a

law-State statutes and judicial decisions-and that the inhibition of article I, section 10, is confined to legislative acts made after the contracts affected by them, with one exception. For by a curi

of the contract itself is a part of such law. Also, the law which interprets the terms used in the contract, or which supplies certain terms when others are used; as for instance, constitutional provisions or statutes which determine what is "legal tender" for the payment of debts;

art of the

of the law supplying the obligation of contracts. Originally, the predominating opinion was negative, since as we have just seen, this law does not really come into operation until the contract has been broken. Yet it is obvious that the sanction which this law lends to contracts is extremely important-indeed, indispensable. In due course it became the accepted doctrine that that part of the law which supplies one party to a contract with a remedy if the other party does not live up to his agreement, as authoritatively interpreted, entered into the

legislature which required mortgaged premises to be sold for not less than two-thirds of the appraised value, and allowed the mortgagor a year after the sale to redeem them. It was held that the statute, in altering the preexisting remedies to such an extent, violated

re."[1700] Thus States are constantly remodelling their judicial systems and modes of practice unembarrassed by the obligation of contracts clause.[1701] The right of a State to abolish imprisonment for debt was early asserted.[1702] Again the right of a State to shorten the time for the bringing of actions has been affirmed even as to existing causes of action, but with the proviso added that a reasonable time must be left for

ven cannot be withdrawn until the contract is satisfied." In this case the Court issued a mandamus compelling the city officials to levy taxes for the satisfaction of a judgment on its bonds in accordance with the law as it stood when the bonds were issued.[1708] Nor may a State by dividing an indebted municipality among others enable it to escape its obligations. In such a case the debt follows the territory, and the duty of assessing and collecting taxes to satisfy it devolves upon the succeeding corporations and their officers.[1709] But where a municipal organization has ceased practically to exist through the vacation of its offices, and the government's function is exercised once more by the State directly, the Court has thus far fo

racts and th

its own powers. So, when it was contended in an early Pennsylvania case, than an act prohibiting the issuance of notes by unincorporated banking associations was violative of the obligation of contracts clause because of its effect upon certain existing contracts of members of such associations, the State Supreme Court answered: "But it is said, that the members had formed a contract between themselves, which would be dissolved by the stoppage of their business; and w

tracts does not prevent the State from exercising such powers as are vested in it for the promotion of the common weal, or are necessary for the general good of the public, though contracts previously e

of beer, valid when entered into, were similarly nullified by a State prohibition law;[1716] and contracts of employment were modified by later laws regarding the liability of employers and workmen's compensation.[1717] Likewise a contract between plaintiff and defendant did not prevent the State from making the latter a concession which rendered the contract worthless;[1718] nor did a contra

ings, including apartment and tenement houses, within the City of New York and contiguous counties of possessory remedies for the eviction from their premises of tenants in possession when the law took effect, providing the latter were able and willing to pay a reasonable rent. In answer to objections leveled against this legislation on the basis of the obligation of contracts clause, the Court said: "But contracts are made subject to this exercise of the power of the State w

the public domain, the pressure of a constantly increasing density of population, the interrelation of the activities of our people and the complexity of our economic interests, have inevitably led to an increased use of the organization of society in order to protect the very bases of individual opportunity. Where, in earlier days, it was thought that only the concerns of individuals or of classes were involved, and that those of the State itself were touched only remotely,

of the Cl

ch, reciting the existence of a severe financial and economic depression for several years and the frequent occurrence of mortgage foreclosure sales for inadequate prices, and asserting that these conditions had created an economic emergency calling for the exercise of the State's police power, authorized its courts to extend the period for redemption from foreclosure sales for such additional time as they might deem just and equitable, although in no event beyond May 1, 1935. The act also left the mortgagor in possession during the period of extension, subject to the requirement that he pay a reasonable rental for the property as fixed by the Court, at such time and in such manner as should be determined by the Court. Contemporaneously, however, less carefully drawn statutes from Missouri and Arkansas, acts which were less considerate of creditor's rights, were set aside as violative of the contracts clause.[1728] "A State is free to regulate the procedure in its courts even with reference to contracts already made," said Justice Cardozo for the Court, "and moderate extensions of the time for plea

ee at the foreclosure sale was equal to the debt secured by the mortgage.[1731] "Mortgagees," the Court said, "are constitutionally entitled to no more than payment in full. * * * To hold that mortgagees are entitled under the contract clause to retain

ata Pertinent

was the period of Waite's chief justiceship, twenty-nine cases reached the Court in which State legislation was set aside under the clause. Twenty-four of these involved public contracts. The decline of the importance of the clause as a title in Constitutional Law began under Chief Justice Fuller (1888 to 1910). During this period less tha

s required to pass upon several of these. At the same time the clause was, in effect, treated by the Court in two important cases as interpretive of the due process clause, Amendment V, and thus applied indirectly as a restriction on the power of Congress.[1735] But this emergence of the clause into prominence was a flash in the pan. During the last decade hardly a case a te

ely necessary for executing it's inspection Laws: and the net Produce of all Duties and Imposts, laid by any State on Imports or Exports,

EXPORTS

c

er as an import, and has become subject to the taxing power of the State; but while remaining the property of the importer, in his warehouse, in the original form or package in which it was imported, a tax upon it is too plainly a duty on imports, to escape the prohibition in the Constitution."[1740] A box, case or bale in which separate parcels of goods have been placed by the foreign seller is regarded as the original package, and upon the opening of such container for the purpose of using the separate parcels, or of exposing them for sale, each parcel loses its character as an import and becomes subject to taxation as a part of the general mass of property in the State.[1741] Imports for manufacture cease to be such when the intended pro

lege

rchandise in original packages, and a tax on the sale of goods in foreign commerce consisting of an annual license fee plus a percentage of gross sales,[1751] have been held invalid. On the other hand, pilotage fees,[1752] a tax upon the gross sales of a purchaser from the importer,[1753] a license tax upon dealing in fish which, through processi

erty

an import,[1757] but the proceeds of the sale of imports, whether in the form of money or notes, may be taxed by a State.[1758]

ction

of putting up, and marking and branding of various kinds, * * *" .[1762] It sustained as an inspection law a charge for storage and inspection imposed upon every hogshead of tobacco grown in the State and intended for export, which the law required to be brought to a State warehouse to be inspected and branded. The Court has cited this section as a recognition of a general right of the States to pass inspection laws, and to bring, within their reach articles of interstate, as well as of foreign, commerce.[1763] But on the ground that, "i

ps of War in time of Peace, enter into any Agreement or Compact with another State, or with a foreign P

AGE

ning wharfage charges, it is immaterial whether the wharf was built by the State, a municipal corporation or an individual; where the wharf is owned by a city, the fact that the city realized a profit beyond the amount expended does not render the toll objectionable.[1768] The services of harbor masters for which fees are allowed must be actually rendered, and a law permitting harbor masters or port wardens to impose a fee in all cases is void.[1769] A State may not levy a tonnage duty to defray the expenses of its

ING

o strong to be controlled by civil authority;[1774] and the organization and maintenance of an active

TATE C

ound o

tution went further. By the first clause of this section they laid down an unqualified prohibition against "any treaty, alliance or confederation"; and by the third clause they required the consent of Congress for "any agreement or compact." The significance of this distinction was pointed out by Chief Justice Taney in Holmes v. Jennison.[1781] "As these words ('agreement or compact') could not have been idly or superfluously used by the framers of the Constitution, they cannot be construed to mean the same thing with the word treaty. They evidently mean something more, and were designed to make the prohibition more comprehensive. * * * The word 'agreement,' does not necessarily import and direct any express stipulation; nor is it necessary that it should be in writing. If there is a verbal understanding, to which both parties have assented, and upon which both are acting, it is an 'agreement.' And the use of all of these terms, 'treaty,' 'agreement,' 'compact,' show that it was the intention o

er of Inters

ocation of water supplied by interstate streams, are among the objectives accomplished by this means.[1785] Another important use of this device was recognized by Congress in the act of June 6, 1934,[1786] whereby it consented in advance to agreements for the control of crime. The first response to this stimulus was the Crime Compact of 1934, providing for the supervision of parolees and probationers, to which forty-five States had given adherence by 1949.[1787] Subsequently Congress has authorized, on varying conditions, compacts touching the production of tobacco, the conservation of natural

t of C

onsent of Congress may be granted conditionally "upon terms appropriate to the subject and transgressing no constitutional limitations."[1793] And in a recent instance it has not been forthcoming at all. In Sipuel v. Board of Regents,[1794] decided in 1948, the Supreme Court ruled that the equal protection clause of Amendment XIV requires a State maintaining a law school for white students to provide legal education for a Negro applicant, and to do so as soon as it does for applicants of any other group. Shortly thereafter the governors of 12 Southern States convened to canvass methods for meeti

ise to Corporati

lroad into such State and to receive a grant of powers to own and control, by lease or purchase, railroads therein, and to subject itself to such rules and regulations as may be prescribed by the second State.

t of Inters

ens of the signatory States and are conclusive as to their rights.[1798] Private rights may be affected by agreements for the equitable apportionment of the water of an interstate stream, without a judicial determination of existing rights.[1799] Valid i

DE

e's constitution as interpreted by the highest State court she had lacked power to enter into such an agreement and was without power to

o

at. 316,

e pp.

.S. 46, 8

Wheat.

Ibid

Ibid

ies, § 1256. See also

et. 511

bid.

Ibid.

lvania, 16 Pet. 539,

0 (1884). See also Justice Bradley's concurring

es v. Jones, 109

es v. Kagama, 11

v. United States, 1

idowitz et al., 3

U.S. 30

ment in the field of foreign relations, see Penhallow v. Doane, 3 Dall. 54, 80, 81 (1795); also ibid. 74 and 7

atise on Government, C

U.S. 39

bid. 4

Southard, 10

Aurora, 7 Cr

outhard, 10 Whea

10 U.S. 381, 398 (1940); United States v. Rock

ck Royal Co-operative, 3

strator, 312 U.S. 126, 144 (1941); American Power & Light Co. v. Securities & Exchange Comm., 329 U

ties Corp. v. United State

(1933); National Broadcasting Co. v. United States, 319 U.S. 190, 225 (1943); Feder

ited States, 334 U

.S. 388 (1935); Schechter Poultry Corp.

e Anthracite Coal Co. v. Adkins, 310 U.S. 381 (1940); Bowles v. Willingham,

Mallonee, 332

Ibid.

Kollock, 165 U

. Stranahan, 192

s v. Grimaud, 220

veport Grain & Elevator Co

Wallace, 306

ited States, 266

Rock Royal Co-operativ

ited States, 321

Willingham, 321

e Coal Co. v. Adkins, 3

20 U.S. 81, 104 (1943); Korematsu v.

Mallonee, 332

. Smith, 307 U

mm'n. v. Goodrich Transit C

ion were not subject to judicial review, the Supreme Court implicitly sanctioned the exercise o

. United States, 276

Chicago, M. & St. P.R. Co

1913); New York v. United States, 331 U.S. 284, 340-350 (1947) and cases ci

. v. United States,

llows, ex rel. Union Trust

(1924); United States ex rel.

rities Corp. v. United Sta

. Nelson Bros. Bond & Mortga

ing Co. v. United State

, as amended, 7 U

trative agents. Under these principles, the Court would refrain from setting aside administrative findings of fact when supported by substantial evidence; we would give weight to the interpretation of a statute by its administrators; when, administrators have interpreted broad statutory terms, such, as h

rhardt v. Boaro, 113 U.S. 527 (1885); Butte

S.R. Co. v. Taylor, 2

.S. 495, 5

.S. 238, 3

1939); United States v. Rock Royal C

allace, 306 U.S.

Cr. 382

Ibid.

U.S. 64

Ibid.

bid. 6

o. v. United States,

.S. 304, 3

the President. The government contended that statute under which the sale was made was unconstitutional because, in giving the President full power of disposition of the property, it delegated legislative power to the President. Declaring that "It

U.S. 38

U.S. 12

bid. 1

n Proclamation of a National Emergency by the President. The Digest is dated

s v. Grimaud, 220

Inc. v. Bowles, 322

es v. Eaton, 144

. Inc. v. Bowles, 3

v. United States, 3

the Congressional Power of Investigation,

s of Congres

House of Representatives advising them of his resignation from office and inviting an in

g. Deb. 21

ng. Deb. 1

4th Cong., 2d sess., Ser.

36th Cong. 1st ses

U.S. 16

S. 135, 177

eb. 862, 868,

U.S. 16

U.S. 44

mmerce Commission, 211 U.S. 407 (1908); Smith v. I

U.S. 13

bid. 1

S. 168, 192

6 U.S. 6

Ibid

U.S. 135,

9 U.S. 2

Ibid

hapman, 166 U

9 U.S. 5

Wheat. 2

3 U.S. 5

Ibid

4 U.S. 1

bid. 14

eat. 204,

man, 166 U.S. 66

.S. 323, 330 (1950); United States

United States, 338 U.

all. 162, 171 (1875); Breedlove

kler, 179 U.S. 58, 62 (1900); Swafford v. Templeton, 185 U.

v. Classic, 313 U.

U.S. 383 (1915); United States v.

es v. Classic, 31

es v. Mosley, 238

1 (1946), superseded by 62 Stat. 696 (194

es v. Mosley, 238

es v. Saylor, 322

U.S. 220 (1918). See also United St

ong., 1st sess. (1935); 79

] No

the House of Representative

2 U.S. 3

Ibid.

the House of Representati

ong. Rec.

of the House of Represen

bid. §§

e among the several States, was changed by the Fourteenth Amendment, § 2 (p. 1170) a

r Cases, 12 Wall.

sal to cooperate properly with the census taker by ans

ing body"-McGrain v. Daugherty

2 (12 Stat. 572). See also Joel Francis Paschal, The House of Representatives "Grand Depository of the Democ

Stat. 2

); 16 Stat. 254 (1870);

Stat. 3

tes v. Reese, 92

0); Ex parte Clarke, 100 U.S. 399 (1880);

1 U.S. 5

); Koenig v. Flynn, 285 U.S. 375 (1932);

Stat. 2

Stat. 13,

Broom, 287 U

8 U.S. 5

bid. 55

Ibid.

84); United States v. Mosley, 238 U.S. 383 (191

y, 127 U.S. 73

0); Ex parte Clarke, 100 U.S. 309 (1880);

es v. Wurzbach, 2

United States, 2

v. Classic, 313 U.

ates ex rel. Cunningham,

oney, 134 U.S

sentatives, VI: §§ 72-74, 180 (1936). Cf. Newbe

ates ex rel. Cunningham,

Ibid

the House of Representati

4 U.S. 1

Ibid

] Ru

ves, IV: § 2910-2915 (1907); Cannon's Precedents of

les which support a filibuster are constitutionally compatible with the clause in the preceding section: "A majority of each [House] shall constitute a quorum to do business". See Franklin Burdette, Filibustering in the Senate (Princeton University Press, 1940), 6, 61, 111-112, 227-229

6 U.S. 6

8 U.S. 8

itle 22

143 U.S. 649, 669-673 (1892); United States v.

ited States, 202 U

an, 166 U.S. 661,

0, quoted with approval in Field

es v. Ballin, 144

brought under the Perjury Statute of the District of Columbia (§ 22-2501 of the D.C. Code) for alleged perjurious testimony before a Committee of the House of Representatives, the trial Court erred in charging the jury that it was free to ignore testimony that less than a quorum of the Committee was in attendance when the alleged perjury was committed. Four Justices dissented; and curiously enough only four of the majority were present when the opinion was delive

ited States, 127

Ansell, 293

Ibid

tes v. Cooper, 4

United States, 207 U

. Thompson, 103

5]

Mass.

hompson, 103 U.S. 1

Ibid

ed by the Constitution-the right of free speech. The charge * * * is that a legislative committee brought the weight of its authority down on respondent for exercising his right of free speech. Reprisal for speaking is as much an abridgment as a prior restraint. If a

atives, I: § 493 (1907); Cannon's Precedents of t

the House of Representati

Stat. 9

Stat. 6

declined to pass upon the validity of Justice Black's appointment. It seems curious that the Court, in rejecting petitioner's application,

ry, Constit

. Bank v. Nebeker,

. Roberts, 202

e Tracy Co., 220 U.

nited States, 232

ng Co. v. United States,

n of a bill enabled the President to sign it 23 days after the adjournment of Congress. Schmeckebi

. Collector, 6

so Burgess v. Salmon, 9

. Zane, 7 Wheat.

ited States, 17 Wal

ns v. United States,

nited States, 302

. Co. v. Kansas, 2

ll. 92, 112

Stat. 5

335; Hinds' Precedents of the House o

18, 1941 (55 Stat. 838); Emergency Price Control Act of January 30, 1942 (56 Stat. 23); Stabiliza

n Act of June 20, 1

n Act of April 3, 1

th v. Virginia, 3

x Cases, 5 Wall.

Union Pac. R.R.,

Ibid

3 U.S. 2

8 U.S. 5

7 U.S. 2

Wall. 1

O'Keefe, 306 U

U.S. 405,

nk v. Fenno, 8

. Baltimore & O.R. Co

7 U.S. 4

Wheat. 3

e Co. v. United States

heat. 419,

Bettman, 190 U.S

s, 199 U.S. 437 (1905). See also Ohi

0 U.S. 1

. Lewellyn, 258

e & Supply Co. v. United S

linois v. United State

Regents, 304

District v. Campbell

. Mitchell, 269

v. Powers, 293

v. Bunn, 282 U

, 303 U.S. 376 (1938), overruling Burnet v.

326 U.S. 572, 584 (1946), (concur

4 U.S. 4

Ibid.

6 U.S. 5

Ibid

Ibid.

Ibid

District v. Campbell

article I, sect

. 377 (1921); Brushaber v. Union P.R. Co., 240 U.S

v. Moore, 178

o, 317 U.S. 95 (1942); Phillips v. Commissioner of Internal Reven

v. Mellon, 273

Bidwell, 182 U

but took the position that the situation in substance was the same as if the taxes had b

x Cases, 5 Wall.

s v. Yuginovich, 2

v. Constantine, 296

x Cases, 5 Wall.

. United States, 1

ollock, 105 U

49 U.S. 86 (1919). Cf. Nigro v. U

United States, 30

United States, 1

tates v. Sanchez, 340 U.S. 42, 44 (1950). See also Son

ins, 310 U.S. 381, 383 (1940). See also H

20 (1922); Hill v. Wallace, 259 U.S. 44 (1922

6 U.S. 2

Stat. 24

6 U.S. 3

Ibid.

omas Jefferson, 147-149

Lawson, The General

deralist Nos

Ibid.

Stat. 22

Stat. 35

war and postal powers. See E.F. Albertsworth, "Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643, 644-647 (1935). Monroe himself ultimately adopted the broadest view of the spending power, from which, however, he car

e Governments, Federal Gr

7 U.S. 1

5 U.S. 1

ee also Alabama Power Co. v.

0 U.S. 6

Ibid

e also Cleveland v. United

U.S. 1, 65

spending the national revenues for the "general welfare" to see to it that the country got its money's worth thereof, an

1 U.S. 5

Ibid

Ibid

Co. v. United States

1 U.S. 6

S. 548, 589,

0 U.S. 1

Stat. 7

0 U.S. 1

, 163 U.S. 427 (1896); Pope v. Un

Co. v. United States

r. 358

Ibid

the Constitutional Convent

Ibid

l. 457 (1871), overruling Hepbur

S. 330, 351 (1935). See also Lynch v

onstitution (1898) 14. The balance began inclining the other

e vehicle, the agent, and their various operations, become the objects of commercial regulation. Shipbuilding, the carrying trade, and propagation of seamen, are such vital agents of commercial prosperity, that the nation which could not legislate over these subjects, would not possess power to regulate commerce." (ibid. 229-230). "It is all but impossible in our own age to sense fully its eighteenth-century meaning (i.e., the meaning of commerce). The Eighteenth Century did not separate by artificial lines aspects of a culture which are inseparable. It had no lexicon of legalisms extracted from the law reports i

Ibid

heat. 1,

2 U.S. 691 (1881); Covington Bridge Co. v. Kentucky, 154 U.S. 204 (1894); Kelley v. Rhoads, 188 U.

nal Text Book Co. v. Pigg, 217 U.S. 91, 106-107 (1910); Western Union Tel. Co. v. F

Co. v. Bondurant, 257 U.S. 282, 290-291 (1921); Stafford v. Wallace, 258 U.S. 495 (192

S. 1 (1888); Oliver Iron Co.

ew York L. Ins. Co. v. Cravens, 178 U.S. 389, 401 (1900); Fire Assoc. of Philadelphia v. New York, 119 U.S. 110 (1886)

Club v. National Leag

s. v. Curtis Pub. Co.

v. Fears, 179 U

foreign corporation was not interstate commerce, although provided for in the contract of purchase. Similarly in General Railway Signal Co. v. Virginia, 246 U.S. 500 (1918), where a foreign corporation installed signals in Virginia, bringing in materials, supplies, and machinery from without the State, the Court held that local business was involved, separate and distinct from interstate commerce, and subject to the licensing power of the State. However, in an interstate contract for the sale of a

ess v. United State

tes, 317 U.S. 519 (1943). Cf. United States v. O

s as today organized and carried on is stressed, although its intrastate elements are not overlooked. The Court's business is t

icle I, §

AL REGULATIONS OF PRODUCTIO

eat. 264,

heat. 1,

849); The Passaic Bridges, 3 Wall. 782 (Appendix), 793 (1866); United States v. Dewitt, 9 Wall. 41, 44 (1870); Patterson v. Kentucky, 97 U.S. 501, 503 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd

Wrightwood Dairy Co., 3

nburgh v. Hennick, 129 U.S. 141 (1889); Atlantic Cleaners and Dyers, Inc. v. United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. No. 2067 (1865). Transportation between two points in the same State, when a large part of the route is a loop outside the St

Wheat. 1

es (Lottery Case), 1

ited States, 236 U

husetts (License Cases)

Coal Co. v. Bates, 156

e Products Co., 304 U.S. 144,

l Ball," 10 Wall

v. Kimball, 102 U.S.

Liability Cases, 223 U

ove case. An

at. 1, 217,

leg. Co., 96 U.S. 1 (1878). See also Western U

employed in carrying on transportation by land and water.

sentials its procedure does not differ from that employed in sending telegraph or telephone messages across State lines, which is interstate commerce. Western Union Teleg. Co. v. Speight, 254 U.S. 17 (1920); New Jersey Bell Teleph. Co. v. State Bd. of Taxes & Assessments, 280 U.S. 338 (1930); Cooney v. Mountain States Teleph. & Teleg. Co., 294 U.S. 384 (1935); Pacific Teleph. & Teleg. Co. v. Tax Commission, 297 U.S. 403 (1936). In each, transmission is effected by means of energy manifestations produced at the poi

13 How

Stat. 1

power to regulate commerce with foreign nations and among the several States. The courts can never take the initiative on this subject." Parkersburg & O. River Transpor

3 Wall

Ibid.

Wisconsin v. Illinois, 278 U.S. 367 (1929). Of collateral interest are the following: South Carolina v. Georgia, 93 U.S. 4, 13 (1876);

(1899); United States v. Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Seattle v. Oregon & W.R. Co., 255 U.S. 56, 63 (1921); Economy Light & Power Co. v. United States, 256 U.S. 113 (1

tes v. Cress, 24

R. Co., 312 U.S. 592, 597 (1941); United States

.S. 690 (1899); and cf. below the discussion of United St

ll" v. United States

Ibid

Ibid

ching power, over an artificial as over a natural highway." Justice Brewer for t

inal facilities to a common carrier by water. Hence an order of the United States Maritime Commission banning certain allegedly "unreasonable practices" by terminals in the Port of San Francisco, and prescribing schedules of maximum free time periods and of minimum charges was constitutional. (California v. United States, 320 U.S. 577 (1944)). The same power also comprises regulation of the registry, enrollment, license, and nationality of ships and vessels; the method of recording bills of sale and mortgages thereon

under them, were not granted by the Constitution to the United States, but were reserved to the States respectively; and the n

l Co. v. Patten Paper Co.

9 U.S. 5

a Water Power Co. v. Green Bay &

283 U.

311 U.

U.S. at

U.S. at 40

11 U.S.

ips v. Atkinson Co., 313 U.S

ee Valley Authority, 297 U

Stat. 4

Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation v. Southern Kansas R. Co.

on had asked Congress "to prevent any selfish impediment [by the States] to the free circ

leg. Co. v. Western Union Teleg.

ed today by the Live Stock Transpo

U.S. 11

118 U.

Stat. 3

154 U.

68 U.S. 144, 176 (1897). See also Cincinnati, N.O. & T.P.R.

34 Sta

Stat. 5

tat. 1081), this jurisdiction was handed over to the

4 Stat. 898), which "was intended, together with the old law, to provide a completely integrated interstate regulator

e), 234 U.S. 342 (1914). Forty States, through their Attorneys

Ibid.

eleg. Co. v. Tax Commission (Washington), 297 U.S. 403 (1936); Weiss v. United States, 308 U.S. 321 (1939); Bethlehem S

7 U.S. 5

order of the Interstate Commerce Commission, setting aside State-prescribed intrastate passenger rates

vision of the same act abrogating life passes, Louisville & N.R. Co. v. Mottley, 219 U.S. 467 (1911); a provision of the same act authorizing the Commission to regulate the entire system of bookkeeping of interstate carriers, including intrastate accounts, Interstate Commerce Commission v. Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul" clause of the Interstate Commerce Act, United States v. Atchison, T. & S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of the Commission establishing the so-ca

io Oil Co. (Pipe Line Cas

allanan, 257 U.S. 265 (1921); United Fuel Gas Co. v. Hallanan, 257 U.S. 277 (1921); Pennsylvania v. West

d Electric Co., 273 U.S. 83 (1927). See also Utah

49 Sta

l Gas Act of 193

5 U.S. 5

ois Natural Gas Co. v. Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); also Federal Power Commission v. East Ohio Gas Co., 338 U.S. 464, decided January 9, 1950, where it was held that a natural gas company which, while operating exclusively in one State,

48 Sta

d in some respects in 1938 (52 S

52 Sta

ng with the Safety Appliance Acts mention should also be made of acts requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the

32 Sta

2 U.S. 2

1916); and United States v. California, 297 U.S. 175 (1936). In the l

34 Sta

. Interstate Commerce Com.,

o., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second Employers'

223 U.S.

arrington, 241 U.S. 177 (1916); Louisville & N.R. Co. v. Parker, 242 U.S. 13 (1916); Illinois Central R. Co. v. Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. v. Seale, 229 U.S. 156 (1913); Pedersen v. Delaware, L. & W.R. Co., 229 U.S. 146 (1913); Shanks v. Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh Valley R. Co. v. Barlow, 244 U.S. 183 (1917

8 U.S. 1

30 Sta

44. St

" employees of an interstate carrier, who engaged in making heavy repairs on locomotives and cars withdrawn from service for that purpose for long periods (an average of 105 days for locomotives and 109 days for cars), were held to be within the terms of the act as amended in 1934 (48 Stat. 1185). "The activities in wh

Chief Justice White, answered both objections by pointing to the magnitude of the emergency which had threatened the country with commercial paralysis and grave loss and suffering. To the familiar argument that "emergency may not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief Justice answered that "it may afford a reason for exerting a power already enjoyed." A further answer to ob

48 Sta

5 U.S. 3

Ibid

Ibid

majority of the Court, listed the Alton case as one "foredoomed to reversal," though the formal rev

0 U.S. 1

Ibid.

Stat. 2

6 U.S. 1

Ibid

and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate result may

aid that manufacture precedes commerce and is not a part of it. But it is equally true that when manufacture ends, that which has been manufactured becomes a subject of commerce; that buying and selling succeed manufacture, come into existence after the process of manufacture is completed, precede transportation, and are as much commercial intercourse, where articles are bought to be carried from one State to another, as is the manual transportation of such articles after they have been so purchased. The distinction was recognized by this court in Gibbons v. Ogden, where the principal question was whether commerce included navigation. Both the Court and counsel recognized buying and selling or barter as included in commerce. * * * The power of Congress covers and protects the absolute freedom of such intercourse and trade among the States as may or must succeed manufacture and precede transportation from the place of purchase." (p. 35-36). "When I speak of trade I mean the buying and selling of articles of every kind that are recognized articles of interstate commerce. Whatever improperly obstructs the free course of inters

5 U.S. 2

. 197 (1904). In the first of these cases the Court was confronted with the contention that the act had been intended only for the industrial combinations, and hence was not designed to apply to the railroads, for whose governance the Interstate Commerce Act had been enacted thr

a single state, the case was held to be one involving 'primarily' only 'production' or 'manufacturing,' although the vast part of the sugar produced was sold and shipped interstate, and this was the main end of the enterprise. The interstate distributing phase, however, was regarded as be

in all the vast operations of our gigantic national industrial system antecedent to interstate sale and transportation of manufactured products. Indeed, it and succeeding decisions, embracing the same artificiall

United States, 196

6 U.S. a

Ibid.

Ibid

nited Mine Workers of America, 268 U.S. 295 (1925); United States v. Brime, 272 U.S. 549 (1926); Bedford Co. v. Stone Cutters

42 Sta

bid. 99

8 U.S. 4

Ibid

Farmers' Grain Co., 258 U.S. 50 (1922);

2 U.S. 1

Ibid

Ibid

S. at 521; 2

48 Sta

49 Sta

; North American Co. v. S.E.C., 327 U.S. 686 (1946); Am

iary, market and distribute securities, control and influence the various operating companies, negotiate inter-system loans, acquire or exchange property, perform service contracts, or reap the benefits of stock ownership. * * * Moreover, many of the operating companies on the lower echelon sell and transmit electric energy or gas in interstate commerce to an extent that cannot be described as spasmodic or insignificant. * * * Congress, of course, has undoubted power under the commerce clause to impose relevant conditions and requirements on those who use the channels of interstate commerce so that those channels will not be conduits for promoting or perpetuating economic evils. * * * Thus to the extent that corporate business is transacted thr

Inc. v. United States,

48 Sta

5 U.S. 4

548. See als

lack, cited United States v. Walsh, 331 U.S. 432 (1947); Wickard v. Filburn, 317 U.S. 111 (1942); United States v. Wrightwood Dairy Co., 315 U.S. 110 (1942); United States v. Darby, 312 U.S. 100 (1941). The last three of these cases are discussed below. See pp. 155, 159. Justice Frankfurter dissented on the basis of F

on between "direct" and "indirect" effects, namely, the delegation of uncanalized legislative power; the absence of any administrative procedural safeguards; the absence of jud

Stat 31

v. Butler, 297 U.S.

49 Sta

arter Coal Co., 2

Ibid.

v. E.C. Knight Co.

1 U.S. 1

49 Sta

.S. at 38,

Co., 301 U.S. 49 (1937); National Labor Relations Board

tions Board v. Fainblatt,

g Co. v. National Labor Relations

52 Sta

s v. Darby, 312 U.

ibid. 113,

Ibid.

stitution, The Oliver Wendell Holmes Lecture

(1949), "necessary to the production thereof" becomes "directly essential to the production thereof." The effect of this change, which has not yet registered itself in judicial decision, seems likely to be slight, in view of the power, which the act gives the Administrator to l

ing, space in which is rented to persons producing goods principally

ny, who acted as rate clerk and performed other incidental

endent contractor, in partially drilling oil wells, a portion of the products from whic

ustomers within that State, after a temporary pause at such warehouses, of goods procured outside of the State upon pr

is part of a toll road used extensively by persons and vehicles traveling in interstate commerce, and which sp

ogs and from which a substantial portion of the manufactured product was shipped

ire-fighting service of an employer engaged in interstate

f an interstate retail chain store system (P

ents and substructures of bridges which were part of the line of an i

of the rental space was used for its central offices, where its production of goods for interstate commerce was administered, managed

dealing in electrical motors and generators for commercial and industrial uses, whose customers are enga

done on the windows of industrial plants of producers of goods for interstate c

es of a building corporation which furnishes loft space to tenants engaged in production for interstate commerce "unless an adequate proportion of such tenants are so engaged." (Schulte v. Gangi, 328 U.S. 108 (1946)). Also Section 12 (a) of the Fair Labor Standards Act, which provides that "no producer, * * * shall ship or deliver for shipment in commerce any goods produced in an establishment * * * in or about which * * * any oppressive child labor has been employed * * *" was held inapplicable to a company engaged in the transmission in interstate commerce of telegraph messages, (Western Union v. Lenroot, 323 U.S. 490 (1945)). The decision was a five-to-four one. It should be added that the Court has not always been unanimous in favoring coverage by the act. In the Borden case above, Chief Justice Stone, speaking for himself and Justice Roberts, protested, as follows: "No doubt there are philosophers who would argue, what is implicit in the decision now rendered, that in a complex modern society there is such interdependence of its members that the activities of most of them are necessary to the activities of most others. Bu

50 Sta

5 U.S. 1

Ibid.

7 U.S. 1

52 Sta

7 U.S. a

where commodities are bought for use beyond State lines, the sale is a part of interstate commerce. We have likewise held that where sales for interstate transportation were commingled with intrastate transactions, the existence of the local activity did not interfere with the federal power to regulate inspection of the whole. Activities conducted within the State lines do not by this fact alone escape the sweep of the Commerce Clause. Interstate commerce may be dependent upon them. Power to establish quotas for interstate marketing gives power to name quotas for that which is to be left within the State of production. Where local and

rts of this opinion are considered below in connection with the prohibiting of interstate commerc

9 U.S. 4

Ibid.

Stat.

Stat. 23

24 Sta

at. 614; 38

29 Sta

2 U.S. 4

cf. United States v. Cali

9 U.S. 3

Ibid

6 U.S. 2

tional Police Power Under the Commerce Clause,

aughter, 15 Pet. 4

Is

to lay down terms on which the activity regulated will be permitted and for noncompliance with which it will not be permitted. It is also evident that when occasion does arise for an outrigh

of the acts already treated is to lay down the conditions on which a designated branch of commerce among the States may be carried on; that of the acts now to be treated is to eliminate outright a designated branch of trade among the States. In other words, whereas the former acts were, in general, preservative of the commerce which they regulated because of its value to society, the latter regard the commerce which they reach as detrimental to society. The third, and most important difference from the point of view of Constitutional Law, is the difference in relation of the two categories of acts respectively to the reserved

ongress' Power To Proh

espective powers, yet collision is not contemplated as the rule of life of the system, but the contrary. And since there are these two spheres, the line to be drawn between them, in order to secure harmony instead of collision, should recognize that the objects which the National Government was established to promote are relatively few, while those which the States were retained to advance comprise the principal objectives of gov

tional Government is completely sovereign, and the power to regulate commerce with foreign nations is but a branch of this sovereign power. The power to regulate commerce among the States is, on the other hand, not a sovereign power ex

he States themselves." Madison IV, Letters and Other Writings, 15 (Philadelphia, 1865). Furthermore, it is a power which was designed for the promotion and advancement of commerce, not a power to strike commerce down in order to advance other purposes and programs.

ses, (Howard v. Illinois Central R. Co., 207 U.S. 463 (1908)), the majority of the Court, speaking through Justice White, gave special attention to the Government's argument that though the act, in terms, governed the liability of "every" interstate carrier to "any" of its employees, whether engaged in interstate commerce or not when the liability fell, it was none the less constitutional "because one who engaged in interstate commerce thereby submits all his business concerns to the regulating power of Congress." Justice White answered: "To state the proposition is to refute it. It assumes that because one engages in interstate commerce he thereby endows Congress with power not delegated to it by the Constitution; in other words, with the right to legislate concerning matters of purely State concern. It rests upon the conception that the Constitution destroyed that freedom of commer

nt Asserti

d be in a single government, having in its Constitution the same restrictions on the exercise of the power as are found in the Constitution of the United States. The wisdom and discretion of Congress," Marshall continued, "their identity with the people

was bestowed upon the National Government. No doubt it was expected that the States, too, would use the powers still left them to assist the same purposes, which indeed are those of good government always. Yet that circumstance should not operate to withdraw the powers delegated to the National Government from the service of these same ends. The fact, in other words, that the power to govern commerce among the States was bestowed by the Constitution on the National Government should not imply that it thereby became available merely for the purpose of fostering such commerce. It ought, on the contrary, to be applicable

t, then, when local legislative programs break down on account of the division of the country into States, it becomes the clear duty of Congress to adopt supplementary legislation to remedy the situation. In doing so, it is not undermining the Federal System; it is supporting it, by making it viable in modern conditions. The assemblage of the States in one Union was never intended to put one State at the mercy of a

subject appears to have been committed? * * * The power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement; but, in our national system, as in all modern sovereignties, it is also to be considered as an instrument for other purposes of general policy and interest. * * * the national right, or power, under the Constitution, to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to be unquestionable. * * * The situation of the United States, in ordinary times, might render legislative in

cknowledged principles of statutory construction, comprehend it in the other case as well. Nor in fact, the argument continued, does it make any difference, by approved principles of statutory construction, what purposes the framers of the Constitution may have immediately in mind when they gave Congress power to regulate commerce among the States; the governing consideration is that they gave Congre

ere

adoption by it of a regime of State regulation in the form of statutes (e.g., pilotage) or of administrative regulations in some degree (as in the Motor Carrier Act of 1935); or Congress may "regulate" through the device of divestment of a subject matter of its interstate character, thus indirectly causing State laws to appl

23 Sta

32 Sta

33 Sta

33 Sta

37 Sta

39 Sta

e also United States v. DeWitt, 9 Wall. 41 (1870). Of the nature of

s (The Lottery Case),

28 Sta

3 U.S. 1

s (The Lottery Case),

heat. 1,

U.S. 622,

0); 37 Stat. 699 (1913)

Stat. 1

84 (1929), "The H

825 (1910), "

Stat. 3

Stat. 3

Stat. 7

Stat. 9

Stat. 6

to the case of transportation of a woman for immoral purposes, although no commercial motive was present; and in Cleveland v. Unit

s v. Hill, 248 U.S

7 U.S. 2

Stat. 6

47 U.S.

Ibid.

7 U.S. 4

Stat. 3

Kentucky Whip & Collar Co. v. Illi

v. Darby, 312 U.S.

. Walling, 326 U.S

944). Cf. the opinion of Chief Justice Vinson for the Cour

deralist

at. 1, 11,

rs and Other Writings, 1

Wheat.

Wheat. a

. at 13-14; a

Wheat. 1

Wheat. 41

How. 29

f State legislation affecting commerce, not the validity of Congressional legislation regulating commerce. Clark Distilling Co. v.

. Shepard, 230

Ibid.

er point, see especially Chapters X and XII. The late Chief Justice Stone took repeated occasion to stress the "balancing" and "adjusting" role of the Court when applying the commerce clause in relation to State power. See his words in South Carolina State Highway Dept. v. Barnwell Bros., 303 U.S. 177

Wheat. 41

Evatt, 324 U.S. 652 (1945). In the latter case the benefits of the original package doctrine were extended to impo

Hewit, 329 U.S.

v. Pennsylvania (State Freight

gislation by Congress. Surely transportation of passengers or merchandise through a State, or from one State to another, is of this nature. It is of national importance that over that subject there should be but one regulating power, for if one State can directly tax persons or property passing through it, or tax them

6 U.S. 5

Ibid

omas Colliery Co.,

2 U.S. 1

Diamond Match Co. v. Ont

facturing Co. v. St. Louis, 250 U.S. 459 (1919) in which there was imposed a li

6 U.S. 1

sas-Louisiana Pipe Line

Witsell, 334 U

very was made. It was held that the transaction was in interstate commerce, notwithstanding the contract was made and to be performed in Kentucky; and that the possibility that the purchaser might change its mind after delivery and sell the grains in Kentucky or consign it to some other place in that State did not affect the essential character of the

ne Co. v. Hallanan,

as Co. v. Hallanan,

ors in the State natural gas piped in from another State, whose only activity was the use of a thermometer and meter and reduction of pressure to permit vendee to draw off the gas. "The wo

Wheat. 41

Ibid

Wall. 12

Ibid

also Pittsburgh & S. Coal Co.

4 U.S. a

Ibid

v. Covington, 2

e, 171 U.S. 345 (1898); Red "C" Oil Mfg. Co. v. Board of Agriculture, 222 U.S. 380 (19

ontinental Oil Co., 252 U.S. 444 (1920); Bowman v. Continental Oil

506 (1923). Reviewing cases. Cf. Phipps v.

pp. 178,

nc. v. South Carolina Tax Comm

(1916), and Pitney v. Washington, 240 U.S. 387 (1916) upholding a Washington statute imposing a

(1895); Singer Sewing Machine Co. v. Brickell, 233 U.S. 304 (1914); Wagner v. City

ee also Armour Packing Co.

; see also Ward v. Maryl

881); Walling v. Michigan, 116 U.S. 446 (1886); Darnell & Son Co. v. Memphis, 208 U.S. 113 (1908), where was held void a property tax on lumber which discriminated in favor of the local product: Bethlehem Motor Co

Errol, 116 U.

Ibid

Co. v. Crain, 20

U.S. 504 (1913); Susquehanna Coal Co. v. South Amboy, 228 U.S. 665 (1913); Minnesota

St. L.R. Co. v. Wallac

the sale of gasoline for use by an air transport line in conducting interstate transportation a

ic Co. v. Gallagher,

& Telegraph Co. v. Galla

167 (1939), as formulated in the headnotes; see al

purchased in Illinois and used in an Illinois-Kentucky ferry could not be taxed by Kentucky, being, as it were, a part of the ferry, an instrument of commerce between the two States. See also Kelle

0 U.S. 4

e, 153 U.S. 289 (1894); Stockard v. Morgan, 185 U.S. 27 (1902); Crenshaw v. Arkansas, 227 U.S. 389 (1913); Rogers v. Arkansas, 227 U.S. 401 (1913); St

North Carolina, 18

R. Co. v. Sims, 19

(1906); Dozier v. Alabama, 218 U.S. 124 (1

03 U.S.

ry Mills v. Portland,

ess done by a corporation through orders which were approved in a State where its tangible property and offices were loca

County Taxing District

ardon, 204 U.S. 152 (1907); Cf. Na

U.S. 405 (1908). See also Brodnax

2 U.S. 2

3 U.S. 1

rior Oil v. Mississippi ex re

v. Greenwood, 291

94 U.S. 169, 173 (1935); see also Min

9 U.S. 3

. Maxwell. 311 U.S

on all spiritous liquors brought into the State. Comparing the tax with a similar one imposed upon liquors manufact

ings being equal, there is little difference between a tax on receiving and a tax on possession a moment later. 305 U.S. 380 (1939). In Felt & Tarrant Manufacturing Co. v. Gallagher, 306 U.S. 62 (1939), a California use tax was upheld applicable to a nonresident corporation which solicited orders from California purchasers through agents for whom it hired offices in the State and took orders subject to the vendor's approval. In Nelson v. Sears, Roebuck & Company and Nelson v. Montgomery Ward & Company, 312 U.S. 359 and 373 (1941) it was held that a foreign corporation which maintained retail stores in Iowa could be validly required to collect an Iowa use tax in

9 U.S. 3

Ibid.

and Wagner v. Covington, 251 U.S. 95 (1919). In the first it was held that the Robbins case did not apply to a firm of agents and

9 U.S. 7

Ibid

2 U.S. 3

Ibid

Ibid

7 U.S. 4

Ibid.

Ibid

Laundry v. Stone,

. 534 (1951), although decided by a closely d

at. 1, 217-

er (Passenger Cases

U.S. 259 (1876); New York v. Compagnie Gé

Wall. 35

Ibid

4 U.S. 1

Ibid

ecision in which represents the exact inverse of that in the Crandall Case, being based by the majority on the commerce clau

ight Tax Case, 15 Wall. 232 (1873) and Pensacola Telegraph Co. v. Western Uni

Wall. 16

Ibid

Ibid

232, 233-234,

7 U.S. 6

Ibid

v. Kentucky, 14

Ibid

6 U.S. 5

. v. Hinkle, 278 U.S. 460 (1929). Cf., however, Western

ate Sales Corp. v. Alaba

tates Telephone & Telegrap

on v. State Tax Commission

g Co. v. Tax Commission of W

Co. v. Storen, 30

rchased in Illinois and used in an Illinois-Kentucky ferry, Helson & Randolph v. Kentucky, 279 U.S. 245 (1929); tax laid on privilege of operating a bus in interstate commerce because not imposed solely as compensation for use of highways or to defray expenses of regulating motor traffic, Interstate Transit, Inc. v. Lindsey, 283 U.S. 183 (1931); tax on gas pipe line whose only activity in State was the use of a thermometer and reduction of pressure to permit a vendee to draw off gas, State Tax Commission v. Interstate Natural Gas Co., 284 U.S. 41 (1931)-but see East Ohio Gas Co. v. Tax Commission, 283 U.S. 465 (1931); gasoline tax imposed per gallon of gasoline imported by interstate carriers as fuel for use in their vehicles within the State as well as in their interstate

420 (1903); and in Allen v. Pullman's Palace Car Co., 191 U.S. 171 (1903). Here State taxes levied on the local business of companies engag

(1910); Ludwig v. Western Union Teleg. Co., 216 U.S. 146 (1910);

n the third because the amount collected under the act was held to be "reasonable." The ideology of these decisions is clearly opposed to that of the cases treated in the text. The rule in Looney v. Crane Co. was held not applicable in the case of a West Virginia corporation doing business in Illinois and owning practically all of its propert

tts, 246 U.S. 146 (1918); Cheney Brothers Co. v. Massachusetts, 246 U.S. 14

46 U.S.

7 U.S. 1

Ibid

4 U.S. 3

7 U.S. 4

d. 415. H

ugusta v. Earle, 13 Pet. 519 (1839); and Security

); Coverdale v. Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938); Ford Motor Co. v. Beauchamp, 308 U.S. 331 (1939); Treasury of Indiana v. Wood Corp., 313 U.S. 62 (1941); Whee

v. Pennsylvania (State Freight

Co. v. Benjamin, 328

Wheat. 41

.R. Co. v. Pennsylvani

ail S.S. Co. v. Pennsylva

l. Co. v. Massachusett

Ibid

o. v. Peniston, 18 W

Car Co. v. Pennsylvan

Ibid

; upon rehearing 1

66 U.S.

7, 225, 227 (1908). See also Cudahy Packing Co. v. Minnesota 246 U.S. 450 (1918); and Pullman Co.

Car Co. v. Pennsylvan

kus, 154 U.S. 421 (1894); Cleveland, C.C. &

63 U.S. 1 (1896). See also Western Union Tel

io, 165 U.S. 194 (1897), upon

ailway Co. v. Minnesot

t. L. Railway v. Browni

249 U.S. 275 (1919); Wallace v. Hines, 253 U.S. 66 (1

98 U.S. 553 (1936). Cf. Alpha Portland Cemen

2 U.S. 2

Ibid.

v. Port of Mobile, 127 U.S. 640 (1888); Crutcher v. Kentucky, 141 U.S. 47 (18

burg & S.A.R. Co. v. Te

Ibid

, 309 U.S. 157 (1940), in which was sustained a five percent gross earnings tax on all railroads operating in the

Co. v. State Bd. of Taxes & As

Gretton v. State Tax Co

297 U.S. 441 (1936). See also Internationa

o. v. Beauchamp, 3

arvester Co. v. Evatt

g & San Antonio R. Co. v.

v. Hines, 253

l Pipe Line Co. v. Stone, 337 U.S. 662 (1949)

gan Ry. v. Powers, 191 U.S. 379 (1903); United States Express Co. v. Minnesota, 223 U.S. 335

innesota, 223 U.S. 335 (1912); Dept. of Treasury of Indiana v. Wood Corp., 313 U.S. 62 (1941); Dept. of Tre

ck v. Bureau of Revenu

o & Co., 223 U.S. 298 (191

g. Co. v. Alabama Board of Assessment (Seay), 132 U.S. 472 (1889); Adams Mfg. Co. v. Storen, 304 U.S. 307 (1938); Gwin, White & Prince v. Henneford, 305 U

ut Cf. Nashville, C. and St. L. Ry. v. Browning, 310 U.S. 362 (1940). In both the Galveston and New Jersey Telephone Company cases, although the taxable events all occurred within the taxing State, the possibility of multiple taxation was nevertheless present. See also

omm., 297 U.S. 650 (1936); Western Live Sto

See

ee pp.

See

3 U.S. 2

Ibid

Ibid.

5 U.S. 4

Ibid.

U.S. at

e Greyhound Lines, Inc., 30

v. Hewit, 329

329 U.

Mfg. Co. v. Storen, 304 U.S. 307 (1938) in wh

sale had been local, and that the only interstate agency employed had been the mails, an argument which squares bad

rming Puget Sound Stevedoring Co.

30 U.S.

from foreign commerce. Speaking for them, Justice Douglas made an effort to resurrect M

334 U.

eau of Revenue, 303 U.S. 250 (1938); and Ratterma

335 U.

S. 662, 666,

upra, pp. 1

7 U.S. 3

Ibid.

v. Carter, 252

254 U.S. 113 (1920); Bass, Ratcliff & Gretton

Court observed: "The difficulty of making an exact apportionment is apparent and hence, when the State has adopted a method not intrinsically arbitrary, it will be sustained until proof is offered of an unreasonable and arbitrary application in particular cases." The decisions

t Line v. Daughton,

See also Butler Bros. v. McColgan, 315 U.S. 501 (1942), w

Co. v. Beeler, 3

Ibid.

Service v. O'Connor,

4 U.S. 1

fic Mail S.S. Co.,

0 (1877); see also Transportation Co.

or a résumé of the rules for taxing vessels see Northwest A

): a vessel enrolled in New York at domicile of owner, but

6 U.S. 1

lines v. Minnesota,

the railroad was outside of New York throughout the tax year, New York was nevertheless allowed to tax it all because no part was in any othe

2 U.S. a

e commerce. It is a practical, but rather illogical, device to prevent duplication of tax burdens on vehicles in transit. It is established in our decisions and has been fo

Ibid

Car Co. v. Pennsylvan

322 U.

5 U.S. 6

Ibid

. Maryland, 235

ew Jersey, 242

Bingaman, 298

. Morf, 300 U.

.S. 554 (1927); Hicklin v.

t, 276 U.S. 245 (1928); Continental Baki

Co. v. Georgia Pub. Serv. Com

y, 283 U.S. 183 (1931). Cf. Sprout

n the State, with an annual minimum of $15 per vehicle, in consideration of the use of the highways and in addition to all other motor vehicle license fees and taxes. This was held, as applied to a carrier engaged solely in interstate commerce, not to burden such commerce unconstitutionally, although the proceeds went into the State's general fund subject to appropriation for other than highway purposes. (Opinion by Rutledge, J., all concurring.) While

9 U.S. 5

Ibid

in Great Northern R. Co. v. Washin

S. 386 (1892); New York ex rel. New York Electri

ia, 190 U.S. 160 (1903); Mackay Teleg. & Cab

, 187 U.S. 419, 425 (1903); Pure Oil Co

5 (1906). Cf. Red "C" Oil Mfg. Co. v. Board of Agriculture, 222 U.S. 3

tal Teleg. & Cable Co. v. Taylor, 192 U.S. 64 (1904)

164 (1903); Postal Teleg. Cable Co. v. Taylor, 192 U.S. 64, 69

32 U.S. 494, 505 (1914); Lugo v

e, 187 U.S. 419, 425 (1903); Foote & C

Hope, 192 U.S. 55 (1904); Foote & Co.

Pennsylvania v. Wheeling & Belmon

eeling & Belmont Bridge

o. v. Parkersburg, 107

2 U.S. 5

Stat. 3

8 U.S. 4

d. 429-43

ee pp.

Wheat. 1

Ibid

Wheat. 41

Ibid.

12 Wheat.

Pet. 10

er (Passenger Cases

v. New York, 92

Ibid

v. Freeman, 92

380, 398, (1902). See also Morgan's L. & T.R.S.S. Co. v. Bd. of Hea

U.S. 31, 3

es of enforcement, see also Bayside Fish Flour Co. v. Gentry, 2

U.S. 761

Highway Dept. v. Barnwell Bros., 303 U.S. 177, 187 (1938), et seq.; California v. Thompson, 3

olina Highway Dept. v. Barnwell Bros., 303 U.S. at 185; California v. Thompson, 313 U.S. at

ed; Lone Star Gas Co. v. Texas, 304 U.S. 224, 238 (1938); Milk Board v. Eisenberg Co., 306 U.S. 346, 351 (19

(1851); Leisy v. Hardin, 135 U.S. 100, 108, 109 (1890); Minnesota Rate Cases,

230 U.S. at 399, 400; Pennsylvania v. West Virginia, 262 U.S. 553, 596 (1923); Baldwin v. Seelig,

W.R. Co., 125 U.S. 465, 481, 482 (1888); Leisy v. Hardin, 135 U.S. at 109; In re Rahrer, 140 U.S. 545, 559, 560 (1891); Brennan v. Titusville, 153 U.S. 289, 302 (1894); Covington & C.

rhood, 318 U.S. 1, 8 (1943); see Di Santo v. Pennsylvania, 273 U.S. 34, 44 (1927) (and compare California

Co. v. Covington, 235 U.S. 537, 546 (1915); Missouri, K. & T.R. Co. v. Texas, 245 U.S. 484, 488 (1918); St. Louis & S.F.R. Co. v. Public Service Comm'n., 254 U.S. 535, 537 (1

xpress Co., 241 U.S. 48, 50, 51 (1916); Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 325, 326 (1917); Whitfield v. Ohio, 297 U.S. 431, 43

. v. United States, 234 U.S. 342 (1914); American Express Co. v. Caldwell, 244 U.S. 617, 626 (1917); Illinois Central R. Co. v. Public Utilities Comm'n., 245 U.S. 493, 506 (1918); New York v.

Gwin, White & Prince v. Henne

ad Assn. v. Brotherhood, 318 U.S. 1, 8 (1943);

ago & N.W.R. Co.,

& P.R. Co. v. Illinoi

Stat. 3

om. v. Chicago, B. & Q.R.R

io statute requiring that "each company shall cause three, each way, of its regular trains carrying passengers, * * * Sundays excepted, to stop at

R.R. Co. v. Illinois, 1

. Com., 237 U.S. 220, 226 (1915); St. Louis & San Francisco

co R. Co. v. Public Service C

a & Pacific R.R. v. Jacob

v. Larabee Flour Mills C

outhern R. Co., 20

R. Co. v. Arkansas,

. Co. v. New York, 165 U.S. 628, 631 (1897); Lake Shore & M.S.R. Co. v. Ohio ex rel. Lawrence, 173 U.S. 285, 292 (1899

. L.R. Co. v. Alabama, 128 U.S. 96 (1888); McCall v. California, 136 U.S

165 U.S. 628 (1807). See also Chicago, M. & S

orasch, 177 U.

Public Utility Commrs

.F.R. Co. v. R.R. Comm

P.R. Co. v. Arkansas

& S. Co. v. Arkansas, 240 U.S. 518 (1916); Mi

ad Assn. v. Brotherho

at the cars be kept clean and ventilated and fumigated. However, provisions of the ordinance that cars shall never be permitted to fall below a certain temperature and regulating the number of passengers to be carried in the cars were held to be unreasonable and v

169 U.S. 133 (1898); Richmond & A.R. Co. v.

.S. 761, 77

Co. v. Kaw Valley Drainage D

4 U.S. 3

0), where the crossings were fewer and the burden to

U.S. 1,

U.S. 761

S. 373, 380,

35 U.S. 610 (1915); Kane v. N

U.S. 374 (1932). See also Morr

ighway Dept. v. Barnwell Bro

9 U.S. 9

9 U.S. 5

6 U.S. 7

issouri, 306 U.S. 268 (1939), citing Coole

s Agency v. New York

idea by a narrowly divided Court, in a quite special sit

S. 352 (1932); Stephenson v. Binford, 287 U.S. 2

(1925). See also Smith v. Cahoon, 283 U.S. 553 (1931); an

Bush & Sons Co. v. Maloy, 267 U.S. 317 (1925); Interstate

In the former case, agents soliciting patronage for steamship lines were invol

Thompson, 313 U.S.

Wheat. 1

et. 245,

How. 29

Sinnot v. Davenport, 22 How. 227 (1859). See

Wardens of Port of New Or

Ibid

79); Willamette Iron Bridge Co. v. Hatch, 125 U.S. 1 (1888)

Power Co. v. United Stat

Chicago, 147 U.S

2 U.S. 1

Ibid

3 U.S. 2

De Cuir, 95 U.

Pet. 245

59 (1878); Lindsay & Phelps Co.

Wall. 71

Co. v. Chicago, 107 U.S. 678 (1883); and Cardwell

9 U.S. 5

Ibid.

.S. 80 (1877); Ouachita Packet C

894). See also Sands v. Manistee R. Imp. Co., 123

; Parkersburg & O. Transp. Co. v.

6, 215 (1885); Conway v. Taylor, 1 Black 603 (1862); Wi

v. McNeely, 274 U.S. 676 (1927). See also H

Bridge Co. v. Kentuck

oint Ferry Co. v. Bd. of Chosen

.R. Co. v. Bd. of Chosen Fre

sp. Co. v. R.R. Com.,

eg. Co. v. Pendleton

leg. Co. v. Foster,

leg. Co. v. Crovo,

o. v. Commercial Milling

leg. Co. v. Brown,

England Teleg. Co.,

Co. v. Western U. Teleg

224 U.S. 160 (1912). See also Postal Teleg

eph. Co. v. Nebraska State

ennsylvania Public Util.

rett v. Kansas Natural Gas

v. Attleboro Steam & Elect

c Serv. Com., 252 U.S. 23 (1920); Public Ut

e Lines Co. v. Public Serv.

v. Michigan Comm'n.,

s Co. v. Public Serv. Co

o. v. Tax Com. of Ohi

Co. v. Public Serv. Com. of

s Co. v. Dept. of Public Ut

s Co. v. Texas, 30

Co. v. Peerless Co.

nal Harvester Co. v. Kentucky, 234 U.S. 579 (1914); Sioux Remedy Co. v. Cope,

2 U.S. a

y Co. v. Cope, 23

ing Co. v. Columbia T. C

eline Co. v. Slattery

O'Malley, 219 U

also Hall v. Geiger-Jones Co., 242 U.S. 539 (1917); Cald

v. Minnesota, 180 U.S. 452, 470 (1901); Simpson v. Shepard (Minnesota Rate Case), 230 U.S. 352, 410 (1913); Ha

and, C.C. & St. L. Co

. West, 222 U.

bago," 205 U.S.

in Minnesota Rate Cases (Simpson v.

Ibid

o. v. Husen, 95

v. Ball, 129 U

Louis & S.W.R. Co.,

Co. v. Louisiana Bd. of Healt

v. Shaw, 248

ion Co. v. Sherman,

Baldwin, 289

ox & Basket Co. v. Whi

lour Co. v. Gentry,

Dairy, Inc. v. Agnew,

nc. v. Chapman, 3

Indiana, 306 U

v. Eisenberg Farm Produ

Co. v. North Carolina

1912); followed in Corn Products Refi

. v. Minnesota, 2

Corp. v. Hodges, 2

U.S. 313 (1890); see also Brimm

at 322. See a

. Wright, 141

co Trading Co., 3

o. v. Madison, 34

Wheat. 41

Ibid

389 (1919); Askren v. Continental Oil Co., 252 U.S. 444 (1920); Bowman v. Continental Oil Co., 256 U.S. 642 (1921) and Texas Co. v. Brown, 258 U.S. 466 (1922). These cases were "qualif

. Kansas, 123

Pearson, 128

5 U.S. 4

. v. Hardin, 135

); sustained in In re Ra

. Iowa, 170 U.

d in Clark Distilling Co. v. Wester

Tennessee, 179

5 U.S. 4

5 U.S. 1

55 U.S.

er v. Pennsylvania

New Hampshire, 17

ee note

Co. v. McKittrick, 305 U.S. 395 (1939); Brewing Co. v. Liquor Comm'

referred to rest the decision on the Twenty-first Amendment instead of "what I regard as an unwise extension of State power over in

7 U.S. 4

Stat 10

ice Cardozo's remarks in Baldwin v.

1894); Savage v. Jones, 225 U.S. 501 (1912); Corn

liesseline, 8 Fed.

ee 2 Charles Warren, The Supreme Co

p. Atty.

p. Atty.

Pet. 10

er (Passenger Cases

v. Nevada, 6

4 U.S. 1

Ibid

, 294 U.S. 511, 523 (1935). Justice Byrnes' answer to another argument of the State, based on

tice Douglas' forceful o

1 U.S. 5

ater Co. v. McCarter,

1 U.S. 2

Ibid.

2 U.S. 5

7 U.S. 5

Ibid

U.S. 50,

50 (1922); 66 L

ee pp.

lowed in Hegeman Farms Corp. v

4 U.S. 5

v. Eisenberg Farm Produ

Ibid

Mond, 336 U.S.

Packing Co. v. Hayde

Ibid

ther features of the South Carolina act were fo

lour Co. v. Gentry,

g Silz v. Hesterberg,

Stat. 5

R. Co. v. United State

S. 424 (1912); Southern R. Co. v. Bur

o. v. Hardwick Farmers Eleva

& S.R. Co. v. Edward

U.S. 1 (1913). In this case the severity of the regul

e enactment of the Carmack Amendment the Court had held that the imposition by a State upon the initial or any connecting carrier of the duty of tracing the freight and informing the shipper in writing when, where, how, and by which carrier the freight was lost, damaged, or destroyed, and of giving the names of the parties and their officia

65 (1908); 36 S

Stat. 141

531 (1893); 32

Employers' Liability Cases), 223 U.S. 1 (1912); So

v. New York, 233

Stat. 4

v. Lurman, 192

& Texas Ry. Co. v. Haber, 169 U.S. 613 (1898); Reid v. Colorado, 187 U.S. 137 (1902); A

v. Wisconsin, 22

Ibid

v. North Dakota,

15 (1912); 39 St

R. & Nav. Co. v. Washing

Stat. 2

Baldwin, 289

91 (1903); 33 St

v. Yeomans, 301

Stat. 73

v. Employment Relations B

Stat. 44

tlantic Coast Line R. Co.,

v. Brown, 317

Stat. 24

317 U.S

] Ibi

age Co. v. Jensen,

] Ibi

Serv. Com. of Indiana, 332 U.S. 507 (1947); Ric

Stat. 82

Stat. 14

43 (1935); 54 Sta

ia v. Zook, 336

Stat. 82

. v. Public Service Co

U.S.C.A. §

stice Stone dissented, on the basis of Mintz v. Baldwin, 289 U.S. 346 (1933); Kelly v. Washi

(1916); amended by 4

Fe Elevator Corp.,

ee note

Gas Co. v. Federal Power

49 U.S.

v. United States, 3

ine R. Co. v. Daniel,

Florida, 325

Stat. 44

325 U.S

v. Wisconsin Board,

449 (1935); 61 S

Veneer Co. v. Wisconsin

339 U.S. 454 (1950); Bus Employees v

U.S. 375, 384 (1886); Cf. United Sta

at. 544, 566

tates v. Sandoval,

8 (1914); Johnson v. Gearlds, 234 U.S. 422 (191

1 U.S. 591 (1916), overruling Re

tes v. Sandoval,

s v. Holliday, 3 Wa

e Webb, 225 U.

ebraska, 143 U.S

0 How. 3

Ibid. 4

v. Hare, 239 U.S.

Public Law 414, 82d C

ening clause of Amendment XIV, which embodies Chief Justice Marshall's holding in Gassies v. Ballon, that a citi

lization. "Instances of collective naturalization by treaty or by statute are numerous."

57 St

at. 163, tit

id. § 313

Ibid. §

was held, by a divided Court, that clauses (3) and (4) of the oath, as previously prescribed, required the candidate for naturalization to

; see also Johannessen v. Unit

U.S. 118 (1943); Baumgartner v. United States 322 U.S. 665 (1944), where district court decisions ordering cancellation were reversed on the ground

f the United States, 9

8 U.S. 65

] Ibi

225 U.S. 227 (1912) and Knauer v. Uni

t. 163, tit.

en who takes land by grant or by location on public land relates back and obviates every consequence of his alien disability (Manuel v. Wulff, 152 U.S. 505, 511 (1894); Doe ex dem. Governeur's Heirs v. Robertson, 11 Wheat. 332, 350 (1826)). A certif

Chirac, 2 Wheat

t was also held that Congress may provide for the punishment o

Ill. 377 (1840); Stewart v. Fos

Dupont, 3 Pet.

at. 223; 8 U

a foreign State, for which only nationals of that State are eligible; (5) Voting in an election or participating in a plebiscite in a foreign State; (6) Formal renunciation of citizenship before an American foreign service officer abroad; (7) Conviction and discharge from the armed services for desertion in time of war; (8) Conviction of treason or an attempt at forceful overthrow of the United States; (9) Formal renunciation of citizenship within the United States in time of war, subject to approval by the Attorney General; (10) Fleeing or remaining outside the United States in time of war

es, 149 U.S. 698, 705 (1893); Japanese Immigrant Case, 189 U.S. 86 (1903); Turner v. Williams, 194

at. 163; Tit

d. § 212 (

54 St

Davidowitz, 31

t. 163; Tit.

8 U.S. 53

59 St

338 U.S

v. Landon, 342

54 St

. Shaughnessy, 342

156 C was the prov

tes v. Spector, 3

United States, 21

nts of due process of law in the deport

Storey, 1 Fed. C

Stat. 1

entaries, II, 1113

6 U.S. 18

ank & Trust Co. v. Chicago, R.I. &

(1938), distinguishing Ashton v. Cameron Cou

with approval in Continental Illinois Nat. Bank & Trust

Bank & Trust Co. v. Chicago, R.I.

300 U.S. 440 (1937); Adair v. Bank o

Central Insurance Co.

4 U.S. 64

] Ibi

ck Land Bank v. Radford, 29

ement District, 298 U.S. 513 (1936). But see

t Co. v. 4136 Wilcox Bldg.

(1843); Hanover Nat. Bank v.

tes v. Bekins, 30

. 605 (1918); Hanover Nat. Bank v.

Bank v. Moyses, 186

Wheat. 122, 199 (1819); Ogden v.

.S. 201 (1886); Butler v. Gor

Crowninshield, 4

(1827); Denny v. Bennett, 128 U.S. 489, 498

1903); International Shoe Co. v.

hoe Co. v. Pinkus, 278

Feuerstein, 308

v. Clum, 245 U.S

. Mealey, 314

Irving Trust Co., 2

v. Maryland, 4

nk v. Fenno, 8 W

] Ibi

Bank v. United State

nited States, 294

l. 457, 549 (1871); Juilliard v.

nder Cases, 12

ltimore & O.R. Co.,

v. United States, 2

s v. Marigold, 9 Ho

. Ohio, 5 Ho

s v. Marigold, 9 Ho

5] I

v. Barnett, 255

gal Tender Cases), 12

ates, 9 Wheat. 738, 861 (1824); Farmers' & Mechanics' Nat. Bank v. Dearing, 91 U.S.

r Cases, 12 Wall.

ited States, 294 U

] Ibi

Railroad Bridge Co., Fed

v. Stokes, 3 How

1 U.S. 3

Jackson, 96 U.S.

v. Stokes, 3 How

s, 158 U.S. 5

ng. Globe 4

Bowman v. Chicago & N.W.R. Co., 125 U.S. 465 (1888) and Leisy v. Hardin, 135 U.S. 100 (1890) den

6 U.S. 7

] Ibi

94 U.S. 497 (1904), followed in Donaldso

194 U.S

ng Co. v. Morgan, 229

5 U.S. 40

Esquire, Inc., 327

812, 813 (1935), 15 U

Co. v. Securities and Exchang

] Ibi

Co. v. Western U. Tele

v. Illinois ex rel. But

. Minnesota, 166

113 U.S. 218 (1885); Martin v. Pittsb

l Assn. v. Corsi,

ates v. Kirby, 7

v. Maryland, 25

Dialogue, 2 Pet.

Peters, 8 Pet. 591

859); Great Atlantic & Pacific Tea Co. v. Sup

an, 14 How. 539, 548 (1852); Bloomer v. Millinger, 1 Wall.

Duchesne, 19 How

. Union Paper Collar Co. v. Van Dusen, 23 Wall. 530, 56

Nichols, 21 Wall

all. 498, 507 (1874); Clark Thread Co. v. Wi

). Cf. Dow Chemical Co. v. Halliburton Co., 324 U.S. 320 (1945)

Corp., 325 U.S. 327 (1945); Marconi Wireless

.S. 139 (1894); Diamond Rubber Co. v. Co

that an article is new and useful. The Constitution never sanctioned the patenting of gadgets. Patents serve a higher end-the advancement of science. An invention need not be as startling as an atomic bomb to be patentable. But it

ds rather to obstruct than to stimulate invention. It creates a class of speculative schemers who make it their business to watch the advancing wave of improvement, and gather its foam in the form of patented monopolies, which enable them to lay a heavy tax upon the industry of the country, without contr

ive agencies, has looked with favor on the opportunity which the exercise of discretion affords to expand its own jurisdiction. And so it has placed a host of gadgets under the armour of patents-gadg

made of clay rather than metal or wood, where differ

0 Wall. 498 (1874): Rubber caps put

30 (1875): Making collars of parchment paper whe

reserving fish by freezing them in a container ope

Inserting a piece of rubber in a slot in the

thread placed across open squares in a regular

rs Mfg. Co., 109 U.S. 117 (1883): Pu

5): A stamp for impressing initial

se reel of large diameter so that water may f

U.S. 370 (1888): Putting rollers

ick, 135 U.S. 227 (189

. 56 (1890): Using flat cord instead of roun

37 U.S. 64 (1890): Putting

(1891): A shirt bosom or dickie

(1891): A lantern lid fastened to the lantern

891): Bridging a strip of cloth across the fly

, 144 U.S. 238 (1892): Placing rubb

1893): Applying the principle o

r Co., 152 U.S. 425 (1894): An oval rather than cylindr

lope flap which could be fastened to the envelope in such

at a patent as flimsy and as spurious as this one has to be brought all the way to this Court to be declared invalid dramatically il

stice Brown in Potts v. Creager, 155 U.S. 597, 607 (1895); "Inventive genius"-Justice Stone in Concrete Appliances Co. v. Gomery, 269 U.S. 177, 185 (1925); "Inventive genius"-Justice Roberts in Mantle Lamp Co. v.

ee Note

permarket Equipment Corp., 340 U.S. 147 (1950

Eaton, 3 Wheat.

.S. 576, 586-589 (1899). See also Bu

). Cf. E. Burke Inlow, The Patent Clause (1950) Chaps. III and IV, for evidence of a

Pet. 591, 662 (1834); Evans

v. Harper Bros. 2

Selden, 101 U.S.

v. Gladding, 17

Murray, 105 U

1871); Cammeyer v. Newton, 94 U.S. 225, 234 (1877); Hollister v. Benedict Manufacturing Co., 113 U.S. 59

Kingsland, 1 How

McQuewan, 14 How

United States v. Masonite Corp., 316 U.S. 265 (1942); and United States v. New Wrinkle, Inc., 342 U.S. 371 (1952), where the Jus

v. Kentucky, 97

s & Sons v. Carl, 203 U.S. 358 (1906); Ozan Lumb

80 U.S. 123 (1932)-overruling Lon

00 U.S.

] Ibi

thographic Co. v. Saro

ldson Lithographing Co.,

mentaries, 1-2,

ental Congress 315, 361 (1912). X

Artic

the Constitutional Conventi

bid. 185

0). See also The Marianna Flora, 11 Wheat. 1, 40-41 (1826)

7 U.S. 1,

] Ibi

v. Arjona, 120 U.S.

es v. Flores, 3 F.

.S. 137, 149

s v. Furlong, 5 Whe

e Federal

w v. Doane, 3 D

Wheat. 31

407. Emphas

inion); see also Miller v. United States, 11 Wall. 268, 305 (1

e, 37th Cong., 1st s

v. Dillin, 21 Wa

o. v. North Dakota, 25

an Assoc. v. Blaisdell

o. v. North Dakota, 25

9 U.S. 30

Ibid. 3

4 U.S. 74

Ibid. 7

] Ibi

of the Constitutional Conv

] Ibi

als of Congre

, VII, 746 (Hamilton's ed. 1851).

29, 130 (1802).

e Cases, 2 Bl.

Ibid. 6

Wall. 70

] Ibi

Commentaries 263, (

Commentaries, § 1

Atty. Gen. 1

. Atty. Gen.

Stat. 40

298, 80th Cong.

es, 245 U.S. 366, 380 (1918);

245 U.S

was upheld by a State court, Kne

t Law Cases, 245 U.S.

Perry, 240 U.S.

5 U.S. 36

] Ibi

1937). See also In re Grimley, 137 U.S. 147, 15

Wissner, 338 U.S

United States, 24

Hoover, 20 How

. 2, 123, 138-139 (1866). Ex par

unter, 336 U.S.

Hoover, 20 How

3 (1897); Carter v. Roberts, 177 U.S. 496

(1909); Smith v. Whitney, 116 U.S. 167, 177

gislation Passed Prior to

] Ibi

250, 332, 3

823. Many of these were soon suspended

d. 482, 54

] Ibi

] Ibi

Griswold, 8 Wall

] Ibi

gal Tender Cases), 12

Stat. 27

] Ibi

] Ibi

bid. 451

] Ibi

Stat. 23

Stat. 17

] Ibi

Stat. 16

States v. Bethlehem Steel Corp., 315 U.S. 289, 305 (1942); Clallam County v. United State

nited States, 334 U

U.S. 366,

ited States, 321 U

1 Wall.

ited States v. Chemical Fo

20 U.S.

bid. 91-

] Ibi

4 U.S. 74

Ibid. 7

Ibid. 7

s on the Constitution, I

7 U.S. 28

Stat. 16

.S. 288, 327

Stat. 75

493, 507 (1871). See also Mayfiel

919). See also Ruppert v. C

. Hirsh, 256 U

orp. v. Sinclair, 2

also Fleming v. Mohawk Wrecking

.S. 138, 143

Watkins, 335 U.S

0 U.S. 15

] Ibi

Wall. 2

] Ibi

Ibid. 1

7 U.S. 30

See also Conrad v. Waples

United States, 11

S. 554 (1921); United States v. Chemical Foundation, 272 U.S. 1 (1926); Silesian-America

iren," 13 Wal

pton," 5 Wall.

Habana," 175 U.S.

irsh, 256 U.S. 13

illingham, 321 U.S

] Ibi

55 U.S.

] Ibi

U.S. 211 (1919); Sugarman v. United States, 249 U.S. 182 (1919); Frohwerk v. U

(1917); amended by

49 U.S.

] Ibi

. Minnesota, 254

v. United States,

. United States, 3

e Endo, 323 U.

Stat. 5

mes Madison, VI, 360-

Stat. 53

5 U.S. 16

. Harmony, 13 How

Wall. 623,

0 U.S. 22

] Ibi

262, 43d Cong., 1st

l Laundry Co. v. United States, 338 U.S. 1 (1949); United States v. Cors, 337 U.S. 325 (1949); United States v. John J. Felin & Co., 3

. (Pa.) 169 (1817), affirmed in H

ll. 700 (1869); Tyler v. De

Stat. 4

. Mott, 12 Whea

Wheat. 1 (1820); Martin v

v. Moore, 5 Whe

ne 28, 1947 (61 Stat. 191, 192) the age of enlist

es v. Hammond, 1 C

Stat. 1

Stat. 1

Stat. 10

o. v. District of Columb

Columbia v. Bailey,

United States, 147 U

United States, 17

. v. Washington Airport, 283 U.S. 348 (1931); Maryland v. West Virginia, 217 U.S. 577 (1910); Marin

v. Payne, 92 U

Stat. 1

tes v. Simms, 1 C

Watkins, 7 Pet. 568 (1833); Stelle v. Carroll, 12 Pet. 201, 205 (1838); Van Ness v. Bank

Lamar, 2 Cr. 3

al Assur. Soc., 6 C

r. Soc. v. Watts,

. Winter, 1 Wheat. 91, 94 (1816). The District has been held to be a "State" within the terms of a treaty reg

1868); Hooe v. Jamieson, 166 U.S. 395 (18

o. v. Tidewater Transfer Co

Justice Jackson, with whom Just

f Justice Rutledge, with wh

S. 540 (1888); Capital Traction

es v. Moreland, 25

dkins v. Children's Hospital, 261 U.S. 525 (1923) overrul

v. United States, 147 U.S. 282, 300 (1893); Atlantic Cleaners & Dyers v. United Sta

Wheat. 26

] Ibi

ugh v. Blake, 5

umbia, 116 U.S. 404, 408 (1886);

at. 317, 320 (1820); Heald v. Distr

, 22 How. 422, 435 (1860); Stoutenburg

Wall. 676, 680 (1870); Briscoe

o. v. District of Columbia

strict of Columbia, 97

U.S. 141,

mac Electric Power Co

v. United States,

. Palmer, 107

Contracting Co., 302

United States, 20

otel Co. v. Fant,

Contracting Co, 302

semite Park Co., 304

] Ibi

908); Johnson v. Yellow Cab Co., 321 U.S. 383

ding Co. v. Cook,

1909); Arlington Hotel Co. v. Fant, 278 U.S. 439 (1929);

n, 114 U.S. 542, 545 (1885); James Stewar

. Barrett, 162

tes v. Unzeuta, 2

ited States, 146 U.

. Barrett, 162

v. Minnesota, 327

Ibid. 5

(1885); United States v. Unzeuta, 281 U.S. 138, 142 (193

v. Cornell, 25 Fed. C

Contracting Co., 302

shington, 302 U.S. 186 (1937). See also Atkins

Wheat. 31

riority to claims of the United States against the estate of a bankrupt he wrote: "The government is to pay the debt of the Union, and must be authorized to use the means which appear to

e pp. 74-

109, 121 (1901). See also Missour

ee p. 42

Hoboken Land & Improvement

U.S. 367, 373 (1876); United Slat

pp. 110-1

ulloch v. Maryland, 4 Wheat. 316 (1819). That this power has been freely exercised is attested by the 180 pages of the United States Code (1950 ed.) devoted

e Carll, 106 U

s v. Marigold, 9 Ho

nited States, 144

tes v. Barnow, 23

; In re Quarles, 158 U.S. 532, 537 (1895); Motes v. United States, 178 U.S. 458 (1900); Unit

e Curtis, 106

tion Act of 1940, 54 Stat

. Maryland, 4 Whea

9 Wheat. 738, 862 (1824). See also Pittman v

Union Trust Co., 244 U.S. 416 (1917); Burn

City Title and Trust Co

. Greenman, 110 U.

nk v. Fenno, 8 W

U.S. 421 (1884). See also Legal

imore & O.R. Co., 294

R. Co. v. Myers), 115 U.S. 1, 18 (1885); Califo

th River Bridge Co.,

y v. United States,

ral Expenditures reported that there were then in existence one hundred government corporations, including subsidiaries and quasi-private

v. Massachusetts, 12

v. Davis, 100 U.S

stern R. Co. v. Whitton,

. Palmer, 107

States v. Halstead, 10

. Co. v. Kountze Bros.,

elite Corp., 279 U.

See Sinclair v. United S

er Co. v. Marshall,

nited States, 32

pany v. The "Thomas Bari

art, 253 U.S. 149 (1920); Washington

); Morgan's L. & T.R. & S.S. Co. v. Louisian

135 (1877); Johnson v. Chicago & P.

How. 393,

v. Lapeyre, 242

Stat. 73,

Watkins, 3 Pet.

Bollman, 4 Cr.

ohnston, 334 U.S.

es v. Smith, 331 U

Schilder, 339

Mangum, 237 U.S.

Stat. 73,

et. 193, 202 (1830); Ex part

Stat. 38

Mangum, 237 U.S.

te Bollman, 4

. 269, 274 (1942); Glasgow v. Moyer, 225 U.S. 420, 42

States ex rel. McCann,

2 U.S. 275 (1941); Waley v. J

Milligan, 4 Wall

v. Hill, 293

. Lane, 265 U

v. Loisel, 265

United States, 26

ohnston, 334 U.S.

sident, Office and Pow

Bollman, 4 Cr.

apers of the Presiden

Cas. No. 9

Atty. Gen. 74,

Stat. 75

Wall. 2

] Ibi

s on the Constitution, II

. Missouri, 4 Wal

s v. Lovett, 328 U.

Garland, 4 Wall.

tes v. Lovett, 32

ntaries on the Cons

all. 386,

Co. v. Blodgett, 260

v. Salmon, 97 U

8); Ex parte Garland, 4 Wall. 333, 377 (1867

tes v. Powers, 30

7 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy); Hirota v. Mac

e Garland, 4 W

v. Ramsey, 114

.S. 32 (1924); Bugajewitz v

v. United States, 2

ted States, 138 U.

. Bull, 3 Dall.

Utah, 110 U.S.

U.S. 429,

nstitutional Convention,

Dall. 1

in the British statutes, it will be found to include the duty on carriages, which is there considered as an e

son's Writings, 14, (Library of Congress ed., 1

all. 171,

s. Co. v. Soule,

nk v. Fenno, 8 W

v. Rew, 23 Wa

United States, 10

] Ibi

429 (1895); 158

Stat. 50

o., 240 U.S. 103 (1916); Knowlton

. Ames, 173 U.

v. Moore, 178

v. Brady, 184

2 U.S. 36

] Ibi

2 U.S. 39

0 U.S. 10

0 U.S. 10

] Ibi

2 U.S. 26

t Co. v. Eisner, 256

Trust & Safe Deposit C

nited States, 281

v. Wiener, 326

Bank v. United State

. 124, 136 (1929). See also Helveri

McCaughn, 280 U.

ugh v. Blake, 5

v. Smalls, 98 U.S

7 U.S. 504, 507 (1886). Cf. Almy v.

ited States, 183 U.

418, 428 (1904); Turpin & Bro. v.

Bros. v. Edwards,

United States, 14

165 (1918); National Paper & Type

United States, 18

tes v. Hvoslef, 2

Ins. Co. v. United Stat

372 (1876); Turpin & Bro. v. B

Carolina v. Georgia, 93 U.S. 4 (1876). In Williams v. United States, 255 U.S. 336 (1921) the argument that an act of Congress which prohibited interstate transportatio

ce Comm'n. v. Texas & N.O.R.

3, 414 (1849) (opinion of Justice Wayne); cf. Coole

U.S. 455, 467 (1886). See also Munn v. Illinois, 94 U.S. 113, 135 (

Stat. 53,

v. Darden, 198

v. Troy, 258 U

ates, 301 U.S. 308, 321 (1937); Knote v

; United States v. Realty Co., 163 U.S. 427, 439

ited States, 118

Stat. 38

Co. v. United States, 3

v. Walker, 11 H

tes v. Klein, 13

.S. 149, 154 (1877); Austin v. Unit

ited States, 118

. Atty. Gen.

. Bruffy, 96 U.S.

4 Pet. 5

es v. California,

13 U.S.

Ibid.

Pet. 410, 425 (1830); Byrne

114 U.S. 270 (1885); Chaffin

C.R. Co. v. Texas,

Bank of Kentucky,

a, 13 How. 12, 15 (1851); Curran v.

Bank of Kentucky,

. Trapnall, 10 Ho

er Cases, 110 U.S

29, 38 (1844). See also Griffin

Bank v. Federal Reserve Ban

er v. Missouri, 13 Wall. 257 (1872); Pierce v. Carskadon, 1

. Nesbit, 10 How. 395, 401 (1850); Carpenter v. Pennsylvania, 17 How. 456, 463 (1855); Loche v. New Orleans, 4

S. 300, 344 (1915); Ross v. Or

New York, 128 U.S

orth Dakota, 196 U

. Co. v. Tranbarger,

v. McCurdy, 267

also Reetz v. Michigan, 188 U.S. 505, 509 (1903); Lehmann

. Missouri, 4 Wal

Carskadon, 16 W

. Washington, 30

Missouri, 107

Minnesota, 137 U.

Medley, 134 U.S.

cDonald v. Massachusetts, 180 U.S. 311 (1901);

South Carolina, 2

orth Dakota, 196 U

ississippi, 162 U.

Missouri, 152 U.S

innesota, 9 Wal

. Missouri, 152

orth Carolina, 181

ississippi, 162 U.

v. Ohio, 269

Missouri, 171 U.S

v. Utah, 170 U

ll. 511 (1871); New Orleans Gaslight Co. v. Louisiana Light & Heat Producin

o., 172 U.S. 1 (1898); Vicksburg v. Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Li

ommission, 221 U.S. 400 (1911); Louisville & N.R. Co. v. Garret

3 U.S. 273 (1896); Ross v. Oregon, 227 U.S. 150 (1913); Detroit United R. Co. v. Michigan, 242 U.S. 238 (1916); Long Sault Development Co. v. Call, 242 U.S. 272 (1

e, 101 U.S. 791, 793 (1880); and McGahey v. Virginia, 135 U.S. 662, 667 (1890); Scott v. McNeal, 154 U.S. 34, 45 (1894); Stearns v. Minne

U.S. 66, 76, 77 (1900); Hubert v. New Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. v. Lo

. See also Jefferson Branch Bank v. Skelly, 1 Bl. 436 (1862); Louisiana v. Pilsbury, 105 U.S. 278 (1882); McGahey v. Virginia, 135 U.S. 662 (18

, 3 Wall. 327 (1866); Kenosha v. Lamson, 9 Wall. 477 (1870); Olcott v. Fond du Lac County, 16 Wall. 678 (1873); Taylor v

Proof Hotel Co. v. Jones,

536 (1907); Muhlker v. New York &

v. Flanagan, 263 U.S. 4

Wall. 314 (1873); Wood v. Lov

819); see also Curran v. Ar

Wheat. 51

] Ibi

0 U.S. 39

] Ibi

] Ibi

g society and that the general words of the contract clause were not intended to reduce the legislative

ct Clause of the Constitu

and, Record

Federalis

es Wilson, I, 567,

Dall. 4

aunders, 12 Wheat

6 Cr. 8

d earlier set aside an act of Virginia as being in confli

se, The Contract Clause of the Constitution, 22.

e, on the reason and nature of things; a principle which will impose laws even on the Deity." Ibid. 143. See also his words in Satterlee v. Matthewson, 2 Pet. 380, 686 (1829); and those of the North Carolina Supreme Court in Barnes v. Barnes, 8 Jon

s held in 1886 to have lapsed through the acquiescence for sixty years of the owners of

llege v. Woodward,

se. Following this was a second Connecticut charter, namely, for building 'Union Wharf,' on 'Long Wharf,' at New Haven. A similar company, 'The Proprietors of Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,' was chartered by the Massa

s, societies, groups of 'undertakers,' 'companies,' formed for a great variety of business purposes. In the eye of the law all of them were probably mere partnerships or tenancies in common. Whaling and fishing companies, so-called, were numerous. There were a number of mining companies, chiefly for producing iron o

s, large and small, a number of associations for erecting bridges, building or repairing roads, and improving navigation of small str

oration of new paths, confident undertaking of new enterprises. Everything conspired to bring about a considerable extension of corporate enterprise in the field of business before the end of the eighteenth century, notably after the critical period of disunion and Constitution-making has passed. Prior to 1801 over three hundred charters were granted for business corporati

a power be reserved to the legislature in the act of incorporation," Wales v. Stetson, 2 Mass. 143 (1806). See also Stoughton v. Baker et al., 4 Mass. 522 (1808) to like effect; cf. Locke v. Dane, 9 Mass. 360 (1812) in which it is said that the p

ent); ibid. 666 (Story's opinion). See also Story's opi

Wheat. 51

] Ibi

so Home of the Friendless v. R

Pet. 51

1 Pet. 4

s cases to which munic

4 Wheat

ch a business becomes a "quasi-public" corporation, the power of the State to regulate which is larger than in the case of a purely private corporation. Inasmuch as most corporations receiving public

880); Covington v. Kentucky, 173 U.S. 231 (18

idge Co., 10 How. 511 (1851); Hunte

New Jersey, 262 U.

ahoning County, 10

l ex rel. Kies v. Lowr

t in sustaining the legislation. See Ibid. 509. "'A municipal corporation * * * is a representative not only of the State, but is a portion of its governmental power. * * * The State may withdraw these local powers of government at pleasure, and may, through its legislatur

ury, 116 U.S. 131 (1885); Dodge v. Board of Education, 302 U.S. 74

e v. Henderson, 15 N.C., (4 Dev.) 1 (1833). See also United States v. Fisher, 109 U.S. 143 (1883

131 (1885); Mississippi Use of Robe

S. 5 (1880). Cf. Higginbotham v.

ard of Education, 3

ard of Education,

l. Anderson v. Brand

Cr. 164

o. v. Maguire, 20 Wall. 36, 43 (1874); Humphrey v. Pegues, 16 Wall.

6 How. 3

Ibid. 3

43 (1897); Wisconsin & M.R. Co. v. Powers, 191 U.S. 379 (1903). Cf. Ettor v. Tacoma, 228 U.S. 148 (1913), in which it was held that the repeal of a stat

unty, 24 How. 300, 302 (1861); Seton Hall C

l. 430, 437 (1869); also Illinois Central R. Co. v. Decatur, 147 U.S.

. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts clause did not protect vested rights merely as such was stated by the Court as ea

ry's opinion.

ler v. New York, 15 Wall. 478 (1873); Murray v. Charleston, 96 U.S. 432 (1878); Greenwood v. Union Freight R. Co., 105

v. Yard, 95 U.S.

othrop v. Stedman, 15 Fed. Cas. No. 8,519 (1875), where the principles of natural justice are thought to set a limit to the power. Earlier is Zabriskie v. Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a new charter may not be substituted; also Allen v. McKean, 1 Fed. Cas. No. 2

stice Sutherland in his opinion for the Court in Ph

R. Co., 105 U.S. 13 (1882); Adirondack R. Co. v. New York, 176 U.S. 335 (1900); Stearns v. Minnesota, 179 U.S.

3 Wall. 190, 218 (1872). See also Ca

v. Getz, 285 U.S. 434 (1932). Both these decisions cite Greenwood v. Union

Pet. 51

d & Burlington Railroad

rn R. Co. v. Minnesota, 246 U.S. 434 (1918)); to repair viaducts, (Northern Pac. R. Co. v. Minnesota, 208 U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R. Co. v. Emmons, 149 U.S. 364 (1893)). Though a railroad company owns the right of way along a street, the city may require it t

dition which had been complied with, (New Haven & N. Co. v. Hamersley, 104 U.S. 1 (1881)). It may impose upon a railroad liability for fire communicated by its locomotives, even though the State had previously authorized the company to use said ty

See also Fertilizing Co. v. Hyde Park, 97 U.S. 659 (1878);

1 Pet. 4

1 Pet. a

1 U.S. 40

ting The Binghamton Brid

a R. Co., 130 U.S. 637, 641 (1889); Louisville & N.R. Co. v. Palmes, 109 U.S. 244, 251 (1883); Morgan v. Louisiana,

. v. Georgia, 98 U

Insurance Co. v. Tennes

., 216 U.S. 420 (1910); and New York Rapid Transit Co. v. City of New York, 303 U.S. 573 (1938). Cf.

. Co. v. Missouri ex rel.

a & Pine Land Co.,

& P.R. Co. v. Dennis,

llege v. Jackson,

ate Board of Assessmen

ific Co. v. Campbell, 230 U.S. 537 (1913) to cases in which the word "reasonable" does not appear to qualify the company

2 U.S. 432 (1923). See also Southern Iowa El

Walla Walla Water Co.,

. 354 (1902); Knoxville Water Co. v. Knoxville, 200 U.S. 2

ater Co. v. Fergus,

les, 211 U.S. 265 (1908); Wyandotte G

t which has been impaired. Since the contract here relied upon is one between a political subdivision of a state and private individuals, settled principles of construction

Church v. Mayor et al., 5

.H. 19 (1840); White River Turnpike Co. v. Vermont Cent. R. Co., 21 Vt. 590 (1849); and

ospital v. Philadelph

ailroad v. Illinois, 146

See pp.

s v. Rouse, 8 Wall. 430 (1869), and Washing

Ayers, 123 U.S. 443 (1887) on the ground that the action there was barred "as one in substance dir

ssissippi, 101 U.S

Co. v. Crescent City Co

Co. v. Louisiana Light

nnsylvania Hospital v. Philadelphia, 245 U.S. 20 (1917), where the police power and eminent domain are treated on the same basis in respect of i

& A. Lumber & Min. Co. v. Greenwood Dist, 249 U.S. 170 (1919). But cf. Livingston v. Moore, 7 Pet. 469, 549 (1833); and Garrison v. N

s v. Andrews, 188 U.S. 14 (1903). The question whether a wife's rights in the community property under the laws

orks Co., 142 U.S. 79 (1891); Zane v. Ha

a Federal Circuit Court, see Charles Warren, The Suprem

Wheat. 2

Ibid. 3

v. Quincy, 4 Wall

How. 31

How. 60

187 U.S. 437, 439 (1903); New Orleans &

. Greenhow, 107

nniman (Penniman's Case), 103 U.S. 714 (1881). On early English and Colonial law touching th

. Virginia, 135

l. Ranger v. New Orlea

v. Quincy, 4 Wall

ennessee v. Sneed, 96 U.S. 69 (1877); South Carolina v. Gaillard, 101 U.S. 433 (1880); Louisiana v. New Orleans, 102 U.S. 203 (1880); Connecticut Mut. L. Ins. Co. v. Cushman, 108 U.S. 51 (1883); Vance v. Vance, 108 U.S. 514 (1883); Gilfillan v. Union Canal Co., 109 U.S. 401 (1883); Hill v. Merchants' Mut. Ins. Co., 134 U.S. 515 (1890); New Orleans City & Lake R. Co. v. Louisiana, 157 U.S. 219 (1895); Red River Valle

v. King, 91 U.S. 3 (1875); Memphis v. United States, 97 U.S. 293 (1878); Poindexter v. Greenhow, 114 U.S. 269, 270, 298, 299 (1885); Effinger v. Kenney, 115

v. Quincy, 4 Wall.

rel. Nelson v. St. Martin's

U.S. 289 (1886); Graham v.

19 Wall. 655 (1874). Cf. Virginia v

y the taxing power which can be carried out only through authorized officials. See Rees v. City of Watertown, 19 Wall. 107, 124 (1874). And so we have had the spectacle of taxing officials resigning from office in order to frustrate tax levies through mandamus, and officials ru

; also, to same effect, Lindenmuller v. The People, 33 Barbour (N.Y.

. Springs, 199 U.S

et. 280 (1830). See also Phalen

Mississippi, 101

Co. v. Massachusett

this and the preceding two cases the legislative act invo

v. Springs, 199

& Power Co. v. Railroad Comm.

v. Kansas City Power & Lig

Water Co. v. McCarter

, 256 U.S. 170, 198 (1921); followed in Levy

. v. Sinclair, 264 U.S

0 U.S. 39

tatute, amending, in view of the Depression, the law governing building and loan associations. The authority of the State to safeguard the vit

arzey, 96 U.S. 595 (1878); and Barn

ing the enactment of moratorium statutes in 1933, see

2 U.S. 426 (1934); Worthen Co. v

295 U.S

avings Bank v. Hahn, 3

539 (1939). See also Gelfert v. Nati

3 U.S. at

orations are multiplied to an almost indefinite extent. There is scarcely a business pursued requiring the expenditure of large capital, or the union of large numbers, th

The Contract

ntral P.R. Co. v. Gallatin (Sinking Fund Cases), 99 U.S. 700, 718 (1879). See also Mitchell v. Clark, 110 U.S. 633, 643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental Ill. Nat. Bank & Trust Co. v. Chicago, R.I. & P.R. Co., 294 U.S. 648 (1935); St. Anthony Falls Water Power Co. v. Bo

ut Mutual L. Ins. Co. v. Moore, 333 U.S. 541 (1948). For a notable case in which the obligations clause was mustered into service, by rath

on Co. v. Evatt, 324

v. Parham, 8 W

Wheat. 4

] Ibi

New Orleans, 178 U

acInerney, 276 U.S. 124 (1928); McGoldric

. 29 (1872); May & Co. v. New

on Co. v. Evatt, 324

] Ibi

Co. v. Rogan, 340

aryland, 12 Wheat

rate Sales Corp. v. Alab

ustin, 13 Wall.

nsylvania, 97 U.S.

o. v. Pennsylvania,

d of Port Wardens, 12

also Pervear v. Massachusetts, 5 Wall. 475, 478 (1867)

s Co. v. MacInerney,

Louisiana, 8 Ho

v. Grima, 8 H

. 419, 441 (1827); Hooven & Alliso

rel. Burke v. Wells

U.S. 200 (1909); cf. Almy v. Ca

ago & N.W.R. Co., 125

07 U.S.

] Ibi

345, 301 (1898). For a discussion of the limitations on State power to

go & N.W.R. Co., 125 U

U.S. 261, 265 (1935); Cannon v. New Orleans, 20 Wall. 577, 581 (1874); W

); Parkersburg & Ohio River Transportation Co. v. Parkersburg, 107

amship Co. v. Tinker, 94 U.S. 238, 243 (1877); Northwestern Union Packet Co. v. St. Louis, 100 U.S. 423 (1880);

lover, 119 U.S.

. Co. v. Portwarden

. Morgan, 19 W

S.S. Co. v. Board of Healt

rry Co. v. Pennsylvania, 114 U.S. 196, 212 (1885); Philadelphia & S. Mail Steamship Co.

te Tonnage Tax Cases),

. Borden, 7 How

. Illinois, 116

Fleeger, 11 Pet

. La Plata Co., 304

se of the Constitution-A Study in Interstate Ad

Artic

Artic

4 Pet. 5

id. 570,

earns v. Minnesota, 179 U.S. 223, 244 (1900)

Compacts and Congressional Consent, 36 V

state Adjustments, 34 Yale Law Journal, 685, 735 (1925); Frederick L. Zimmerman and Mi

Stat. 90

of the States,

C. § 717j; 16 U.S.C. §§ 552, 6

Biddle, 8 Whea

v. Tennessee, 14

. West Virginia,

. Wise, 153 U.S.

302 U.S. 134 (1937). See also Arizona v

2 U.S. 63

participate and from which both races have benefited, see Remarks of Hon. Spes

eling & Belmont Bridge Co.

F.R. Co. v. James, 16

5, 209 (1837); Rhode Island v. Mass

La Plata Co., 304 U.

, 246 U.S. 565 (1918). See also Pennsylvania v. Wheeling & Belmont Bridg

West Virginia, 246

peals of West Virginia denying mandamus was reversed by the Supreme Court, and the case remanded. The opinion of the Court, by Justice Frankfurter, reviews and revises the West Virginia Court's interpretation of the State constitution, thereby opening up, temporarily at least, a new field of power for judicial review

ICL

IVE DE

The Presi

s and term of t

pe of Presiden

source of the

the federal

r; Hamilton's

s ca

-Wright

e Presidenti

four y

d term tr

ion, qualifications, succession, compe

the office of

ral col

al status of

-born ci

ial succe

f 179

1886 and

on and emo

f offi

of the

s and duties of

fship; opinions from heads

r in chi

oric

case

ze cases on World

the commander in chiefs

ial war a

tatus of Preside

ast Jap

arch 21,

vernment of lab

tions

al basis of

constitutional

law in H

e Nazi sab

imes c

commander of

chief a civil

tial adv

abine

and repr

ure of a

on of above

f the p

he United States";

pardon: Ex pa

e efficacy o

and Amn

eaties and appointm

making

t and Se

Presidential

s law of t

the conc

s versus Sta

t cas

y self-executin

m of Congress with re

power and re

l repeal of

s prior acts o

nation of treaties as in

of treaties

hether a treaty

eaty a politic

"necessary and

the treaty-making power

treat

us of Indian

eements without S

ecutive ag

executive a

Kinley's con

ts affecting Far E

igation of execut

greement o

ates v. B

. Pink; Nationa

an agreeme

e agree

nts by authorizat

trade agr

lity of trade

ease A

s Congress ve

ion agre

r the United Na

ns Participa

establis

ice"

nd other publi

l diplomati

regulation o

in off

alty is

reasing duties

ficers"; "em

ppointment

nati

appro

consent is

ning the

appoint

m designa

ower; Mye

the office"

rey c

of the remo

ntial a

lomatic, and law enforcemen

role of the

f Recep

f the p

ntial mon

ogan A

a formativ

s diplomat

's real p

recogni

se of

nonrecogn

t and Co

mentation of Presid

political

ments of the

nt as law e

executive

t's own powers a

dent in relation to subordi

tralization v. Jacks

r v. Presidential

v. Humphr

t to guide enforcemen

as law int

aw enforcement: the

Habeas Corpus

ve marti

cas

he Debs cas

in cases of dom

cutive of the la

n rights of person an

al world p

antic P

the domain of Congress:

unity from judic

bordinates and

4. Impea

chmen

" offi

s and misde

mpeachm

impeac

mpeachm

IVE DE

icl

tes of America. He shall hold his Office during the Term of four Years, and, to

Scope of Pres

SOURCE OF T

s state; * * * he shall have power to convene the assembly and senate on extraordinary occasions; to prorogue them from time to time, provided such prorogations shall not exceed sixty days in the space of any one year; and, at his discretion, to grant reprieves and pardons to perso

eir consideration as shall appear to him to concern its good government, welfare, and prosperity; to correspond with the Continental Congress and other States; to transact all necessary business w

act that the governor was to be chosen by a constitutionally defined electorate, not by the legislature. He was also to have a three-year term, and there were to be no limitations on his re-eligibility to office. In short, all the isolated principles of executive strength in other constitutions were here brought into a new whole. Alone they were of slight impor

Y IN THE FEDE

e 'The President of the United States of America'; and his title shall be 'His Excellency.'"[4] This language recorded the decision of the Convention, sitting in committee of the whole, that the national executive power

ER"; HAMILTON'

other things, that the president shall be commander in chief of the army and navy of the United States, and of the militia of the several states, when called into the actual service of the United States; that he shall have power, by and with the advice and consent of the senate, to make treaties; that it shall be his duty to receive ambassadors and other public ministers, and to take care that the laws be faithfully executed. It would not consist with the rules of sound construction, to consider this enumeration of particular authorities as derogating from the more comprehensive grant in the general clause, further than as it may be coupled with express restrictions or limitations; as in regard to the co-operation of the senate in the appointment of officers, and the making of treaties; which are plainly qualifications of the general executive powers of appointing officers and making treaties. The difficulty of a complete enumeration of all the cases of executive authority, would naturally dictate the use of general terms, and would render it improbable that a specification of cer

MYER

tion of the removal power adopted, and indeed extended, but Hamilton's general theory as to the proper mode of construing the clause was unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Co

TISS-WR

at in this field the National Government is not one of enumerated but of inherent powers;[12] and the practical conclusion he drew was that the constitutional objection to delegation of legislative power does not ap

atitudinarian conceptions of Presidential power. Especially has his role as "Commander in Chief in war

HE PRESIDEN

rate the monarchical aspects of the office. They would fain give him a title, His Excellency (already applied in several States to the governors thereof), Highness, Elective Majesty, being suggestions. Ellsworth of Connecticut wished to see his name or place inserted in the enacting clause of statutes. They contrived to make a ceremony of the President's appearances before Congress, his annual address to which, given in person, was answered by a reply equally formal.[17] They sought to enact that "all writs and processes, issuing out of the Supreme or circuit courts shall be in the n

21] to the contrary he in some respects enlarged upon them. After his day, however, the office passed into temporary eclipse behind its own creature, the Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the People's Choice," as all by himself "one of the three equal departments of government,"[23] as the leader of his party, as the embodiment of the unity of the country,[24] Jackson stam

M OF FOU

ednesday in March, which was March 4, 1789, was fixed as the time for commencing proceedings under the said Constitution. Although as a matter of fact Washington was not inaugurated until April 30 of that year, by an act approved March 1, 1792, it was provided that t

THIRD TER

for more than two terms was generally thought to be a fixed tradition, although some quibbles had been raised as to the meaning of the word "term". President Franklin D. Roosevelt's violation of the tradition led to the proposal by Congress on March 24, 1947, of an amendment to the Constitutio

o the whole Number of Senators and Representatives to which the State may be entitled in the Congress; but no Senator o

the Certificates, and the Votes shall then be counted. The Person having the greatest Number of Votes shall be the President, if such Number be a Majority of the whole Number of Electors appointed; and if there be more than one who have such Majority, and have an equal Number of Votes, then the House of Representatives shall immediately chuse by Ballot one of them for President; and if no Person have a Majority, then from the five highest on the List the said House shall in like Manner chuse the President. But in chusing

e Electors, and the Day on which they shall give their Vote

his Constitution, shall be eligible to the Office of President; neither shall any Person be eligible to that Office wh

ame shall devolve on the Vice President, and the Congress may by law provide for the Case of Removal, Death, Resignation or Inability, both of the President and Vice

ll neither be encreased nor diminished during the Period for which he shall have been elected, and

"I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United State

of the Offic

ECTORAL

hoice partly by the people voting in districts and partly by legislature; by choice by the legislature from candidates voted for by the people in districts; and in other ways, as, notably, by North Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised as to the power of the State to appoint, in any mode its legislature saw fit to adopt, and none that a single method, applicable without exception, must be pursued in the absence of an amendment to the Constitution. The dis

NAL STATUS

illing by each State, in such manner as its legislature may prescribe, of vacancies in its college of electors; and has regulated the manner of certifying and transmitting their votes to the seat of the national government, and the course of proceeding in their opening and counting them."[31] The truth of the matter is that the Electors are not "officers" at all, by the usual tests of office.[32] They have neither tenure nor salary, and having performed their single function they cease to exist as Electors. This function is, moreover, "a federal function,"[33] their capacity to perform which results from no power which was originally resident in the States, but springs directly from the Constitution of the United States.[34] In the face, therefore, of the proposition that Electors are State officers, the Court has upheld the power of Congress to protect the right of all citizens wh

L-BORN"

Party for President and Vice President respectively. Amendment XII, which was adopted in 1803 and replaces clause 3, makes a recurrence of the 1800 contretemps impossible. See pp. 941-942. Clause 4 testifies still further to the national character of Presidential Electors. Clause 5 is today chiefly of historical interest, all Presidents since, and including Martin Van Buren, except his immediate successor, William Henry Harris

NTIAL S

er since; but inasmuch as all successions have taken place in consequence of the death in office of a President, the precedent would not necessarily hold in the case of a succession on account of the temporary inability of the incumbent President. Nor has any procedure been establ

ct of

lection was so near at hand as to render the step unnecessary. It is unlikely that Congress ever passed a more ill-considered law. As Madison pointed out at the time, it violated the principle of the Separation of Powers and flouted the probability that neither the President pro tempore nor the Speaker is an "officer" in the sense of this paragraph of the Constitution. It thus contemplated the possibility of there being nobody to exercise the powers of the President for an indefinite period, and at the same time set at naught, by the provision made for an interim presidential election, the synchrony evidently contemplated by the C

of 1886

a member of the Cabinet acted as President he would retain his Cabinet post. The Succession Act now in force was urged by President Truman, who argued that it was "undemocratic" for a Vice President who had succeeded to the Presidency to be able to appoint his own successor. By the act of July 18, 1947[43] the Speaker of the House and the President pro tempore of the Senate a

ION AND E

at has been determined as to the application of the parallel

OF

nguage of the clause itself, and is further supported by the fact that, while the act of March 1, 1792 assumes that Washington became President March 4, 1789, he did not take

of th

aggrandize power. Jackson, it is true, appealed to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did so in his Message of July 4, 1861; as

actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating t

ander in

TOR

here was no necessity that he should, take the command in person; and there was no probability that he would do so, except in extraordinary emergencies, and when he was possessed of superior military talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His [the President's] duty and his power are purely military. As commander in chief, he is authorized to direct the movements of the naval and military forces placed by law at his command, and to employ them in the manner he may deem most effectual to harass and conquer and subdue the enemy. He may invade the hostile country, and subject it to the sovereignty and authority of the United States. But his conquests do not enlarge the boundaries of this Union, nor extend the operation of our institutio

RIZE

t waiting for any special legislative authority. And whether the hostile party be a foreign invader, or States organized in rebellion, it is none the less a war, although the declaration of it be 'unilateral.' Lord Stowell (1 Dodson, 247) observes, 'It is not the less a war on that account, for war may exist without a declaration on either side. It is so laid down by the best writers on the law of nations. A declaration of war by one country only is not a mere challenge to be accepted or refused at pleasure by the other.' The battles of Palo Alto and Resaca de la Palma had been fought before the passage of the act of Congress of May 13, 1846, which recognized 'a state of war as existing by the act of the Republic of Mexico.' This act not only provided for the future prosecution of the war, but was itself a vindication and ratification of the Act of the President in accepting the challenge without a previous formal declaration of war by Congress. This greatest of civil wars was not gradually developed by popular commotion, tumultuous assemblies, or local unorganize

IZE CASES ON WOR

to have been assumed during World War I and World War II that the Commander in Chiefship carries with it the power to exercise like powers practically at discretion; and not merely in wartime but even at a time when war becomes a strong possibility. Nor was any attention given the fact that Lincoln had asked Congress to ratify and confirm his acts, which Congress promptly did,[54] with the exception of his suspension of the habeas corpus privilege which was regarded by many

F THE COMMANDER IN CH

certain provisions of the Emergency Price Control Act of the previous January 30th,[59] the late Pres

by that date will leave me with an inescapable responsibility to the people of this cou

ail to act, and act adequately, I shall

are stabilized, wages can and will

der Congressional acts, to take measures necessary to avert

ssue without further reference to the Congress. I have determined

ution and to my country. The American people can also be sure that I shall not hesitate to use every power veste

r which I act automatically revert to

TIAL WAR

artments or existing independent regulatory agencies. Oldest of all these Presidential agencies was the Office for Emergency Management (OEM), which was created by an executive order dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the National Housing Agency (NHA), the National War Labor Board (NWLB), or more shortly (WLB), the Office of Censorship (OC), the Office of Civilian Defense (OCD), the Office of Defense Transportation (ODT), the Office of Facts and Figures (OFF), presently absorbed into the Office of War Information (OWI), the War Productio

STATUS OF PRESI

ort of this view the Court quoted approvingly a statement by the chairman of the Board itself: "These orders are in reality mere declarations of the equities of each industrial dispute, as determined by a tripartite body in which industry, labor, and the public share equal responsibility; and the appeal of the Board is to the moral obligation of employers and workers to abide by the nonstrike, no-lock-out agreement and * * * to carry out the directives of the tribunal created under that agreement by the Commander in Chief." Nor, the Co

T COAST

sued an executive order the essential

protection against espionage and against sabotage to national-defense m

tary areas in such places and of such extent as he or the appropriate Military Commander may determine, from which any or all persons may be excluded, and with respect to which, the right of any person to enter, remain in, or leave shall be subject to whatever restrictions the Secretary of War or the appropriate Military Commander may impose in his discre

, food, clothing, transportation, use of land, shelter, and other supplies, equipment, utilities, facilities and services."[64] In pursuance of this order more than 112,000 Japanese residents of Western States, of whom nearly two out of every three were natural-born citizens of

of March

as made a misdemeanor to knowingly enter, remain in, or leave prescribed military areas contrary to the orders of the Secretary of War or of the commanding officer of the area. The cases which subsequently arose in consequence of the order were decided under the order plus the act. The question at issue, said Chief Justice Stone for the Court, "is not one of

OVERNMENT OF L

s a going concern,'" as well as "to obtain supplies for which Congress has appropriated the money, and which it has directed the President to obtain."[68] Other seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive Order 9017, created the National War Labor Board. "Whereas," the order read in part, "by reason of the state of war declared to exist by joint resolutions of Congress, * * *, the national interest demands that there shall be no interruption of any work which contributes to the effective prosecution of the war; and Whereas as a result of a conference of representatives of labor and industry which met at the call of the President on December 17, 1941,

NCT

r. Roosevelt often resorted to "sanctions," which may be described as penalties lacking statutory authorization. Ultimately, the P

or withdrawing from a noncomplying employer any priorities, benefits or privileges extended, or contracts entered into, b

awing from a noncomplying labor union any benefits, privileges or rights accruing to it under the terms of conditions of employment in effect (whether by agreement between the parties or by order of the National War Labor Board, or both) when possession was taken, until such time as the nonco

als, directing the entry of appropriate orders relating to the modificati

in D. R

ouse, Aug. 1

NAL BASIS O

ked the district court to enjoin it. The Court refused to do so and was sustained by the Supreme Court in its position. Said Justice Douglas, speaking for the Court: "Without rationing, the fuel tanks of a few would be full; the fuel tanks of many would be empty. Some localities would have plenty; communities less favorably situated would suffer. Allocation or rationing is designed to eliminate such inequalities and to treat all alike who are similarly situated. * * * But middlemen-wholesalers and retailers-bent on defying the rationing system could raise havoc with it. * * * These middlemen are the chief if not the only conduits between the source of limited supplies and the consumers. From the viewpoint of a rationing system a middleman who distributes the product in violation and disregard of the prescribed quotas is an inefficient and wasteful conduct. * * * Certainly we could not say that the President would lack the power under this A

D CONSTITUTION

nt passage of the Court's opinion bearing on this point is the following: "If, in foreign invasion or civil war, the courts are actually closed, and it is impossible to administer criminal justice according to law, then, on the theatre of active military operations, where war really prevails, there is a necessity to furnish a substitute for the civil authority, thus overthrown, to preserve the safety of the army and society; and as no power is left but the military, it is allowed to govern by martial rule until the laws can have their free course. As necessity creates the rule, so it limits its duration; for, if this government is continued after the courts are reinstated, it is a gross usurpation of power. Martial rule can never exist where the courts are open, and in proper and unobstructed exercise of their jurisdiction. It is also confined to the locality of actual war."[82] Four Justices, speaking by Chief Justice Chase, while holding Milligan's trial to have been void because violative of the act of March 3, 1863 governing the custody and trial of persons who had been deprived of the habeas corpus privilege, declared their belief that Congress could have authorized Milligan's trial. Said the Chief Justice: "Congress has the power not only to raise and support and govern armies but t

LAW IN

on the local commanding General of the Army all his own powers as governor and also "all of the powers normally exercised by the judicial officers * * * of this territory * * * during the present emergency and u