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Title: The Constitution of the United States of America: Analysis and Interpretation
       Annotations of Cases Decided by the Supreme Court of the United States to June 30, 1952


Editor: Edward Corwin

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Language: English

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Transcriber's notes:

   [=o] represents the vowel "o" with a macron in this text.

   The original editor's comments are enclosed in square brackets [].

   Notes unique to this edition are also enclosed in square brackets,
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82d Congress }     SENATE     { Document
_2d Session_ }                { No. 170

THE CONSTITUTION OF THE UNITED STATES OF AMERICA

ANALYSIS AND INTERPRETATION

Annotations of Cases Decided by the Supreme Court of the United States
to June 30, 1952

Prepared by the Legislative Reference Service, Library of Congress

EDWARD S. CORWIN, Editor







[Illustration]



United States Government Printing Office Washington: 1953
For sale by the Superintendent of Documents, U.S. Government Printing
Office
Washington 25 D.C.--Price $6.25




SENATE JOINT RESOLUTION 69

JOINT RESOLUTION To prepare a revised edition of the Annotated
Constitution of the United States of America as published in 1938 as
Senate Document 232 of the Seventy-fourth Congress.

Whereas the Annotated Constitution of the United States of America
published in 1938 as Senate Document 232, Seventy-fourth Congress, has
served a very useful purpose by supplying essential information in one
volume and at a very reasonable price; and

Whereas Senate Document 232 is no longer available at the Government
Printing Office; and

Whereas the reprinting of this document without annotations for the last
ten years is now considered appropriate: Now, therefore, be it

_Resolved by the Senate and House of Representatives of the United
States of America in Congress assembled_, That the Librarian of Congress
is hereby authorized and directed to have the Annotated Constitution of
the United States of America, published in 1938, revised and extended to
include annotations of decisions of the Supreme Court prior to January
1, 1948, construing the several provisions of the Constitution
correlated under each separate provision, and to have the said revised
document printed at the Government Printing Office. Three thousand
copies shall be printed, of which two thousand two hundred copies shall
be for the use of the House of Representatives and eight hundred copies
for the use of the Senate.

Sec. 2. There is hereby authorized to be appropriated for
carrying out the provisions of this Act, with respect to the preparation
but not including printing, the sum of $35,000 to remain available until
expended.

Approved June 17, 1947.




PREFACE

By Honorable Alexander Wiley

_Chairman, Senate Foreign Relations Committee_


To the Members and Committees of the Congress, the Constitution is more
than a revered abstraction; it is an everyday companion and counsellor.
Into it, the Founding Fathers breathed the spirit of life; through every
subsequent generation, that spirit has remained vital.

In more than a century and a half of cataclysmic events, the
Constitution has successfully withstood test after test. No
crisis--foreign or domestic--has impaired its vitality. The system of
checks and balances which it sets up has enabled the growing nation to
adapt itself to every need and at the same time to checkrein every bid
for arbitrary power.

And meantime America itself has evolved dynamically and dramatically.
The humble 13 colonies, carved out of the wilderness in the 18th
Century, emerged in the 20th Century as leader of
earth--industrial--military--political--economic--psychological. Yet the
broad outline of the Supreme Law remains today fundamentally intact.

It is small wonder that W.E. Gladstone described the Constitution as
"the most wonderful work ever struck off at a given time by the brain
and purpose of man." He knew, as should we, that the Constitution's
words, its phrases, clauses, sentences, paragraphs, and sections still
possess a miraculous quality--a mingled flexibility and strength which
permits its adaptation to the needs of the hour without sacrifice of its
essential character as the basic framework of freedom.

Congress has long recognized how necessary it is to have a handy working
guide to this superb charter. It has sought a map, so to speak, of the
great historical landmarks of Constitutional jurisprudence--landmarks
which mark the oft-times epic battles of clashing legal interpretations.
A first step was taken toward meeting this need by publication of Senate
Document 12, 63d Congress in 1913. Ten years later, in 1923 another
volume was issued, Senate Document 96, 67th Congress, and it was
followed in turn by Senate Document 154 of the 68th Congress.

In 1936, Congress authorized a further revision, this time by the
Legislative Reference Service. Mr. Wilfred C. Gilbert, now the Assistant
Director of the Service, was the editor of this volume which became
Senate Document 232, 74th Congress, and he has given counsel throughout
the development of the present edition of this volume.

After another decade of significant and far-reaching judicial
interpretation, the Senate Judiciary Committee reported out Senate Joint
Resolution 69 of the 80th Congress calling upon the Librarian of
Congress for the preparation of the new work. However, because of the
increase in responsibilities of the Legislative Reference Service, it
was no longer feasible for it to undertake this additional burden with
its regular staff. The Director of the Service, Dr. Ernest S. Griffith,
suggested therefore that Dr. Edward S. Corwin be engaged to head the
project with a collaborating staff to be furnished by the Legislative
Reference Service.

In my capacity at the time, as Chairman of the Senate Judiciary
Committee, I was delighted to give my approval to this arrangement, for
I recognized our particular good fortune in obtaining the services of an
acknowledged authority for this highly significant and delicate
enterprise.

I should like now to express our thanks and appreciation to Dr. Corwin
and to his collaborators from the Service, Dr. Norman J. Small,
Assistant Editor, Miss Mary Louise Ramsey, and Dr. Robert J. Harris, for
all their prodigious and skilled labors.

Moreover, for their considerable efforts in connection with the detailed
legislative and printing arrangements for the publication of this
volume, I should like to express appreciation to Mr. Darrell St. Claire,
Staff Member for the Senate Rules Committee, as well as Chief Clerk for
the Joint Committee on the Library of Congress; and Mr. Julius N. Cahn,
previously Executive Assistant to me when I was Chairman of the
Judiciary Committee and now Counsel to the Senate Foreign Relations
Committee.

Initiated in the Republican 80th Congress, the project was undertaken
With funds supplied by the succeeding Democratic 81st Congress, while
the Democratic 82d Congress extended its coverage to include Supreme
Court decisions through June 30, 1952. The document thus represents
Congressional nonpartisan activity at its best, as should ever be the
case in our fidelity to this great charter.

In the present volume, in addition to the annotations indicating the
current state of interpretation, Dr. Corwin has undertaken to supply an
historical background to the several lines of reasoning. It is our hope
and expectation that this introduction will prove of immense benefit to
users in understanding the trends of judicial constitutional
interpretation.

It is our further hope that this edition as a whole may serve a still
larger purpose--strengthening our understanding of and loyalty to the
principles of this republic.

In that way, the Constitution will remain the blueprint for freedom. It
will continue as an inspiration for us of this blessed land, and for men
and women everywhere; for they look to these shores as the lighthouse of
freedom, in a world where the darkness of despotism hangs so heavily.

_May 30, 1953._

[Illustration: Alexander Wiley signature]




PREFACE


For many years the Congress has felt the need for a handy, concise guide
to the interpretation of the Constitution. An edition of the
Constitution issued in 1913 as Senate Document 12, 63d Congress, took a
step in this direction by supplying under each clause, a citation of
Supreme Court decisions thereunder. This was obviously of limited
usefulness, leaving the reader, as it did, to an examination of cases
for any specific information. In 1921 the matter received further
consideration. Senate Resolution 151 authorized preparation of a volume
to contain the Constitution and its amendments, to January 1, 1923 "with
citations to the cases of the Supreme Court of the United States
construing its several provisions." This was issued as Senate Document
96 of the 67th Congress, and was followed the next year by a similar
volume annotating the cases through the October 1923 Term of the Supreme
Court. (Senate Document 154, 68th Congress.) Both of these volumes went
somewhat beyond the mere enumeration of cases, carrying under the
particular provisions of the Constitution a brief statement of the point
involved in the principal cases cited.

Thirteen years of Constitutional developments led Congress in 1936 to
authorize a revision of the 1924 volume, and under authority of Senate
Concurrent Resolution 35 introduced by Senator Ashurst, Chairman of the
Judiciary Committee, such a revision was prepared in the Legislative
Reference Service and issued as Senate Document 232, 74th Congress.

This volume was, like its predecessors, dedicated to the need felt by
Members for a convenient ready-reference manual. However, so extensive
and important had been the judicial interpretation of the Constitution
in the interim that a very much larger volume was the result.

After another decade, in the course of which many of the earlier
interpretations were reviewed and modified, the Senate again moved for a
revision of the Annotations. Senate Joint Resolution 69 introduced by
the then Chairman of the Judiciary Committee, Senator Alexander Wiley,
again called upon the Library of Congress to undertake the work. The
confidence thus implied was most thoroughly appreciated. To meet his
responsibilities, the Librarian called upon Dr. Edward S. Corwin to head
the project. The collaborating staff, supplied by the Legislative
Reference Service, included Dr. Norman J. Small as assistant editor,
Miss Mary Louise Ramsey, and Robert J. Harris.

This time, more than ever, the compilers faced a difficult task in
balancing the prime requirement of a thorough and adequate annotation
against the very practical desire to keep the results within convenient
compass.

Work on the project was delayed until funds were made available. In
consequence the annotations have been extended to a somewhat later date,
covering decisions of the Supreme Court through June 30, 1952.

Ernest S. Griffith,
_Director, Legislative Reference Service._




EDITOR'S FOREWORD


The purpose of this volume is twofold; first, to set forth so far as
feasible the currently operative meaning of all provisions of the
Constitution of the United States; second, to trace in the case of the
most important provisions the course of decision and practice whereby
their meaning was arrived at by the Constitution's official
interpreters. Naturally, the most important source of material relied
upon comprises relevant decisions of the Supreme Court; but acts of
Congress and Executive orders and regulations have also been frequently
put under requisition. Likewise, proceedings of the Convention which
framed the Constitution have been drawn upon at times, as have the views
of dissenting Justices and occasionally of writers, when it was thought
that they would aid understanding.

That the Constitution has possessed capacity for growth in notable
measure is evidenced by the simple fact of its survival and daily
functioning in an environment so vastly different from that in which it
was ordained and established by the American people. Nor has this
capacity resided to any great extent in the provision which the
Constitution makes for its own amendment. Far more has it resided in the
power of judicial review exercised by the Supreme Court, the product of
which, and hence the record of the Court's achievement in adapting the
Constitution to changing conditions, is our national Constitutional Law.

Thus is explained the attention that has been given in some of these
pages to the development of certain of the broader doctrines which have
influenced the Court in its determination of constitutional issues,
especially its conception of the nature of the Federal System and of the
proper role of governmental power in relation to private rights. On both
these great subjects the Court's thinking has altered at times--on a few
occasions to such an extent as to transcend Tennyson's idea of the law
"broadening from precedent to precedent" and to amount to something
strongly resembling a juridical revolution, bloodless but not wordless.

The first volume of Reports which issued from the Court following
Marshall's death--11 Peters (1837)--signalizes such a revolution, that
is to say, a recasting of fundamental concepts; so does 100 years later,
Volume 301 of the United States Reports, in which the National Labor
Relations Act [The "Wagner Act"] and the Social Security Act of 1935
were sustained. Another considerable revolution was marked by the
Court's acceptance in 1925 of the theory that the word "liberty" in the
Fourteenth Amendment rendered the restrictions of the First Amendment
upon Congress available also against the States.

In the preparation of this volume constant use has been made of "The
Constitution of the United States of America Annotated," which was
brought out under the editorship of Mr. W.C. Gilbert in 1938. Its
copious listing of cases has been especially valuable. Its admirable
Tables of Contents and Index have furnished a model for those of the
present volume. If this model has been approximated the contents of this
volume ought to be readily accessible despite its size. The coverage of
the volume ends with the cases decided June, 1952.

A personal word or two must be added. The Editor was invited to
undertake this project by Dr. Ernest S. Griffith, Director of the
Legislative Reference Service of the Library of Congress, and his
constant interest in the progress of our labors has been a tremendous
source of encouragement. To his able collaborators the Editor will not
attempt to express his appreciation--they share with him the credit for
such merits as the work possesses and responsibility for its short
comings. And I am sure that they join me in thanking Miss Evelyn K.
Mayhugh for her skill and devotion in aiding us at every step in our
common task.

Edward S. Corwin.




INTRODUCTION


It is my purpose in this Introduction to the _Constitution of the United
States, Annotated_ to sketch rapidly certain outstanding phases of the
Supreme Court's interpretation of the Constitution for the illustration
they may afford of the interests, ideas, and contingencies which have
from time to time influenced the Court in this still supremely important
area of its powers and of the comparable factors which give direction to
its work in the same field at the present time.

As employed in this country, Constitutional Law signifies a body of
rules resulting from the interpretation by a high court of a written
constitutional instrument in the course of disposing of cases in which
the validity, in relation to the constitutional instrument, of some act
of governmental power, State or national, has been challenged. This
function, conveniently labelled "Judicial Review," involves the power
and duty on the part of the Court of pronouncing void any such act which
does not square with its own reading of the constitutional instrument.
Theoretically, therefore, it is a purely juristic product, and as such
does not alter the meaning. To those who hold this theory, the Court
does not elaborate the instrument, as legislative power might; it
elucidates it, bringing forth into the light of day, as it were, what
was in the instrument from the first.

In the case of judicial review as exercised by the Supreme Court of the
United States in relation to the national Constitution, its preservative
character has been at times a theme of enthusiastic encomium, as in the
following passage from a speech by the late Chief Justice White, made
shortly before he ascended the Bench:

      ... The glory and ornament of our system which distinguishes
     it from every other government on the face of the earth is
     that there is a great and mighty power hovering over the
     Constitution of the land to which has been delegated the awful
     responsibility of restraining all the coordinate departments
     of government within the walls of the governmental fabric
     which our fathers built for our protection and immunity.[1]

At other times the subject has been dealt with less enthusiastically,
even skeptically.

One obstacle that the theory encountered very early was the refusal of
certain Presidents to regard the Constitution as primarily a source of
rules for judicial decision. It was rather, they urged, a broadly
discretionary mandate to themselves and to Congress. And pursuing the
logic of this position, they contended that while the Court was
undoubtedly entitled to read the Constitution independently for the
purpose of deciding cases, this very purpose automatically limited the
authoritativeness of its readings; and that within their respective
jurisdictions President and Congress enjoyed the same correlative
independence as the Court did within its jurisdiction. This was, in
effect, the position earlier of Jefferson and Jackson, later of Lincoln,
and in recent times that of the two Roosevelts.

Another obstacle has been of the Court's own making. Whether because of
the difficulty of amending the Constitution or for cautionary reasons,
the Court took the position, as early as 1851, that it would reverse
previous decisions on constitutional issues when convinced they were
erroneous.[2] An outstanding instance of this nature was the decision in
the Legal Tender cases, in 1871, reversing the decision which had been
rendered in Hepburn _v._ Griswold fifteen months earlier;[3] and no less
shattering to the prestige of _stare decisis_ in the constitutional
field was the Income Tax decision of 1895,[4] in which the Court
accepted Mr. Joseph Choate's invitation to "correct a century of error".
The "constitutional revolution" of 1937 produced numerous reversals of
earlier precedents on the ground of "error", some of them, the late Mr.
James M. Beck complained, without "the obsequious respect of a funeral
oration".[5] In 1944 Justice Reed cited fourteen cases decided between
March 27, 1937 and June 14, 1943 in which one or more prior
constitutional decisions were overturned.[6] On the same occasion
Justice Roberts expressed the opinion that adjudications of the Court
were rapidly gravitating "into the same class as a restricted railroad
ticket, good for this day and train only".[7]

Years ago the eminent historian of the Supreme Court, Mr. Charles
Warren, had written:

     However the Court may interpret the provisions of the
     Constitution, it is still the Constitution which is the law
     and not the decision of the Court.[8]

In short, it is "not necessarily so" that the Constitution is preserved
in the Court's reading of it.

A third difficulty in the way of the theory that Judicial Review is
preservative of the Constitution is confronted when we turn to consider
the statistical aspects of the matter. The suggestion that the
Constitution of the United States contained in embryo from the beginning
the entirety of our national Constitutional Law confronts the will to
believe with an altogether impossible test. Compared with the
Constitutional Document, with its 7,000 words more or less, the bulk of
material requiring to be noticed in the preparation of an annotation of
this kind is simply immense. First and last, the Court has probably
decided well over 4,000 cases involving questions of constitutional
interpretation. In many instances, to be sure, the constitutional issue
was disposed of quite briefly. In some instances, on the other hand, the
published report of the case runs to more than 200 pages.[9] In the
total, it is probable that at least 50,000 pages of the United States
Supreme Court Reports are devoted to Constitutional Law topics.

Nor is this the whole story, or indeed the most important part of it.
Even more striking is the fact that the vast proportion of cases forming
the corpus of national Constitutional Law has stemmed, or has purported
to stem, from four or five brief phrases of the Constitutional Document,
the power "to regulate ... commerce among the States," impairment of
"the obligation of contracts" (now practically dried up as a formal
source of constitutional law), deprivation of "liberty or property
without due process of law" (which phrase occurs both as a limitation on
the National Government and, since 1868, on the States), and out of four
or five doctrines which the Constitution is assumed to embody. The
latter are, in truth, the essence of the matter, for it is through these
doctrines, and under the cover which they afford, that outside
interests, ideas, preconceptions, have found their way into
Constitutional Law, have indeed become for better, for worse, its
leavening element.

That is to say, the effectiveness of Constitutional Law as a system of
restraints on governmental action in the United States, which is its
primary _raison d'etre_, depends for the most part on the effectiveness
of these doctrines as they are applied by the Court to that purpose. The
doctrines to which I refer are (1) the doctrine or concept of
Federalism; (2) the doctrine of the Separation of Powers; (3) the
concept of a Government of Laws and not of Men, as opposed especially to
indefinite conceptions of presidential power; (4) and the substantive
doctrine of Due Process of Law and attendant conceptions of Liberty.
What I proposed to do is to take up each of these doctrines or concepts
in turn, tell something of their earlier history, and then project
against this background a summary account of what has happened to them
in recent years in consequence of the impact of war, of economic crisis,
and of the political and ideological reaction to the latter during the
Administrations of Franklin D. Roosevelt.


I

Federalism

Federalism in the United States embraces the following elements: (1) as
in all federations, the union of several autonomous political entities,
or "States," for common purposes; (2) the division of legislative powers
between a "National Government," on the one hand, and constituent
"States," on the other, which division is governed by the rule that the
former is "a government of enumerated powers" while the latter are
governments of "residual powers"; (3) the direct operation, for the most
part, of each of these centers of government, within its assigned
sphere, upon all persons and property within its territorial limits; (4)
the provision of each center with the complete apparatus of law
enforcement, both executive and judicial; (5) the supremacy of the
"National Government" within its assigned sphere over any conflicting
assertion of "state" power; (6) dual citizenship.

The third and fourth of the above-listed salient features of the
American Federal System are the ones which at the outset marked it off
most sharply from all preceding systems, in which the member states
generally agreed to obey the mandates of a common government for certain
stipulated purposes, but retained to themselves the right of ordaining
and enforcing the laws of the union. This, indeed, was the system
provided in the Articles of Confederation. The Convention of 1787 was
well aware, of course, that if the inanities and futilities of the
Confederation were to be avoided in the new system, the latter must
incorporate "a coercive principle"; and as Ellsworth of Connecticut
expressed it, the only question was whether it should be "a coercion of
law, or a coercion of arms," that "coercion which acts only upon
delinquent individuals" or that which is applicable to "sovereign
bodies, states, in their political capacity."[10] In Judicial Review the
former principle was established, albeit without entirely discarding
the latter, as the War between the States was to demonstrate.

The sheer fact of Federalism enters the purview of Constitutional Law,
that is, becomes a judicial concept, in consequence of the conflicts
which have at times arisen between the idea of State Autonomy ("State
Sovereignty") and the principle of National Supremacy. Exaltation of the
latter principle, as it is recognized in the Supremacy Clause (Article
VI, paragraph 2) of the Constitution, was the very keystone of Chief
Justice Marshall's constitutional jurisprudence. It was Marshall's
position that the supremacy clause was intended to be applied literally,
so that if an unforced reading of the terms in which legislative power
was granted to Congress confirmed its right to enact a particular
statute, the circumstance that the statute projected national power into
a hitherto accustomed field of state power with unavoidable curtailment
of the latter was a matter of indifference. State power, as Madison in
his early nationalistic days phrased it, was "no criterion of national
power," and hence no independent limitation thereof.

Quite different was the outlook of the Court over which Marshall's
successor, Taney, presided. That Court took as its point of departure
the Tenth Amendment, which reads, "The powers not delegated to the
United States by this Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people." In
construing this provision the Court under Taney sometimes talked as if
it regarded all the reserved powers of the States as limiting national
power; at other times it talked as if it regarded certain subjects as
reserved exclusively to the States, slavery being, of course, the
outstanding instance.[11]

But whether following the one line of reasoning or the other, the Taney
Court subtly transformed its function, and so that of Judicial Review,
in relation to the Federal System. Marshall viewed the Court as
primarily an organ of the National Government and of its supremacy. The
Court under Taney regarded itself as standing outside of and above both
the National Government and the States, and as vested with a
quasi-arbitral function between two centers of diverse, but essentially
equal, because "sovereign", powers. Thus in Ableman _v._ Booth, which
was decided on the eve of the War between the States, we find Taney
himself using this arresting language:

     This judicial power was justly regarded as indispensable, not
     merely to maintain the supremacy of the laws of the United
     States, but also to guard the States from any encroachment
     upon their reserved rights by the general government.... So
     long ... as this Constitution shall endure, this tribunal must
     exist with it, deciding in the peaceful forms of judicial
     proceeding, the angry and irritating controversies between
     sovereignties, which in other countries have been determined
     by the arbitrament of force.[12]

It is, therefore, the Taney Court, rather than the Marshall Court, which
elaborated the concept of Dual Federalism. Marshall's federalism is more
aptly termed national federalism; and turning to modern issues, we may
say without exaggeration that the broad general constitutional issue
between the Court and the Franklin D. Roosevelt program in such cases as
Schechter Corp. _v._ United States and Carter _v._ Carter Coal Co.[13]
was, whether Marshall's or Taney's brand of federalism should prevail.
More precisely, the issue in these cases was whether Congress' power to
regulate commerce must stop short of regulating the employer-employee
relationship in industrial production, that having been hitherto
regulated by the States. In Justice Sutherland's words in the Carter
case:

     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.... The
     conclusive answer is that the evils are all local evils over
     which the Federal Government has no legislative control. The
     relation of employer and employee is a local relation. At
     common law, it is one of the domestic relations. The wages are
     paid for the doing of local work. Working conditions are
     obviously local conditions. The employees are not engaged in
     or about commerce, but exclusively in producing a commodity.
     And the controversies and evils, which it is the object of the
     act to regulate and minimize, are local controversies and
     evils affecting local work undertaken to accomplish that local
     result. Such effect as they may have upon commerce, however
     extensive it may be, is secondary and indirect. An increase in
     the greatness of the effect adds to its importance. It does
     not alter its character.[14]

We all know how this issue was finally resolved. In the Fair Labor
Standards Act of 1938 Congress not only prohibits interstate commerce in
goods produced by substandard labor, but it directly forbids, with
penalties, the employment of labor in industrial production for
interstate commerce on other than certain prescribed terms. And in
United States _v._ Darby[15] this Act was sustained by the Court, in all
its sweeping provisions, on the basis of an opinion by Chief Justice
Stone which in turn is based on Chief Justice Marshall's famous opinions
in McCulloch _v._ Maryland and Gibbons _v._ Ogden rendered more than a
century and a quarter ago. In short, as a principle capable of
delimiting the national legislative power, the concept of Dual
Federalism as regards the present Court seems today to be at an end,
with consequent aggrandizement of national power.

There is, however, another side to the story. For in one respect even
the great Marshall has been in effect overruled in support of enlarged
views of national authority. Without essaying a vain task of "tithing
mint, anise and cummin," it is fairly accurate to say that throughout
the 100 years which lie between Marshall's death and the cases of the
1930's, the conception of the federal relationship which on the whole
prevailed with the Court was a competitive conception, one which
envisaged the National Government and the States as jealous rivals. To
be sure, we occasionally get some striking statements of contrary
tendency, as in Justice Bradley's opinion in 1880 for a divided Court in
the Siebold Case,[16] where is reflected recognition of certain results
of the War between the States; or later in a frequently quoted dictum by
Justice McKenna, in Hoke _v._ United States, in which the Mann White
Slave Act was sustained in 1913:

     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.[17]

The competitive concept is, nevertheless, the one much more generally
evident in the outstanding results for American Constitutional Law
throughout three-quarters of its history. Of direct pertinence in this
connection is the doctrine of tax exemption which converted federalism
into a principle of private immunity from taxation, so that, for
example, neither government could tax as income the official salaries
paid by the other government.[18] This doctrine traces immediately to
Marshall's famous judgment in McCulloch _v._ Maryland,[19] and bespeaks
a conception of the federal relationship which regards the National
Government and the States as bent on mutual frustration. Today the
principle of tax exemption, except so far as Congress may choose to
apply it to federal instrumentalities by virtue of its protective powers
under the necessary and proper clause, is at an end.

By the cooperative conception of the federal relationship the States and
the National Government are regarded as mutually complementary parts of
a single governmental mechanism all of whose powers are intended to
realize the current purposes of government according to their
applicability to the problem in hand. This is the conception on which
the recent social and economic legislation professes to rest. It is the
conception which the Court invokes throughout its decisions in
sustaining the Social Security Act of 1935 and supplementary state
legislation. It is the conception which underlies congressional
legislation of recent years making certain crimes against the States,
like theft, racketeering, kidnapping, crimes also against the National
Government whenever the offender extends his activities beyond state
boundary lines. The usually cited constitutional justification for such
legislation is that which was advanced forty years ago in the above
quoted Hoke Case.[20]

It has been argued that the cooperative conception of the federal
relationship, especially as it is realized in the policy of federal
subventions to the States, tends to break down state initiative and to
devitalize state policies. Actually, its effect has often been just the
contrary, and for the reason pointed out by Justice Cardozo in Helvering
_v._ Davis,[21] decided in 1937, namely, that the States, competing as
they do with one another to attract investors, have not been able to
embark separately upon expensive programs of relief and social
insurance. Another great objection to Cooperative Federalism is more
difficult to meet. This is, that Cooperative Federalism invites further
aggrandizement of national power. Unquestionably it does, for when two
cooperate, it is the stronger member of the combination who usually
calls the tunes. Resting as it does primarily on the superior fiscal
resources of the National Government, Cooperative Federalism has been,
at least to date, a short expression for a constantly increasing
concentration of power at Washington in the stimulation and supervision
of local policies.[22]

The last element of the concept of Federalism to demand attention is the
doctrine that the National Government is a government of enumerated
powers only, and consequently under the necessity at all times of
justifying its measures juridically by pointing to some particular
clause or clauses of the Constitution which, when read separately or in
combination, may be thought to grant power adequate to such measures. In
spite of such recent decisions as that in United States _v._ Darby, this
time-honored doctrine still guides the authoritative interpreters of the
Constitution in determining the validity of acts which are passed by
Congress in presumed exercise of its powers of domestic legislation--the
course of reasoning pursued by the Chief Justice in the Darby Case
itself is proof that such is the fact. In the field of foreign
relations, on the contrary, the doctrine of enumerated powers has always
had a difficult row to hoe, and today may be unqualifiedly asserted to
be defunct.

As early as the old case of Penhallow _v._ Doane, which was decided by
the Supreme Court in 1795, certain counsel thought it pertinent to urge
the following conception of the War Power:

     A formal compact is not essential to the institution of a
     government. Every nation that governs itself, under what form
     soever, without any dependence on a foreign power, is a
     sovereign state. In every society there must be a sovereignty.
     1 Dall. Rep. 46, 57. Vatt. B. 1. ch. 1. sec. 4. The powers of
     war form an inherent characteristic of national sovereignty;
     and, it is not denied, that Congress possessed those
     powers....[23]

To be sure, only two of the Justices felt it necessary to comment on
this argument, which one of them endorsed, while the other rejected it.

Yet seventy-five years later Justice Bradley incorporated closely
kindred doctrine into his concurring opinion in the Legal Tender
Cases;[24] and in the years following the Court itself frequently
brought the same general outlook to questions affecting the National
Government's powers in the field of foreign relations. Thus in the
Chinese Exclusion Case, decided in 1889, Justice Field, in asserting the
unlimited power of the National Government, and hence of Congress, to
exclude aliens from American shores, remarked:

     While under our Constitution and form of government the great
     mass of local matters is controlled by local authorities, the
     United States, in their relation to foreign countries and
     their subjects or citizens, are one nation, invested with the
     powers which belong to independent nations, the exercise of
     which can be invoked for the maintenance of its absolute
     independence and security throughout its entire territory.[25]

And four years later the power of the National Government to deport
alien residents at the option of Congress was based by Justice Gray on
the same general reasoning.[26]

Finally, in 1936, Justice Sutherland, speaking for the Court in United
States _v._ Curtiss-Wright Corporation, with World War I a still recent
memory, took over bodily counsel's argument of 140 years earlier, and
elevated it to the head of the column of authoritative constitutional
doctrine. He said:

     A political society cannot endure without a supreme will
     somewhere. Sovereignty is never held in suspense. When,
     therefore, the external sovereignty of Great Britain in
     respect of the colonies ceased, it immediately passed to the
     Union.... It results that the investment of the Federal
     government with the powers of external sovereignty did not
     depend upon the affirmative grants of the Constitution. The
     powers to declare and wage war, to conclude peace, to make
     treaties, to maintain diplomatic relations with other
     sovereignties, if they had never been mentioned in the
     Constitution, would have vested in the Federal government as a
     necessary concomitant of nationality.[27]

In short, the power of the National Government in the field of
international relationship is not simply a complexus of particular
enumerated powers; it is an inherent power, one which is attributable to
the National Government on the ground solely of its belonging to the
American People as a sovereign political entity at International Law. In
that field the principle of Federalism no longer holds, if it ever
did.[28]


II

The Separation of Powers

The second great structural principle of American Constitutional Law is
supplied by the doctrine of the Separation of Powers. The notion of
three distinct functions of government approximating what we today term
the legislative, the executive, and the judicial, is set forth in
Aristotle's Politics,[29] but it was the celebrated Montesquieu who, by
joining the idea to the notion of a "mixed constitution" of "checks and
balances", in Book XI of his Spirit of the Laws, brought Aristotle's
discovery to the service of the rising libertarianism of the eighteenth
century. It was Montesquieu's fundamental contention that "men entrusted
with power tend to abuse it". Hence it was desirable to divide the
powers of government, first, in order to keep to a minimum the powers
lodged in any single organ of government; secondly, in order to be able
to oppose organ to organ.

In the United States libertarian application of the principle was
originally not too much embarrassed by inherited institutions. In its
most dogmatic form the American conception of the Separation of Powers
may be summed up in the following propositions: (1) There are three
intrinsically distinct functions of government, the legislative, the
executive, and the judicial; (2) these distinct functions ought to be
exercised respectively by three separately manned departments of
government; which, (3) should be constitutionally equal and mutually
independent; and finally, (4) a corollary doctrine stated by Locke--the
legislature may not delegate its powers.[30]

Prior even to Franklin D. Roosevelt this entire colligation of ideas had
been impaired by three developments in national governmental practice:
first, the growth of Presidential initiative in legislation; secondly,
the delegation by Congress of legislative powers to the President;
thirdly, the delegation in many instances of like powers to so-called
independent agencies or commissions, in which are merged in greater or
less measure the three powers of government of Montesquieu's postulate.
Under Roosevelt the first two of these developments were brought to a
pitch not formerly approximated, except temporarily during World War I.

The truth is that the practice of delegated legislation is inevitably
and inextricably involved with the whole idea of governmental
intervention in the economic field, where the conditions to be regulated
are of infinite complexity and are constantly undergoing change. Granted
such intervention, it is simply out of the question to demand that
Congress should attempt to impose upon the shifting and complex scene
the relatively permanent molds of statutory provision, unqualified by a
large degree of administrative discretion. One of the major reasons
urged for governmental intervention is furnished by the need for gearing
the different parts of the industrial process with one another for a
planned result. In wartime this need is freely conceded by all; but its
need in economic crisis is conceivably even greater, the results sought
being more complex. So in the interest both of unity of design and of
flexibility of detail, presidential power today takes increasing toll
from both ends of the legislative process--both from the formulation of
legislation and from its administration. In other words, as a barrier
capable of preventing such fusion of presidential and congressional
power, the principle of the Separation of Powers does not appear to have
retained much of its original effectiveness; for on only one
occasion[31] prior to the disallowance, in Youngstown _v._ Sawyer,[32]
President Truman's seizure in April 1952 of the steel industry has the
Court been constrained to condemn, as in conflict with that principle, a
congressional delegation of legislative power. Indeed, its application
in the field of foreign relations has been virtually terminated by
Justice Sutherland's opinion in the Curtiss-Wright Case.[33]

The Youngstown Opinion appears to rest on the proposition that since
Congress could have ordered the seizure, e.g., under the necessary and
proper clause, the President, in making it on his own, usurped
"legislative power" and thereby violated the principle of the Separation
of Powers. In referring to this proposition, the Chief Justice (in his
dissenting opinion, for himself and Justices Reed and Minton) quoted as
follows from a 1915 brief of the then Solicitor General of the United
States on this same question:

     The function of making laws is peculiar to Congress, and the
     Executive can not exercise that function to any degree. But
     this is not to say that all of the _subjects_ concerning which
     laws might be made are perforce removed from the possibility
     of Executive influence. The Executive may act upon things and
     upon men in many relations which have not, though they might
     have, been actually regulated by Congress.

     In other words, just as there are fields which are peculiar to
     Congress and fields which are peculiar to the Executive, so
     there are fields which are common to both, in the sense that
     the Executive may move within them until they shall have been
     occupied by legislative action. These are not the fields of
     legislative prerogative, but fields within which the lawmaking
     power may enter and dominate whenever it chooses. This
     situation results from the fact that the President is the
     active agent, not of Congress, but of the Nation.[34]

Or, in more general terms, the fact that one of the three departments
may apply its distinctive techniques to a certain subject matter sheds
little or no light on the question whether one of the other departments
may deal with the same subject matter according to its distinctive
techniques. Indeed, were it otherwise, the action of the Court in
disallowing President Truman's seizure order would have been of very
questionable validity, inasmuch as the President himself conceded that
Congress could do so.

The conception of the Separation of Powers doctrine advanced in
Youngstown appears to have been an ad hoc discovery for the purpose of
disposing of that particular case.

To sum up the argument to this point: War, the Roosevelt-Truman
programs, and the doctrines of Constitutional Law on which they rest,
and the conception of governmental function which they incorporate, have
all tremendously strengthened forces which even earlier were making,
slowly, to be sure, but with "the inevitability of gradualness," for the
concentration of governmental power in the United States, first in the
hands of the National Government; and, secondly, in the hands of the
national Executive. In the Constitutional Law which the validation of
the Roosevelt program has brought into full being, the two main
structural elements of government in the United States in the past, the
principle of Dual Federalism and the doctrine of the Separation of
Powers, have undergone a radical and enfeebling transformation which war
has, naturally, carried still further.


III

A Government of Laws and Not of Men

The earliest repositories of executive power in this country were the
provincial governors. Being the point of tangency and hence of
irritation between imperial policy and colonial particularism, these
officers incurred a widespread unpopularity that was easily generalized
into distrust of their office. So when Jefferson asserted in his
_Summary View_, in 1774, that the King "is no more than the chief
officer of the people, appointed by the laws and circumscribed with
definite powers, to assist in working the great machine of
government,"[35] he voiced a theory of executive power which, impudently
as it flouted historical fact, had the support of the draftsmen of the
first American constitutions. In most of these instruments the governors
were elected annually by the legislative assemblies, were stripped of
every prerogative of their predecessors in relation to legislation, and
were forced to exercise the powers left them subject to the advice of a
council chosen also by the assembly, and from its own members if it so
desired. Finally, out of abundant caution the constitution of Virginia
decreed that executive powers were to be exercised "according to the
laws of" the Commonwealth, and that no power or prerogative was ever to
be claimed "by virtue of any law, statute or custom of England."
"Executive power", in short, was left entirely to legislative definition
and was cut off from all resources of the common law and the precedents
of English monarchy.

Fortunately or unfortunately, the earlier tradition of executive power
was not to be exorcised so readily. Historically, this tradition traces
to the fact that the royal prerogative was residual power, that the
monarch was first on the ground, that the other powers of government
were off-shoots from monarchical power. Moreover, when our forefathers
turned to Roman history, as they intermittently did, it was borne in
upon them that dictatorship had at one time been a normal feature of
republican institutions.

And what history consecrated, doctrine illumined. In Chapter XI of John
Locke's Second Treatise on Civil Government, from the pages of which
much of the opening paragraphs of the Declaration of Independence comes,
we read: "Absolute arbitrary power, or governing without settled
standing laws, can neither of them consist with the ends of society and
government".[36] In Chapter XIV of the same work we are told,
nevertheless, that "prerogative" is the power "to act according to
discretion without the prescription of the law and sometimes against
it"; and that this power belongs to the executive, it being "impossible
to foresee and so by laws to provide for all accidents and necessities
that may concern the public, or make such laws as will do no harm if
they are executed with inflexible rigor." Nor, continues Locke, is this
"undoubted prerogative" ever questioned, "for the people are very seldom
or never scrupulous or nice in the point" whilst the prerogative "is in
any tolerable degree employed for the use it was meant, that is, for the
good of the people."[37] A parallel ambivalence pervades both practice
and adjudication under the Constitution from the beginning.

The opening clause of Article II of the Constitution reads: "The
executive power shall be vested in a President of the United States of
America". The primary purpose of this clause, which made its appearance
late in the Convention and was never separately passed upon by it, was
to settle the question whether the executive branch should be plural or
single; a secondary purpose was to give the President a title. There is
no hint in the published records that the clause was supposed to add
cubits to the succeeding clauses which recite the President's powers and
duties in detail.

For all that, the "executive power" clause was invoked as a grant of
power in the first Congress to assemble under the Constitution, and
outside Congress in 1793. On the former occasion Madison and others
advanced the contention that the clause empowered the President to
remove without the Senate's consent all executive officers, even those
appointed with that consent, and in effect this view prevailed, to be
ratified by the Supreme Court 137 years later in the famous Oregon
Postmaster Case.[38]

In 1793 the protagonist of "executive power" was Alexander Hamilton, who
appealed to the clause in defense of Washington's proclamation of
neutrality, issued on the outbreak of war between France and Great
Britain. Prompted by Jefferson to take up his pen and "cut him to pieces
in face of public," Madison shifted position, and charged Hamilton with
endeavoring to smuggle the prerogative of the King of Great Britain into
the Constitution via the "executive power" clause.[39] Three years
earlier Jefferson had himself written in an official opinion as
Secretary of State: [The Executive branch of the government],
"possessing the rights of self-government from nature, cannot be
controlled in the exercise of them but by a law, passed in the forms of
the Constitution".[40]

This time judicial endorsement of the broad conception of the executive
power came early. In laying the foundation in Marbury _v._ Madison for
the Court's claim of power to pass on the constitutionality of acts of
Congress, Marshall said: "The government of the United States has been
emphatically termed a government of laws and not of men".[41] Two pages
along he added these words:

     By the constitution of the United States, the President is
     invested with certain important political powers, in the
     exercise of which he is to use his own discretion, and is
     accountable only to his country in his political character,
     and to his own conscience. To aid him in the performance of
     these duties, he is authorized to appoint certain officers,
     who act by his authority and in conformity with his orders.

     In such cases, their acts are his acts; and whatever opinion
     may be entertained of the manner in which executive discretion
     may be used, still there exists, and can exist, no power to
     control that discretion. The subjects are political. They
     respect the nation, not individual rights, and being entrusted
     to the executive, the decision of the executive is
     conclusive.[42]

From these words arises the doctrine of Political Questions, an escape
clause from the trammels of judicial review for high executive officers
in the performance of their discretionary duties. The doctrine was
continued, even expanded, by Marshall's successor. In Luther _v._
Borden,[43] decided in 1849, the Court was invited to review the
determination by the President that the existing government of Rhode
Island was "republican" in form. It declined the invitation, holding
that the decision of Congress and of the President as Congress's
delegate was final in the matter, and bound the courts. Otherwise said
Chief Justice Taney, the guarantee clause of the Constitution (Article
IV, section 4) "is a guarantee of anarchy and not of order". But a year
later the same Chief Justice, speaking again for the unanimous Court,
did not hesitate to rule that the President's powers as
commander-in-chief were purely military in character, those of any top
general or top admiral.[44] Hamilton had said the same thing in
Federalist No. 69.

Alongside the opinions of the Court of this period, however, stand
certain opinions of Attorneys General that yield a less balanced bill of
fare. For it is the case that, from the first down to the present year
of grace, these family lawyers of the Administration in power have
tended to favor expansive conceptions of presidential prerogative. As
early as 1831 we find an Attorney-General arguing before the Supreme
Court that, in performance of the trust enjoined upon him by the
"faithful execution" clause, the President "not only may, but ... is
bound to avail himself of every appropriate means not forbidden by
law."[45] Especially noteworthy is a series of opinions handed down by
Attorney-General Cushing in the course of the years 1853 to 1855. In one
of these the Attorney-General laid down the doctrine that a marshal of
the United States, when opposed in the execution of his duty by unlawful
combinations too powerful to be dealt with by the ordinary processes of
a federal court, had authority to summon the entire able-bodied force of
his precinct as a _posse comitatus_, comprising not only bystanders and
citizens generally but any and all armed forces,[46] which is precisely
the theory upon which Lincoln based his call for volunteers in April,
1861.

Also manifest is the debt of Lincoln's message of July 4, 1861, to these
opinions. Here in so many words the President lays claim to "the war
power", partly on the ground of his duty to "take care that the laws be
faithfully executed", partly in reliance on his powers as
Commander-in-Chief, incidentally furnishing thereby a formula which has
frequently reappeared in opinions of Attorneys-General in recent years.
Nor did Lincoln ever relinquish the belief that on the one ground or the
other he possessed extraordinary resources of power which Congress
lacked and the exercise of which it could not control--an idea in the
conscientious pursuit of which his successor came to the verge of utter
disaster.

When first confronted with Lincoln's theory in the Prize Cases,[47] in
the midst of war, a closely divided Court treated it with abundant
indulgence; but in _Ex parte_ Milligan[48] another closely divided Court
swung violently to the other direction, adopting the comfortable
position that the normal powers of the government were perfectly
adequate to any emergency that could possibly arise, and citing the war
just "happily terminated" in proof. But once again the principle of
equilibrium asserted itself. Five months after Milligan, the same Bench
held unanimously in Mississippi _v._ Johnson[49] that the President is
not accountable to any court save that of impeachment either for the
nonperformance of his constitutional duties or for the exceeding of his
constitutional powers.

This was in the 1866-1867 term of Court. Sixteen years later, in 1882,
Justice Samuel Miller gave classic expression to the principle of "a
government of laws and not of men" in these words: "No man is so high
that he is above the law.... All officers are creatures of the law and
are bound to obey it."[50] Eight years later this same great Judge
queried whether the President's duty to take care that the laws be
faithfully executed is "limited to the enforcement of acts of Congress
or of treaties according to their express terms," whether it did not
also embrace "the rights, duties, and obligations growing out of the
Constitution itself ... and all the protection implied by the nature of
the government under the Constitution."[51] Then in 1895, in the Debs
Case,[52] the Court sustained unanimously the right of the National
Executive to go into the federal courts and secure an injunction against
striking railway employees who were interfering with interstate
commerce, although it was conceded that there was no statutory basis for
such action. The opinion of the Court extends the logic of the holding
to any widespread public interest.

The great accession to presidential power in recent decades has been
accompanied by the breakdown dealt with earlier of the two great
structural principles of the American Constitutional System, the
doctrine of Dual Federalism and the doctrine of the Separation of
Powers. The first exponent of "the New Presidency", as some termed it,
was Theodore Roosevelt, who tells us in his _Autobiography_ that the
principle which governed him in his exercise of the presidential office
was that he had not only a right but a duty "to do anything that the
needs of the Nation demanded unless such action was forbidden by the
Constitution or by the laws."[53] In his book, _Our Chief Magistrate and
his Powers_, Ex-President Taft warmly protested against the notion that
the President has any constitutional warrant to attempt the role of a
"Universal Providence."[54] A decade earlier his destined successor,
Woodrow Wilson, had avowed the opinion that "the President is at
liberty, both in law and conscience, to be as big a man as he can".[55]

But it is the second Roosevelt who beyond all twentieth-century
Presidents succeeded in affixing the stamp both of personality and of
crisis upon the Presidency as it exists at this moment. In the solution
of the problems of an economic crisis, "a crisis greater than war", he
claimed for the National Government in general, and for the President in
particular, powers which they had hitherto exercised only on the
justification of war. Then when the greatest crisis in the history of
our international relations arose, he imparted to the President's
diplomatic powers new extension, now without consulting Congress, now
with Congress's approval; and when at last we entered World War II, he
endowed the precedents of both the War between the States and of World
War I with unprecedented scope.[56]

It is timely therefore to inquire whether American Constitutional Law
today affords the Court a dependable weapon with which to combat
effectively contemporary enlarged conceptions of presidential power.
Pertinent in this connection is the aforementioned recent action of the
Court in Youngstown _v._ Sawyer disallowing presidential seizure of the
steel industry. The net result of that Case is distinctly favorable to
presidential pretensions, in two respects: First, because of the failure
of the Court to traverse the President's finding of facts allegedly
justifying his action, an omission in accord with the doctrine of
Political Questions; secondly, the evident endorsement by a majority of
the Court of the doctrine that, as stated in Justice Clark's opinion:
"The Constitution does grant to the President extensive authority in
times of grave and imperative national emergency".[57] That the Court
would have sustained, as against the President's action, a clear-cut
manifestation of congressional action to the contrary is, on the other
hand, unquestionable. In short, if we are today looking for a check upon
the development of executive emergency government, our best reliance is
upon the powers of Congress, which can always supply needed gaps in its
legislation. The Court can only say "no", and there is no guarantee that
in the public interest it would wish to assume this responsibility.


IV

The Concept of Substantive Due Process of Law

A cursory examination of the pages of this volume reveals that fully a
quarter of them deal with cases in which the Court has been asked to
protect private interests of one kind or another against legislation,
most generally state legislation, 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 brief,
is to be found in the replacement of the original meaning of the due
process clause with a meaning of vastly greater scope. Judicial review
is always a function, so to speak, of the viable Constitutional Law of a
particular period.

From what has been previously said in this Introduction, it clearly
appears that the Court's interpretation of the Constitution has involved
throughout considerable lawmaking, but 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 to the final result. The modern concept of
substantive due process is not the achievement of any one American high
court; it is the joint achievement of several--in the end, of all.[58]

The thing which renders the due process clause an important datum of
American Constitutional Law is the role it has played first and last in
articulating certain theories of private immunity with the
Constitutional Document. The first such theory was Locke's conception of
the property right as anterior to government and hence as setting a
moral limit to its powers.[59] But while Locke'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
legislation directed against the Tories, embracing acts of confiscation,
bills of pains and penalties, even acts of attainder. A second exhibit
of the same kind is furnished by the flood of paper money laws and other
measures of like intent which the widespread debtor class forced through
the great majority of the state assemblies in the years following the
general collapse of values in 1780.

The most important reaction of the creditor interest to this course of
legislation was its energetic part in bringing about the Philadelphia
Convention. Closer, however, to our purpose is the leadership taken by
the new federal judiciary in asserting the availability against
predatory state legislation of extra-constitutional principles 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 the social
compact".[60] Three years later, Justice Chase proclaimed from the
Supreme Bench itself, with characteristic emphasis, his rejection of the
idea that state legislative power was absolute unless its authority was
"expressly restrained" by the constitution of the State.[61] He too was
thinking primarily of the rights of property.

To dicta such as these constantly accrued others of like tenor from
various high state courts, the total of which had come to comprise prior
to the War between the States an impressive body of coherent doctrine
protective of vested rights but claiming little direct support from
written constitutional texts. This indeed was its weakness. For the
question early obtruded 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 right against legislative power was to be
waived, it must be rested on some clause of the constitutional document;
and, inasmuch as the due process clause and the equivalent law of the
land clause of certain of the early state constitutions were the only
constitutional provisions which specifically mentioned property, they
were the ones selected for the purpose.

The absorptive powers of the law of the land clause, the precursor in
the original state constitutions of the historically synonymous due
process clause, was foreshadowed as early as 1819 in a dictum by
Justice William Johnson of the United States Supreme Court:

     As to the words from Magna Charta ... after volumes spoken and
     written with a view to their exposition, the good sense of
     mankind has at length settled down to this: that they were
     intended to secure the individual from the arbitrary exercise
     of the powers of government, unrestrained by the established
     principles of private rights and distributive justice.[62]

Thirty-eight years later, in 1857, the prophecy of these words was
realized in the famous Dred Scott Case,[63] in which Section 8 of the
Missouri Compromise, whereby 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 law, but because the
Court regarded it as unjust to forbid people to take their slaves, or
other property, into the territories, the common property of all the
States.

Meanwhile, in the previous year (1856) the recently established Court of
Appeals of New York had, in the landmark case of Wynehamer _v._
People,[64] set aside a state-wide prohibition law as comprising, with
regard to liquors in existence at the time of its going into effect, an
act of destruction of property not within the power of government to
perform "even by the forms of due process of law". The term due process
of law, in short, simply drops out of the clause, which comes to read
"no person shall be deprived 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 of the
constitution, which will not also, and by an easier induction, bring it
in direct conflict with the constitution itself."[65] Thus it was
foreshadowed that the law of the land and the due process of law
clauses, which were originally inserted in our constitutions to
consecrate a specific mode of trial in criminal cases, to wit, the grand
jury, petit jury process of the common law, would be transformed into a
general restraint upon substantive legislation capable of affecting
property rights detrimentally.

It is against this background that the adoption of the Fourteenth
Amendment in 1868 must be projected. Applied, as in the Dred Scott and
Wynehamer cases, the clause which forbids any State "to deprive any
person of life, liberty or property without due process of law"
proffered 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 rights
protected by the Amendment, to encourage Congress to take over, under
the fifth section of the Amendment, the regulation of all civil rights.
"The federal equilibrium" had already been sufficiently disturbed by the
results of the War between the States and Reconstruction.[66]

But this self-denying ordinance, which never had the support of more
than a very narrow majority of the Court, soon began to crumble at the
edges. It was a period of immense industrial expansion, and the men who
directed this wanted a free hand. In 1878 the American Bar Association
was formed from the elite of the American Bar. Organized as it was in
the wake of the "barbarous" decision--as one member termed 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 Political Economy and Herbert
Spencer's highly sentimentalized version of the doctrine of evolution,
just then becoming the intellectual vogue; plus a "booster"--in the
chemical sense--from Sir Henry Maine's _Ancient Law_, first published in
1861. I refer to Maine's famous dictum that "the movement of the
progressive societies has hitherto been a movement from _Status to
Contract_". If hitherto, why not henceforth?[68]

In short, the American people were presented, overnight as it were, with
a new doctrine of Natural Law. Encouraged by certain dicta of dissenting
Justices of the Supreme Court, a growing procession of high State
courts--those of New York, Pennsylvania, Illinois, and Massachusetts,
leading the way--now began infiltrating 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
persons twenty-one years of age, whether they were employers or
employees, in the making of business contracts, far from being
presumptively constitutional, must be justified by well known facts of
which the court was entitled to take judicial notice; otherwise it fell
under the ban of the due process clause.[69]

At last, in 1898, the Supreme Court at Washington, following some
tentative gestures in that direction, accepted the new dispensation
outright. In Smyth _v._ Ames decided that year, partially overturning
Munn _v._ Illinois, it gave notice 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 for the Court's
constitutional jurisdiction is roughly indicated by the fact that
whereas it had decided 134 cases under the Amendment during the thirty
preceding years, in the ensuing thirteen years it decided 430 such
cases.[71]

For more than a generation now the Court became the ultimate guardian,
in the name of the Constitutional Document, of the _laissez-faire_
conception of the proper relation of Government to Private Enterprise, a
rather inconstant guardian, however, for 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 Court not only subordinated the freedom of employers to
contract to the freedom of employees to organize, but intimated broadly
that liberty in some of its phases is much more dependent upon
legislative implementation that upon judicial protection.[72]

In contrast to this withdrawal, however, has been the Court's projection
of another segment of "liberty" into new territory. In Gitlow _v._ New
York,[73] decided in 1925, even in sustaining an antisyndicalist
statute, the Court adopted _arguendo_ the proposition which it had
previously rejected, that "liberty" in Amendment XIV renders available
against the States the restraints which Amendment I imposes on Congress.
For fifteen 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, this result was held to be required by "the preferred
position" of some of these freedoms in the hierarchy of constitutional
values; an idea to which certain other Justices demurred. The result to
date has been a series of holdings the net product of which for our
Constitutional Law is at this juncture difficult to estimate; and the
recent decision in Dennis _v._ United States under Amendment I augments
the difficulty.[74]

A passing glance will suffice for the operation of the due process
clause of Amendment V in the domain of foreign relations and the War
Power. The reader has only to consult in these pages such holdings as
those in Belmont _v._ United States, Yakus _v._ United States, Korematsu
_v._ United States, to be persuaded that even the Constitution is no
exception to the maxim, _inter arma silent leges_.[75]

In short, the substantive doctrine of due process of law does not today
support judicial intervention in the field of social and economic
legislation in anything like the same measure that it did, first in the
States, then through the Supreme Court on the basis of Amendment XIV, in
the 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 parochial despotisms and petty tyrannies. Yet even in this
respect, as certain recent decisions have shown, the Court can often act
more effectively on the basis of congressional legislation implementing
the Amendment than when operating directly on the basis of the Amendment
itself.[76]


Resume

Considered for the two fundamental subjects of the powers of government
and the liberties of individuals, interpretation of the Constitution by
the Supreme Court falls into four tolerably distinguishable periods. The
first, which reaches to the death of Marshall, is the period of the
dominance of the Constitutional 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 that the
historicity of a particular theory concerning the Constitution is
necessarily a matter of critical concern save to students of history. It
is only to say that the theories which Marshall urged in support of his
preferences were, in fact, frequently verifiable as theories of the
framers of the Constitution.

The second period is a lengthy one, stretching from the accession of
Chief Justice Taney in 1835 to, say, 1895. It is the period _par
excellence_ of Constitutional Theory. More and more the constitutional
text fades into the background, and the testimony of the _Federalist_,
Marshall's sole book of precedents, 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 as Freedom of
Contract, and still others. The sources of some of these doctrines and
the nature of the interests benefited by them have been indicated
earlier in these pages. Their net result was to put the national
law-making power into a strait-jacket so far as the regulation of
business was concerned.

The third period was that of Judicial Review pure and simple. The Court,
as heir to the accumulated doctrines of its predecessors, found itself
for the time being in possession of such a variety of instruments of
constitutional exegesis that it was often able to achieve almost any
result in the field of constitutional interpretation which it considered
desirable, and that without flagrant departure from judicial good form.
Indeed, it is altogether apparent that the Court was in actual
possession and in active exercise of 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 Senate debate on Mr. Hughes' nomination for Chief Justice,
in 1930, declared that the Supreme Court had become "economic dictator
in the United States". Some of the Justices concurred in these
observations, especially Justices Holmes and Brandeis. Asserted the
latter, the Court has made itself "a super-legislature" and Justice
Holmes could discover "hardly any limit but the sky" to the power
claimed by the Court to disallow State acts "which may happen to strike
a majority [of its members] as for any reason undesirable".[77]

The fourth period is still with us. It was ushered in by World War I,
but its results were consolidated and extended during the 1930's, and
have been subsequently still further enlarged and confirmed by World War
II and the "cold war". Many of these results have been treated above.
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 base in the
direction of a consolidated national power; within the National
Government itself there has been an increased flow of power in the
direction of the President; even judicial enforcement of the Bill of
Rights has faltered at times, in the presence of national emergency.

In this situation judicial review as exercised by the Supreme Court does
not cease being an important technique of government under the
Constitution, but its field of operation has contracted. The purpose
which it serves more and more exclusively is the purpose for which it
was originally created to serve, the maintenance of the principle of
National Supremacy. But in fact, this is the purpose which it has always
served predominantly, even in 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 content of the Federal Bill
of Rights; secondly, the extension of national legislative power,
especially along the route of the commerce clause, into the field of
industrial regulation, with the result of touching state legislative
power on many more fronts than ever before; thirdly, the integration of
the Nation's industrial life, which has brought to the National
Government a major responsibility for the maintenance of a functioning
social order.

Forty years ago the late Justice Holmes said:

     "I do not think the United States would come to an end if we
     [the Court] lost our power to declare an Act of Congress void.
     I do think the Union would be imperiled if we could not make
     that declaration as to the laws of the several States".[78]

By and large, this still sizes up the situation.

Edward S. Corwin.
_January, 1953._


Notes

[1] _Cong. Record_, vol. 23, p. 6516.

[2] _The Genessee Chief_, 12 How. 443 (1851), overturning _The Thomas
Jefferson_, 10 Wheat. 428 (1825).

[3] Knox _v._ Lee, 12 Wall. 457 (1871); Hepburn _v._ Griswold, 8 Wall.
603 (1870).

[4] Pollock _v._ Farmers' Loan & Trust Co., 157 U.S. 429; Same, 158 U.S.
601.

[5] _Cong. Record_, vol. 78, p. 5358.

[6] Smith _v._ Allwright, 321 U.S. 649, 665.

[7] Ibid. 669.

[8] _The Supreme Court in United States History_, III, 470-471 (1922).

[9] The Dartmouth College Case (1819) occupies 197 pages of 4 Wheaton;
Gibbons _v._ Ogden (1824), 240 pages of 9 Wheaton; The Charles River
Bridge case (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_ Milligan (1866), 140 pages of 4 Wallace; the first
Pollock Case (1895), 325 pages of 157 U.S.; Myers _v._ United States
(1926), 243 pages of 272 U.S.

[10] Max Farrand, _The Records of the Federal Convention of 1787_, III,
240-241 (1911).

[11] See Taney's words in 5 How. 504, 573-574 (1847), and 7 How. 283,
465-70 (1849).

[12] 21 How. 506, 520-521 (1859).

[13] 295 U.S. 495 (1935); 298 U.S. 238 (1936).

[14] 298 U.S. 238, 308-309.

[15] 312 U.S. 100 (1941).

[16] 100 U.S. 371.

[17] 227 U.S. 308, 322.

[18] Dobbins _v._ Commsrs., 16 Pet. 435 (1842); Collector _v._ Day, 11
Wall. 113. (1870).

[19] 4 Wheat. 316, 431 (1819).

[20] For references and further details, see E.S. Corwin, _Court over
Constitution_, 129-176 (1938).

[21] [Transcriber's Note: Footnote 21 is missing from original text.]

[22] In this connection, _see_ Oklahoma _v._ Civil Service Comm'n., 330
U.S. 127, 142-145 (1947).

[23] 3 Dall. 54, 74.

[24] 12 Wall. 457, 555 (1871).

[25] 130 U.S. 581, 604.

[26] Fong Yue Ting, 149 U.S. 698 (1893).

[27] 299 U.S. 304, 316-318.

[28] _See also_ University of Illinois _v._ United States, 289 U.S. 48,
59 (1933). In Lichter _v._ United States, 334 U.S. 742, 782 (1948),
Justice Burton, speaking for the Court, 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
that it shall be an effective power to wage war successfully", which
looks very like an attempt to duck the doctrine of an inherent war power
while appropriating its results.

[29] Welldon (tr.), Book VI, chap. XIV (1888). Jowett and some others
propose a different arrangement.

[30] John Locke. The Second Treatise on Civil Government, Sec. 141. For
the historical background of this principle, see P.W. Duff and H.E.
Whiteside, "_Delegata Potestas Non P[=o]test Delegari_", _Selected
Essays on Constitutional Law_, IV, 291-316 (1938).

[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter Corp.
_v._ United States, 295 U.S. 495 (1935).

[32] 343 U.S. 579 (1952).

[33] 299 U.S. 304, 327-329.

[34] 343 U.S. 579, 690.

[35] Andrew C. McLaughlin, _A Constitutional History of the United
States_, 81 (1935).

[36] Locke, op. cit., Sec. 137.

[37] Ibid., Sec. 159-161.

[38] Meyers _v._ United States, 272 U.S. 52 (1926).

[39] For the famous debate between "Pacificus" (Hamilton) and
"Helvidius" (Madison), see E.S. Corwin, _The President's Control of
Foreign Relations_, chap. I (1917).

[40] Writings of Thomas Jefferson, V, 209 (P.L. Ford, ed.; 1895).

[41] 1 Cr. 137, 163 (1803).

[42] Ibid., 165-166.

[43] 7 How. 1.

[44] Fleming _v._ Page, 9 How. 602 (1850).

[45] United States _v._ Tingy, 5 Pet. 115, 122.

[46] 6 _Op. Atty. Gen._ 466 (1854).

[47] 2 Black 635 (1863).

[48] 4 Wall. 2 (1866).

[49] 4 Wall. 475 (1866).

[50] United States _v._ Lee, 106 U.S. 196, 220.

[51] In Re Neagle, 135 U.S. 1, 64.

[52] 158 U.S. 564.

[53] _Autobiography_, 388-389 (1913).

[54] _Op. cit._, 144 (1916).

[55] _Constitutional Government in the United States_, 70 (1908).

[56] _See_ E.S. Corwin. _Total War and the Constitution_, 35-77 (1947).

[57] 343 U.S. 579, 662.

[58] _See_ E.S. Corwin. _Liberty Against Government_, Chaps. III, IV
(1948).

[59] "... the supreme power cannot take from any man any part of his
property without his consent". _Second Treatise_, Sec. 138.

[60] Van Home's Lessee _v._ Dorrance, 2 Dall. 304, 310 (1795).

[61] Calder _v._ Bull, 3 Dall. 386, 388-389 (1798). _See also_ Loan
Association _v._ Topeka, 20 Wall. 655 (1875).

[62] Bank of Columbia _v._ Okely, 4 Wheat. 235, 244.

[63] Scott _v._ Sandford, 19 How. 393, 450 (1857).

[64] 13 N.Y. 378 (1856).

[65] Ibid. 390-392. The absolute veto of the Court of Appeals in the
Wynehamer case was replaced by the Supreme Court, under the due process
clause of the Fourteenth Amendment, 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,
namely, the promotion of the public health, safety and morals. _See_
Mugler _v._ Kansas, 123 U.S. 623 (1887); and for a transitional case,
Bartemeyer _v._ Iowa, 18 Wall. 129 (1874).

[66] The Slaughter House Cases, 16 Wall. 36, 78-82 (1873). The opinion
of the Court was focused principally on the privileges and immunities
clause, and the narrow 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 clause, and the former's
interpretation of it may be fairly regarded as the first step toward the
translation by the Court of "liberty" as Freedom on Contract.

[67] 94 U.S. 113 (1876).

[68] Benjamin R. Twiss, _Lawyers and the Constitution, How Laissez Faire
Came to the Supreme Court_, 141-173 (1942).

[69] _See_ especially Lochner _v._ New York, 198 U.S. 45 (1905); and
Adkins _v._ Children's Hospital, 261 U.S. 525 (1923).

[70] 169 U.S. 466; ibid. 366.

[71] _See_ Charles W. Collins, _The Fourteenth Amendment and the
States_, 188-206 (1912).

[72] Labor Board _v._ Jones & Laughlin, 301 U.S. 1, 33-34; West Coast
Hotel Co. _v._ Parrish, 300 U.S. 379, 391-392.

[73] 268 U.S. 652, 666; _cf._ Prudential Ins. Co. _v._ Cheek, 259 U.S.
530, 543 (1922).

[74] The subject can be pursued in detail in connection with Amendment
I, pp. 769-810.

[75] These cases are treated in the text, _see_ Table of Cases.

[76] _See_ Williams _v._ United States, 341 U.S. 97 (1951).

[77] _See:_ Oliver Wendell Holmes, _Collected Legal Papers_, 239,
295-296 (1920); Merlo J. Pusey, _Charles Evans Hughes_, I, 203-206
(1951). Burns Baking Co. _v._ Bryan, 204 U.S. 504, 534 (1924); Baldwin
_v._ Missouri, 281 U.S. 586, 595 (1930); _American Political Science
Review_, 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 law". _The
American Judge_, 6, 8 (1924). Substantially contemporaneously a well
read French critic described our system as _Le Gouvernment des Juges_
(1921); while toward the end of the period Louis B. Boudin published his
well known _Government by Judiciary_ (2 vols., 1932).

[78] _Collected Legal Papers_, 295-296.




CONTENTS

[For contents in detail, see tables at beginning of each article and
amendment]


                                                                Page
Prefaces                                                      III, V
Editor's forward                                                 VII
Editor's introduction                                             IX
Historical note on formation of the Constitution                   9
Text of the Constitution (literal print)                          17
Text of the amendments (literal print)                            37
The Constitution, with annotations                                55
    The preamble                                                  59
    Article I.   Legislative Department:
        Section  1. The Congress                                  71
                 2. House of Representatives                      87
                 3. Senate                                        91
                 4. Elections and meetings                        92
                 5. Legislative proceedings                       95
                 6. Rights of Members                             99
                 7. Bills and resolutions                        101
                 8. Powers of Congress                           105
                 9. Powers denied to Congress                    312
                10. Powers denied to the States                  325
    Article II.  Executive Department:
        Section  1. The President                                377
                 2. Powers and duties of the President           389
                 3. Miscellaneous powers and duties of the
                    President                                    462
                 4. Impeachment                                  501
    Article III. Judicial Department:
        Section  1. The judges, their terms, and compensation    511
                 2. Jurisdiction                                 538
                 3. Treason                                      638
    Article IV.  Federal relations:
        Section  1. Full faith and credit given in each State    647
                 2. Citizens                                     686
                 3. New States and government of Territory,
                    etc.                                         697
                 4. Form of State government                     704
    Article V.   Mode of amendment                               707
    Article VI.  Miscellaneous provisions                        717
    Article VII. Ratification                                    741
Amendments to the Constitution:
    Amendment  1. Religion, free speech, etc.                    753
               2. Bearing arms                                   811
               3. Quartering soldiers                            815
               4. Searches and seizures                          819
               5. Rights of persons                              833
               6. Rights of accused in criminal prosecutions     873
               7. Civil trials                                   887
               8. Punishment for crime                           899
               9. Rights retained by the people                  907
              10. Reserved State powers                          911
              11. Suits against States                           923
              12. Election of President, etc.                    937
              13. Slavery and involuntary servitude              945
                  Section 1. Prohibition of slavery and
                             involuntary servitude               949
                          2. Power of Congress                   949
              14. Rights of citizens                             955
                  Section 1. Citizenship; due process; equal
                             protection                          963
                          2. Apportionment of representation    1170
                          3. Disqualification of officers       1173
                          4. Public debt; claims for loss of
                             slaves                             1174
                          5. Enforcement                        1175
              15. Right of citizens to vote                     1179
                  Section 1. Suffrage not to be abridged for
                             race, color, etc.                  1183
                          2. Power of Congress                  1183
              16. Income tax                                    1187
              17. Popular election of Senators                  1203
              18. Prohibition of intoxicating liquors           1209
                  Section 1. Prohibition of intoxicating
                             liquors                            1213
                          2. Concurrent power to enforce        1213
                          3. Time limit on ratification         1213
              19. Equal suffrage                                1215
              20. Commencement of the terms of the President,
                    Vice President, and Members of Congress,
                    etc.                                        1221
                  Section 1. Commencement of terms of President,
                             Vice President, Senators, and
                             Representatives                    1225
                          2. Meeting of Congress                1225
                          3. Death or disqualification of
                             President elect                    1225
                          4. Congress to provide for case
                             wherein death occurs among those
                             from whom House chooses a
                             President                          1225
                          5. Date of effect                     1226
                          6. Time limit on ratificn             1226
              21. Repeal of Eighteenth Amendment                1227
                  Section 1. Repeal of prohibition              1231
                          2. Transportation into States
                             prohibited                         1231
                          3. Time limit on ratification         1231
              22. Presidential Tenure                           1235
                  Section 1. Restriction on Number of terms     1237
                          2. Time limit on ratification         1237
Acts of Congress held unconstitutional in whole or in part by
  the Supreme Court of the United States                        1239
Table of Cases                                                  1257
Index                                                           1337




THE CONSTITUTION OF THE UNITED STATES OF AMERICA


HISTORICAL NOTE ON FORMATION OF THE CONSTITUTION

In June 1774, the Virginia and Massachusetts assemblies independently
proposed an intercolonial meeting of delegates from the several colonies
to restore union and harmony between Great Britain and her American
Colonies. Pursuant to these calls there 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. In that instrument, addressed to His Majesty and to the people
of Great Britain, there was embodied a statement of rights and
principles, many of which were later to be incorporated in the
Declaration of Independence and the Federal Constitution.[a]

This Congress adjourned in October with a recommendation that another
Congress be held in Philadelphia the following May. Before its successor
met, the battle of Lexington had been fought. In Massachusetts the
colonists had organized their own government 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 Georgia. It became a _de facto_ government: it called
upon the other colonies to assist in the defense of Massachusetts; it
issued bills of credit; it took steps to organize a military force, and
appointed George Washington commander in chief of the Army.

While the declaration of the causes and necessities of taking up arms of
July 6, 1775,[b] expressed a "wish" to see the union between Great
Britain and the colonies "restored", sentiment for independence was
growing. Finally, on May 15, 1776, Virginia instructed her delegates to
the Continental Congress to have that body "declare the united colonies
free and independent States."[c] Accordingly 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 July 4, 1776; the preparation of a plan of confederation was
postponed. It was not until November 17, 1777, that the Congress was
able to agree on a form of government which stood some chance of being
approved by the separate States. The Articles of Confederation were then
submitted to the several States, and on July 9, 1778, were finally
approved by a sufficient number to become operative.

Weaknesses inherent in the Articles of Confederation became apparent
before the Revolution out of which that instrument was born had been
concluded. Even before the thirteenth State (Maryland) conditionally
joined the "firm league of friendship" 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
amounts were not forthcoming. To remedy this defect, Congress applied to
the States for power to lay duties and secure the public debts. Twelve
States agreed to such an amendment, but Rhode Island refused her
consent, thereby defeating the proposal.

Thus was emphasized a second weakness in the Articles of Confederation,
namely, the _liberum veto_ which each State possessed whenever
amendments 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 the approval of 9 States. With several delegations
often absent, one or two States were able to defeat legislative
proposals of major importance.

Other imperfections in the Articles of Confederation also proved
embarrassing. Congress could, for example, negotiate treaties with
foreign powers, but all treaties had to be ratified by the several
States. Even when a treaty was approved, Congress lacked authority to
secure obedience to its stipulations. Congress could not act directly
upon the States or upon individuals. Under such circumstances foreign
nations doubted the value of a treaty with the new republic.

Furthermore, Congress had no authority to regulate foreign or interstate
commerce. Legislation in this field, subject to unimportant exceptions,
was left to the individual States. Disputes between States with common
interests in the navigation of certain rivers and bays were inevitable.
Discriminatory regulations were followed by reprisals.

Virginia, recognizing the need for an agreement with Maryland respecting
the navigation and jurisdiction of the Potomac River, appointed in June
1784, four commissioners to "frame such liberal and equitable
regulations concerning the said river as may be mutually 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 which lies within the limits of Virginia, and over
the rivers Potomac and Pocomoke" with full power on behalf of Maryland
"to adjudge and settle the jurisdiction to be exercised by the said
States, respectively, over the waters and navigations of the same."[f]

At the invitation of Washington the commissioners met at Mount Vernon,
in March 1785, and drafted a compact which, in many of its details
relative to the navigation and jurisdiction of the Potomac, is still in
force.[g] What is more important, the commissioners submitted to their
respective States a report in favor of a convention of all the States
"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 States; to consider how far a uniform system in their commercial
regulations may be necessary to their common interest and their
permanent harmony; and to report to the several States, such an act
relative to this great object, as when unanimously ratified by them,
will enable the United States in Congress, effectually to provide for
the same."[h]

This proposal for a general trade convention seemingly met with general
approval; nine States appointed commissioners. Under the leadership of
the Virginia delegation, which included Randolph and Madison, Annapolis
was accepted as the place and the first Monday in September 1786 as the
time for the convention. The attendance at Annapolis proved
disappointing. 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 views, the Annapolis delegates unanimously submitted to
their respective States a report in which they suggested that a
convention of representatives from all the States meet at Philadelphia
on the second Monday in May 1787 to examine the defects in the existing
system of government and formulate "a plan for supplying such defects as
may be discovered."[i]

The Virginia legislature acted promptly upon this recommendation and
appointed a delegation to go to Philadelphia. Within a few weeks New
Jersey, Pennsylvania, North Carolina, Delaware, and Georgia also made
appointments. New York and several other States hesitated on the ground
that, without the consent of the Continental Congress, the work of the
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
Philadelphia "for the sole and express purpose of revising the Articles
of Confederation and reporting to Congress and the several legislatures
such alterations and provisions therein as shall when agreed to in
Congress and confirmed by the States render the Federal Constitution
adequate to the exigencies of Government and the preservation of the
Union."

Thereupon, the remaining States, Rhode Island alone excepted, appointed
in due course delegates to the Convention, and Washington accepted
membership on the Virginia delegation.

Although scheduled to convene on May 14, 1787, it was not until May 25
that enough delegates were present to proceed with the organization of
the Convention. Washington was elected as presiding officer. It was
agreed that the sessions were to be strictly secret.

On May 29 Randolph, on behalf of the Virginia delegation, submitted to
the convention 15 propositions as a plan of government. Despite the fact
that the delegates were limited by their instructions 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 branches of government; under the Articles
executive, legislative, and judicial powers were vested in the Congress.
Furthermore the legislature was to consist of two houses rather than
one.

On May 30 the Convention went into a committee of the whole to consider
the 15 propositions of the Virginia plan _seriatim_. These discussions
continued until June 13, when the Virginia resolutions in amended form
were reported out of committee. They provided for proportional
representation in both houses. The small States were dissatisfied.
Therefore, on June 14 when the Convention 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 debate
followed. On June 19 the States rejected the New Jersey plan and voted
to proceed with a discussion of the Virginia plan. The small States
became more and more discontented; there were threats of withdrawal. On
July 2 the convention was deadlocked over giving each State an equal
vote in the upper house--five States in the affirmative, five in the
negative, one divided.[j]

The problem was referred to a committee of 11, there being 1 delegate
from each State, to effect a compromise. On July 5 the committee
submitted its report, which became the basis for the "great compromise"
of the convention. It was recommended that in the upper house each State
should 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 motion of Gouverneur Morris of Pennsylvania that direct
taxation should also be in proportion to representation, was adopted, a
crisis had been successfully surmounted. A compromise spirit began to
prevail. The small States were now willing to support a strong national
government.

Debates on the Virginia resolutions continued. The 15 original
resolutions had been expanded into 23. Since these resolutions were
largely declarations of principles, on July 24 a committee of five[k]
was selected to draft a detailed constitution embodying the fundamental
principles which had thus far been approved. 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
other available material. On the whole the report of the committee
conformed to the resolutions adopted by the Convention, though on many
clauses the members of the committee left the imprint of their
individual and collective judgments. In a few instances the committee
avowedly exercised considerable discretion.

From August 6 to September 10 the report of the committee of detail was
discussed, section by section, clause by clause. Details were attended
to, further compromises were effected. Toward the close of these
discussions, on September 8, another committee of five[l] was appointed
"to revise the style of and arrange the articles which had been agreed
to by the house."

On Wednesday, September 12 the report of the committee of style was
ordered printed for the convenience of the delegates. The Convention for
3 days compared this report with the proceedings of the Convention. The
Constitution was ordered engrossed on Saturday, September 15.

The Convention met on Monday, September 17, for its final session.
Several of the delegates were disappointed in the result. A few deemed
the new Constitution a mere makeshift, a series of unfortunate
compromises. The advocates of the Constitution, realizing the impending
difficulty of obtaining the consent 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 appear to be
unanimous, Gouverneur Morris devised the formula "Done in Convention, by
the unanimous consent of the States present the 17th of September * * *
In witness whereof we have hereunto subscribed our names." Thirty-nine
of the forty-two delegates present thereupon "subscribed" to the
document.[m]

The Convention had been called to revise the Articles of Confederation.
Instead, it reported to the Continental Congress a new Constitution.
Furthermore, while the Articles specified that no amendments should be
effective until approved by the legislatures of all the States, the
Philadelphia Convention suggested that the new Constitution should
supplant the Articles of Confederation when ratified by conventions in
nine States. For these reasons, it was feared that the new Constitution
might arouse opposition in Congress.

Three members of the Convention--Madison, Gorham, and King--were also
Members of Congress. They proceeded at once to New York, where Congress
was in session, to placate the expected opposition. Aware of their
vanishing authority, Congress on September 28, after some debate,
decided to submit the Constitution to the States for action. It made no
recommendation for or against adoption.

Two parties soon developed, one in opposition and one in support of the
Constitution, and the Constitution was debated, criticized, and
expounded clause by clause. Hamilton, Madison, and Jay 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 the conferring of additional powers on
the central government can scarcely be exaggerated. In some States
ratification was effected only after a bitter struggle in the State
convention itself.

Delaware, on December 7, 1787, became the first State to ratify the new
Constitution, the vote being unanimous. Pennsylvania ratified on
December 12, 1787, by a vote of 46 to 23, a vote scarcely indicative of
the struggle which had taken place in that State. New Jersey ratified on
December 19, 1787, and Georgia on January 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
the States from Federal encroachment on individual liberties. Maryland
ratified on April 28, 1788; yeas 63, nays 11. South Carolina ratified on
May 23, 1788; yeas 149, nays 73. On June 21, 1788, by a vote of 57 to
46, New Hampshire became the ninth State to ratify, but like
Massachusetts she suggested a bill of rights.

By the terms of the Constitution nine States were sufficient for its
establishment among the States so ratifying. The advocates of the new
Constitution realized, however, that the new government could not
succeed without the addition of New York and Virginia, 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 delegates as George Mason and Patrick Henry. In New
York an attempt to attach conditions to ratification almost succeeded.
But on July 26, 1788, New York ratified, with a recommendation that a
bill of rights be appended. The vote was close--yeas 30, nays 27.

Eleven States having thus ratified the Constitution,[o] the Continental
Congress--which still functioned at irregular intervals--passed a
resolution on September 13, 1788, to put the new Constitution into
operation. The 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 opening session of the new Congress. Owing to various
delays, Congress was late in assembling, and it was not until April 30,
1789, that George Washington was inaugurated as the first President of
the United States.


Notes

[a] The colonists, for example, claimed the right "to life, liberty, and
property", "the rights, liberties, and immunities of free and
natural-born subjects within the realm of England"; the right to
participate in legislative councils; "the great and inestimable
privilege of being tried by their peers of the vicinage, according to
the course of [the common law of England]"; "the immunities 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 "indispensably necessary to good
government, and rendered essential by the English constitution, that the
constituent branches of the legislature be independent of each other";
that certain acts of Parliament in contravention of the foregoing
principles were "infringements and violations of the rights of the
colonists." (Text in Documents Illustrative of the Formation of the
Union, pp. 1-5.)

[b] Text in Documents Illustrative of the Formation of the Union, pp.
10-17.

[c] Ibid., pp. 19-20.

[d] Ibid., p. 21.

[e] George Mason, Edmund Randolph, James Madison, and Alexander
Henderson were appointed commissioners for Virginia; Thomas Johnson,
Thomas Stone, Samuel Chase, and Daniel of St. Thomas Jenifer for
Maryland.

[f] The text of the resolutions is to be found in 153 U.S. 162-163.

[g] See Wharton _v._ Wise, 153 U.S. 155 [1894].

[h] Text in Documents Illustrative of the Formation of the Union, p. 38.

[i] Ibid., pp. 39-43.

[j] The New Hampshire delegation did not arrive until July 23, 1787.

[k] Rutledge of South Carolina, Randolph of Virginia, Gorham of
Massachusetts, Ellsworth of Connecticut, and Wilson of Pennsylvania.

[l] William Samuel Johnson of Connecticut, Alexander Hamilton of New
York, Gouverneur Morris of Pennsylvania, James Madison of Virginia, and
Rufus King, of Massachusetts.

[m] At least 65 persons had received appointments as delegates to the
Convention; 55 actually attended at different times during the course of
the proceedings; 39 signed the document. It has been estimated that
generally fewer than 30 delegates attended the daily sessions. For
further details respecting the Convention of 1787 _see_: Elliott,
Debates; Farrand, Records of the Constitutional Conventions; Farrand,
The Framing of the Constitution; Meigs, Growth of the Constitution.

[n] These commentaries on the Constitution, written during the struggle
for ratification, have been frequently cited by the Supreme Court as an
authoritative contemporary interpretation of the meaning of its
provisions.

[o] North Carolina added her ratification on November 21, 1789; yeas
184, nays 77. Rhode Island did not ratify until May 29, 1790; yeas 34,
nays 32.




THE CONSTITUTION OF THE UNITED STATES OF AMERICA

LITERAL PRINT


CONSTITUTION OF THE UNITED STATES

We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.


Article. I.

Section. 1. All legislative Powers herein granted shall be vested in a
Congress of the United States, which shall consist of a Senate and House
of Representatives.

Section. 2. The House of Representatives shall be composed of Members
chosen every second Year by the People of the several States, and the
Electors in each State shall have the Qualifications requisite for
Electors of the most numerous Branch of the State Legislature.

No Person shall be a Representative who shall not have attained to the
age of twenty five Years, and been seven Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State
in which he shall be chosen.

Representatives and direct Taxes shall be apportioned among the several
States which may be included within this Union, according to their
respective Numbers, which shall be determined by adding to the whole
Number of free Persons, including those bound to Service for a Term of
Years, and excluding Indians not taxed, three fifths of all other
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 Representative;
and until such enumeration shall be made, the State of New Hampshire
shall be entitled to chuse three, Massachusetts eight, Rhode-Island and
Providence Plantations one, Connecticut five, New-York six, New Jersey
four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten,
North Carolina five, South Carolina five, and Georgia three.

When vacancies happen in the Representation from any State, the
Executive Authority thereof shall issue Writs of Election to fill such
Vacancies.

The House of Representatives shall chuse their Speaker and other
Officers; and shall have the sole Power of Impeachment.

Section. 3. The Senate of the United States shall be composed of two
Senators from each State, chosen by the Legislature thereof, for six
Years; and each Senator shall have one Vote.

Immediately after they shall be assembled in Consequence of the first
Election, they shall be divided as equally as may be into three Classes.
The Seats of the Senators of the first Class shall be vacated at the
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 happen by Resignation, or otherwise, during the Recess of the
Legislature of any State, the Executive thereof may make temporary
Appointments until the next Meeting of the Legislature, which shall then
fill such Vacancies.

No Person shall be a Senator who shall not have attained to the Age of
thirty Years, and been nine Years a Citizen of the United States, and
who shall not, when elected, be an Inhabitant of that State for which he
shall be chosen.

The Vice President of the United States shall be President of the
Senate, but shall have no Vote, unless they be equally divided.

The Senate shall chuse their other Officers, and also a President pro
tempore, in the Absence of the Vice President, or when he shall exercise
the Office of President of the United States.

The Senate shall have the sole Power to try all Impeachments. When
sitting for that Purpose, they shall be on Oath or Affirmation. When the
President of the United States is tried the Chief Justice shall
preside: And no Person shall be convicted without the Concurrence of two
thirds of the Members present.

Judgment in Cases of Impeachment shall not extend further than to
removal from Office, and disqualification to hold and enjoy any Office
of honor, Trust or Profit under the United States: but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.

Section. 4. The Times, Places and Manner of holding Elections for
Senators and Representatives, shall be prescribed in each State by the
Legislature thereof; but the Congress may at any time by Law make or
alter such Regulations, except as to the Places of chusing Senators.

The Congress shall assemble at least once in every Year, and such
Meeting shall be on the first Monday in December, unless they shall by
Law appoint a different Day.

Section. 5. Each House shall be the Judge of the Elections, Returns and
Qualifications of its own Members, and a Majority of each shall
constitute a Quorum to do Business; but a smaller Number may adjourn
from day to day, and may be authorized to compel the Attendance of
absent Members, in such Manner, and under such Penalties as each House
may provide.

Each House may determine the Rules of its Proceedings, punish its
Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.

Each House shall keep a Journal of its Proceedings, and from time to
time publish the same, excepting such Parts as may in their Judgment
require Secrecy; and the Yeas and Nays of the Members of either House on
any question shall, at the Desire of one fifth of those Present, be
entered on the Journal.

Neither House, during the Session of Congress, shall, without the
Consent of the other, adjourn for more than three days, nor to any other
Place than that in which the two Houses shall be sitting.

Section. 6. The Senators and Representatives shall receive a
Compensation for their Services, to be ascertained by Law, and paid out
of the Treasury of 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 their respective Houses, and
in going to and returning from the same; and for any Speech or Debate in
either House, they shall not be questioned in any other Place.

No Senator or Representative shall, during the Time for which he was
elected, be appointed to any civil Office under the Authority of the
United States, which shall have been created, or the Emoluments whereof
shall have been encreased during such time; and no Person holding any
Office under the United States, shall be a Member of either House during
his Continuance in Office.

Section. 7. All Bills for raising Revenue shall originate in the House
of Representatives; but the Senate may propose or concur with Amendments
as on other Bills.

Every Bill which shall have passed the House of Representatives and the
Senate, shall, before it become a Law, be presented to the President of
the United States; If he approve he shall sign it, but if not he shall
return it, with his Objections to that House in which it shall have
originated, who shall enter the Objections at large on their Journal,
and proceed to reconsider 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 Persons voting for and
against the Bill shall be entered on the Journal of each House
respectively. If any Bill shall not be returned by the President within
ten Days (Sundays excepted) after it shall have been presented to him,
the Same shall be a Law, in like Manner as if he had signed it, unless
the Congress by their Adjournment prevent its Return, in which Case it
shall not be a Law.

Every Order, Resolution, or Vote to which the Concurrence of the Senate
and House of Representatives may be necessary (except on a question of
Adjournment) 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 him, shall be repassed by two thirds of the Senate
and House of Representatives, according to the Rules and Limitations
prescribed in the Case of a Bill.

Section. 8. The Congress shall have Power To lay and collect Taxes,
Duties, Imposts and Excises, to pay the Debts and provide for the common
Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States;

To borrow Money on the credit of the United States;

To regulate Commerce with foreign Nations, and among the several States,
and with the Indian Tribes;

To establish an uniform Rule of Naturalization, and uniform Laws on the
subject of Bankruptcies throughout the United States;

To coin Money, regulate the Value thereof, and of foreign Coin, and fix
the Standard of Weights and Measures;

To provide for the Punishment of counterfeiting the Securities and
current Coin of the United States;

To establish Post Offices and post Roads;

To promote the Progress of Science and useful Arts, by securing for
limited Times to Authors and Inventors the exclusive Right to their
respective Writings and Discoveries;

To constitute Tribunals inferior to the supreme Court;

To define and punish Piracies and Felonies committed on the high Seas,
and Offences against the Law of Nations;

To declare War, grant Letters of Marque and Reprisal, and make Rules
concerning Captures on Land and Water;

To raise and support Armies, but no Appropriation of Money to that Use
shall be for a longer Term than two Years;

To provide and maintain a Navy;

To make Rules for the Government and Regulation of the land and naval
Forces;

To provide for calling forth the Militia to execute the Laws of the
Union, suppress Insurrections and repel Invasions;

To provide for organizing, arming, and disciplining, the Militia, and
for governing such Part of them as may be employed in the Service of the
United States, reserving to the States respectively, the Appointment of
the Officers, and the Authority of training the Militia according to the
discipline prescribed by Congress;

To exercise exclusive Legislation in all Cases whatsoever, over such
District (not exceeding ten Miles square) as may, by Cession 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 purchased by the Consent of the Legislature of the State in
which the Same shall be, for the Erection of Forts, Magazines, Arsenals,
dock-Yards, and other needful Buildings;--And

To make all Laws which shall be necessary and proper for carrying into
Execution the foregoing Powers, and all other Powers vested by this
Constitution in the Government of the United States, or in any
Department or Officer thereof.

Section. 9. The Migration or Importation of such Persons as any of the
States now existing shall think proper to admit, shall not be prohibited
by the Congress prior to the Year one thousand eight hundred and eight,
but a Tax or duty may be imposed on such Importation, not exceeding ten
dollars for each Person.

The Privilege of the Writ of Habeas Corpus shall not be suspended,
unless when in Cases of Rebellion or Invasion the public Safety may
require it.

No Bill of Attainder or ex post facto Law shall be passed.

No Capitation, or other direct, Tax shall be laid, unless in Proportion
to the Census or Enumeration herein before directed to be taken.

No Tax or Duty shall be laid on Articles exported from any State.

No Preference shall be given by any Regulation of Commerce or Revenue to
the Ports of one State over those of another; nor shall Vessels bound
to, or from, one State, be obliged to enter, clear or pay Duties in
another.

No Money shall be drawn from the Treasury, but in Consequence of
Appropriations made by Law; and a regular Statement and Account of the
Receipts and Expenditures of all public Money shall be published from
time to time.

No Title of Nobility shall be granted by the United States: And no
Person holding any Office of Profit or Trust under them, shall, without
the Consent of the Congress, accept of any present, Emolument, Office,
or Title, of any kind whatever, from any King, Prince, or foreign State.

Section. 10. No State shall enter into any Treaty, Alliance, or
Confederation; grant Letters of Marque and Reprisal; coin Money; emit
Bills of Credit; make any Thing but gold and silver Coin a Tender in
Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law
impairing the Obligation of Contracts, or grant any Title of Nobility.

No State shall, without the Consent of the Congress, lay any Imposts or
Duties on Imports or Exports, except what may be absolutely necessary
for executing it's inspection Laws: and the net Produce of all Duties
and Imposts, laid by any State on Imports or Exports, shall be for the
Use of the Treasury of the United States; and all such Laws shall be
subject to the Revision and Controul of the Congress.

No State shall, without the Consent of Congress, lay any Duty of
Tonnage, keep Troops, or Ships of War in time of Peace, enter into any
Agreement or Compact with another State, or with a foreign Power, or
engage in War, unless actually invaded, or in such imminent Danger as
will not admit of delay.


Article. II.

Section. 1. The executive Power shall be vested in a President of the
United States of America. He shall hold his Office during the Term of
four Years, and, together with the Vice President, chosen for the same
Term, be elected, as follows

Each State shall appoint, in such Manner as the Legislature thereof may
direct, a Number of Electors, equal to the whole Number of Senators and
Representatives to which the State may be entitled in the Congress: but
no Senator or Representative, or Person holding an Office of Trust or
Profit under the United States, shall be appointed an Elector.

The Electors shall meet in their respective States, and vote by Ballot
for two Persons, of whom one at least shall not be an Inhabitant of the
same State with themselves. And they shall make a List of all the
Persons voted for, and of the Number of Votes for each; which List they
shall sign and certify, and transmit sealed to the Seat of the
Government of the United States, directed to the President of the
Senate. The President of the Senate shall, in the Presence of the Senate
and House of Representatives, open all 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 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.
In every Case, after the Choice of the President, the Person having the
greatest Number of Votes of the Electors shall be the Vice President.
But if there should remain two or more who have equal Votes, the Senate
shall chuse from them by Ballot the Vice President.

The Congress may determine the Time of chusing the Electors, and the Day
on which they shall give their Votes; which Day shall be the same
throughout the United States.

No Person except a natural born Citizen, or a Citizen of the United
States, at the time of the Adoption of this Constitution, shall be
eligible to the Office of President; neither shall any person be
eligible to that Office who shall not have attained to the Age of thirty
five Years, and been fourteen Years a Resident within the United States.

In Case of the Removal of the President from Office, or of his Death,
Resignation, or Inability to discharge the Powers and Duties of the said
Office, the Same 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 President, declaring what
Officer shall then act as President, and such Officer shall act
accordingly, until the Disability be removed, or a President shall be
elected.

The President shall, at stated Times, receive for his Services, a
Compensation, which shall neither be encreased nor diminished during the
Period for which he shall have been elected, and he shall not receive
within that Period any other Emolument from the United States, or any of
them.

Before he enter on the Execution of his Office, he shall take the
following Oath or Affirmation:--"I do solemnly swear (or affirm) that I
will faithfully execute the Office of President of the United States,
and will to the best of my Ability, preserve, protect and defend the
Constitution of the United States."

Section. 2. 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; he may require
the Opinion, in writing, of the principal Officer in each of the
executive Departments, upon any Subject relating to the Duties of their
respective Offices, and he shall have Power to grant Reprieves and
Pardons for Offences against the United States, except in Cases of
Impeachment.

He shall have Power, by and with the Advice and Consent of the Senate,
to make Treaties, provided two thirds of the Senators present concur;
and he shall nominate, and by and with the Advice and Consent of the
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
which shall be established by Law: but the Congress may by Law vest the
Appointment of such inferior Officers, as they think proper, in the
President alone, in the Courts of Law, or in the Heads of Departments.

The President shall have Power to fill up all Vacancies that may happen
during the Recess of the Senate, by granting Commissions which shall
expire at the End of their next Session.

Section. 3. He shall from time to time give to the Congress Information
of the State of the Union, and recommend to their Consideration such
Measures as he shall judge necessary and expedient; he 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 he shall think proper;
he shall receive Ambassadors and other public Ministers; he shall take
Care that the Laws be faithfully executed, and shall Commission all the
Officers of the United States.

Section. 4. The President, Vice President and all civil Officers of the
United States, shall be removed from Office on Impeachment for, and
Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.


Article. III.

Section. 1. The judicial Power of the United States, shall be vested in
one supreme Court, and in such inferior Courts as the Congress may from
time to time ordain and establish. The Judges, both of the supreme and
inferior Courts, shall hold their Offices during good Behaviour, and
shall, at stated Times, receive for their Services, a Compensation,
which shall not be diminished during their Continuance in Office.

Section. 2. The judicial Power shall extend to all Cases, in Law and
Equity, arising under this Constitution, the Laws of the United States,
and Treaties made, or which shall be made, under their Authority;--to
all Cases affecting Ambassadors, 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 Citizens of another State;--between
Citizens of different States;--between Citizens of the same State
claiming Lands under Grants of different States, and between a State, or
the Citizens thereof, and foreign States, Citizens or Subjects.

In all Cases affecting Ambassadors, other public Ministers and Consuls,
and those in which a State shall be Party, the supreme Court shall have
original Jurisdiction. In all the other Cases before mentioned, the
supreme Court shall have appellate Jurisdiction, both as to Law and
Fact, with such Exceptions, and under such Regulations as the Congress
shall make.

The Trial of all Crimes, except in Cases of Impeachment, shall be by
Jury; and such Trial shall be held in the State where the said Crimes
shall have been committed; but when not committed within any State, the
Trial shall be at such Place or Places as the Congress may by Law have
directed.

Section. 3. Treason against the United States, shall consist only in
levying War against them, or in adhering to their Enemies, giving them
Aid and Comfort. No Person shall be convicted of Treason unless on the
Testimony of two Witnesses to the same overt Act, or on Confession in
open Court.

The Congress shall have Power to declare the Punishment of Treason, but
no Attainder of Treason shall work Corruption of Blood, or Forfeiture
except during the Life of the Person attainted.


Article. IV.

Section 1. Full Faith and Credit shall be given in each State to the
public Acts, Records, and judicial Proceedings of every other State. And
the Congress may by general Laws prescribe the Manner in which such
Acts, Records and Proceedings shall be proved, and the Effect thereof.

Section 2. The Citizens of each State shall be entitled to all
Privileges and Immunities of Citizens in the several States.

A Person charged in any State with Treason, Felony, or other Crime, who
shall flee from Justice, and be found in another State, shall on Demand
of the executive Authority of the State from which he fled, be delivered
up, to be removed to the State having Jurisdiction of the Crime.

No Person held to Service or Labour in one State, under the Laws
thereof, escaping into another, shall, in Consequence of any Law or
Regulation therein, be discharged from such Service or Labour, but shall
be delivered up on Claim of the Party to whom such Service or Labour may
be due.

Section. 3. New States may be admitted by the Congress into this Union;
but no new State shall be formed or erected within the Jurisdiction of
any other State; nor any State be formed by the Junction of two or more
States, or Parts of States, without the Consent of the Legislatures of
the States concerned as well as of the Congress.

The Congress shall have Power to dispose of and make all needful Rules
and Regulations respecting the Territory or other Property belonging to
the United States; and nothing in this Constitution shall be so
construed as to Prejudice any Claims of the United States, or of any
particular State.

Section. 4. The United States shall guarantee to every State in this
Union a Republican Form of Government, and shall protect each of them
against Invasion; and on Application of the Legislature, or of the
Executive (when the Legislature cannot be convened) against domestic
Violence.


Article. V.

The Congress, whenever two thirds of both Houses shall deem it
necessary, shall propose Amendments to this Constitution, or, on the
Application of the Legislatures of two thirds of the several States,
shall call a Convention for proposing Amendments, which, in either Case,
shall 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 no Amendment which may be made prior to the Year One
thousand eight hundred and eight shall in any Manner affect the first
and fourth Clauses in the Ninth Section of the first Article; and that
no State, without its Consent, shall be deprived of it's equal Suffrage
in the Senate.


Article. VI.

All Debts contracted and Engagements entered into, before the Adoption
of this Constitution, shall be as valid against the United States under
this Constitution, as under the Confederation.

This Constitution, and the Laws of the United States which shall be made
in Pursuance thereof; and all Treaties made, or which shall be made,
under the Authority of the United States, shall be the supreme Law of
the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.

The Senators and Representatives before mentioned, and the Members of
the several State Legislatures, and all executive and judicial Officers,
both of the United States and of the several States, shall be bound by
Oath or Affirmation, to support this Constitution; but no religious Test
shall ever be required as a Qualification to any Office or public Trust
under the United States.


Article. VII.

The Ratification of the Conventions of nine States, shall be sufficient
for the Establishment of this Constitution between the States so
ratifying the Same.

[Sidenote: The Word, "the," being interlined between the seventh and
eighth Lines of the first Page, The Word "Thirty" being partly written
on an Erazure in the fifteenth Line of the first Page, The Words "is
tried" being interlined between the thirty second and thirty third Lines
of the first Page and the Word "the" being interlined between the forty
third and forty fourth Lines of the second Page.

Attest William Jackson Secretary]

done in Convention by the Unanimous Consent of the States present the
Seventeenth Day of September in the Year of our Lord one thousand seven
hundred and Eighty seven and of the Independence of the United States of
America the Twelfth In witness whereof We have hereunto subscribed our
Names,

Go Washington--Presidt
and deputy from Virginia

New Hampshire  { John Langdon
               { Nicholas Gilman

Massachusetts  { Nathaniel Gorham
               { Rufus King

Connecticut    { Wm: Saml. Johnson
               { Roger Sherman

New York : : :  Alexander Hamilton

               { Wil: Livingston
New Jersey     { David Brearley.
               { Wm. Paterson.
               { Jona: Dayton

               { B Franklin
               { Thomas Mifflin
               { Robt Morris
Pennsylvania   { Geo. Clymer
               { Thos. FitzSimons
               { Jared Ingersoll
               { James Wilson
               { Gouv Morris

               { Geo: Read
               { Gunning Bedford jun
Delaware       { John Dickinson
               { Richard Bassett
               { Jaco: Broom

               { James McHenry
Maryland       { Dan of St Thos. Jenifer
               { Danl Carroll

Virginia       { John Blair--
               { James Madison Jr.

               { Wm. Blount
North Carolina { Richd. Dobbs Spaight.
               { Hu Williamson

               { J. Rutledge
South Carolina { Charles Cotesworth Pinckney
               { Charles Pinckney
               { Pierce Butler

Georgia        { William Few
               { Abr Baldwin

       *       *       *       *       *

In Convention Monday, September 17th 1787.
Present
The States of

New Hampshire, Massachusetts, Connecticut, Mr. Hamilton from New York,
New Jersey, Pennsylvania, Delaware, Maryland, Virginia, North Carolina,
South Carolina and Georgia.

Resolved,

That the preceeding Constitution be laid before the United States in
Congress assembled, and that it is the Opinion of this Convention, that
it should afterwards be submitted to a Convention of Delegates, chosen
in each State by the People thereof, under the Recommendation of its
Legislature, for their Assent and Ratification; and that each Convention
assenting to, and ratifying the Same, should give Notice thereof to the
United States in Congress assembled. Resolved, That it is the Opinion of
this Convention, that as soon as the Conventions 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 President, and should transmit their Votes
certified, signed, sealed and directed, as the Constitution requires, to
the Secretary of the United States in Congress assembled, that the
Senators and Representatives should convene at the Time and Place
assigned; that the Senators should appoint a President of the Senate,
for the sole Purpose of receiving, opening and counting the Votes for
President; and, that after he shall be chosen, the Congress, together
with the President, should, without Delay, proceed to execute this
Constitution.

By the Unanimous Order of the Convention

Go. Washington Presidt

W. Jackson Secretary.




AMENDMENTS TO THE CONSTITUTION OF THE UNITED STATES OF AMERICA


ARTICLES IN ADDITION TO, AND AMENDMENT OF, THE CONSTITUTION OF THE
UNITED STATES OF AMERICA, PROPOSED BY CONGRESS, AND RATIFIED BY THE
SEVERAL STATES, PURSUANT TO THE FIFTH ARTICLE OF THE ORIGINAL
CONSTITUTION.[a]


Amendment [I.][b]

Congress shall make no law respecting an establishment of religion, or
prohibiting the free exercise thereof; or abridging the freedom of
speech, or of the press; or the right of the people peaceably to
assemble, and to petition the Government for a redress of grievances.


Amendment [II.]

A well regulated Militia, being necessary to the security of a free
State, the right of the people to keep and bear Arms, shall not be
infringed.


Amendment [III.]

No Soldier shall, in time of peace be quartered in any house, without
the consent of the Owner, nor in time of war, but in a manner to be
prescribed by law.


Amendment [IV.]

The right of the people to be secure in their persons, houses, papers,
and effects, against unreasonable searches and seizures, shall not be
violated, and no Warrants shall issue, but upon probable cause,
supported by Oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.


Amendment [V.]

No person shall be held to answer for a capital, or otherwise infamous
crime, unless on a presentment or indictment of a Grand Jury, except in
cases arising in the land or naval forces, or in the 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 criminal case to be a witness
against himself, nor be deprived of life, liberty, or property, without
due process of law; nor shall private property be taken for public use,
without just compensation.


Amendment [VI.]

In all criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury of the State and district
wherein the crime 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 confronted with the witnesses against
him; to have compulsory process for obtaining witnesses in his favor,
and to have the Assistance of Counsel for his defence.


Amendment [VII.]

In Suits at common law, where the value in controversy shall exceed
twenty dollars, the right of trial by jury shall be preserved, and no
fact tried by a jury, shall be otherwise re-examined in any Court of the
United States, than according to the rules of the common law.


Amendment [VIII.]

Excessive bail shall not be required, nor excessive fines imposed, nor
cruel and unusual punishments inflicted.


Amendment [IX.]

The enumeration in the Constitution, of certain rights, shall not be
construed to deny or disparage others retained by the people.


Amendment [X.]

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.


Amendment [XI.][c]

The Judicial power of the United States shall not be construed to extend
to any suit in law or equity, commenced or prosecuted against one of the
United States by Citizens of another State, or by Citizens or Subjects
of any Foreign State.


Amendment [XII.][d]

The Electors shall meet in their respective states and vote by ballot
for President and Vice-President, one of whom, at least, shall not be an
inhabitant of the same state with themselves; they shall name in their
ballots the person voted for as President, and in distinct ballots the
person voted for as Vice-President, and they shall make distinct lists
of all persons voted for as President, and of all persons voted for as
Vice-President, and of the number of votes for each, which lists they
shall sign and certify, and transmit sealed to the seat of the
government of the United States, directed to the President of the
Senate;--The President of the Senate shall, in the presence of the
Senate and House of Representatives, open all the certificates and the
votes shall then 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 shall devolve upon them, before the fourth
day of March next following, then the Vice-President shall act as
President, as in the case of the death or other constitutional
disability of the President--The person having the greatest number of
votes as Vice-President, shall be the Vice-President, if such number be
a majority of the whole number of Electors appointed, and if no person
have a majority, then from the two highest numbers on the list, the
Senate shall choose the Vice-President; a quorum for the purpose shall
consist of two-thirds of the whole number of Senators, and a majority of
the whole number shall be necessary to a choice. But no person
constitutionally ineligible to the office of President shall be eligible
to that of Vice-President of the United States.


Amendment XIII.[e]

Section 1. Neither slavery nor involuntary servitude, except as
a punishment for crime whereof the party shall have been duly convicted,
shall exist within the United States, or any place subject to their
jurisdiction.

Section 2. Congress shall have power to enforce this article by
appropriate legislation.


Amendment XIV.[f]

Section 1. All persons born or naturalized in the United States
and subject to the jurisdiction thereof, are citizens of the United
States and of the State wherein 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 deprive any person of
life, liberty, or property, without due process of law; nor deny to any
person within its jurisdiction the equal protection of the laws.

Section 2. Representatives shall be apportioned among the
several States according to their respective numbers, counting the
whole number of persons in each State, excluding Indians not taxed. But
when the right to vote at any election for the choice of electors for
President and 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
States, or in any way abridged, except for participation in rebellion,
or other crime, the basis of representation therein shall be reduced in
the proportion which the number of such male citizens shall bear to the
whole number of male citizens twenty-one years of age in such State.

Section 3. No person shall be a Senator or Representative in
Congress, or elector of President and Vice President, or hold any
office, civil or military, under the United States, or under any State,
who, having previously 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 of the United States, shall have engaged in insurrection or
rebellion against the same, or given aid or comfort to the enemies
thereof. But Congress may by a vote of two-thirds of each House, remove
such disability.

Section 4. The validity of the public debt of the United
States, authorized by law, including debts incurred for payment of
pensions and bounties for services in suppressing 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
insurrection or rebellion against the United States, or any claim for
the loss or emancipation of any slave; but all such debts, obligations
and claims shall be held illegal and void.

Section 5. The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article.


Amendment XV.[g]

Section 1. The right of citizens of the United States to vote
shall not be denied or abridged by the United States or by any State on
account of race, color, or previous condition of servitude.

Section 2. The Congress shall have power to enforce this
article by appropriate legislation.


Amendment XVI.[h]

The Congress shall have power to lay and collect taxes on incomes, from
whatever source derived, without apportionment among the several States,
and without regard to any census or enumeration.


Amendment [XVII.][i]

The Senate of the United States shall be composed of two Senators from
each State, elected by the people thereof, for six years; and each
Senator shall have one vote. The electors in each State shall have the
qualifications requisite for electors of the most numerous branch of the
State legislatures.

When vacancies happen in the representation of any State in the Senate,
the executive authority of such State shall issue writs of election to
fill such vacancies: _Provided_, That the legislature of any State may
empower the executive thereof to make temporary appointments until the
people fill the vacancies by election as the legislature may direct.

This amendment shall not be so construed as to affect the election or
term of any Senator chosen before it becomes valid as part of the
Constitution.


Amendment [XVIII.][j]

Section 1. After one year from the ratification of this article
the manufacture, sale, or transportation of intoxicating liquors within,
the importation thereof into, or the exportation thereof from the United
States and all territory subject to the jurisdiction thereof for
beverage purposes is hereby prohibited.

Sec. 2. The Congress and the several States shall have
concurrent power to enforce this article by appropriate legislation.

Sec. 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of
the several States, as provided in the Constitution, within seven years
from the date of the submission hereof to the States by the Congress.


Amendment [XIX.][k]

The right of citizens of the United States to vote shall not be denied
or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate
legislation.


Amendment [XX.][l]

Section 1. The terms of the President and Vice President shall
end at noon on the 20th day of January, and the terms of Senators and
Representatives at noon on the 3d day of January, of the years in which
such terms would have ended if this article had not been ratified; and
the terms of their successors shall then begin.

Sec. 2. The Congress shall assemble at least once in every
year, and such meeting shall begin at noon on the 3d day of January,
unless they shall by law appoint a different day.

Sec. 3. If, at the time fixed for the beginning of the term of
the President, the President elect shall have died, the Vice President
elect shall become President. If a President shall not have been chosen
before the time fixed for the beginning 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 nor a Vice President elect shall have qualified, declaring who
shall then act as President, or the manner in which one who is to act
shall be selected, and such person shall act accordingly until a
President or Vice President shall have qualified.

Sec. 4. The Congress may by law provide for the case of the
death of any of the persons from whom the House of Representatives may
choose a President whenever the right of choice shall have devolved upon
them, and for the case of the death of any of the persons from whom the
Senate may choose a Vice President whenever the right of choice shall
have devolved upon them.

Sec. 5. Sections 1 and 2 shall take effect on the 15th day of
October following the ratification of this article.

Sec. 6. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by the legislatures of
three-fourths of the several States within seven years from the date of
its submission.


Amendment [XXI.][m]

Section 1. The eighteenth article of amendment to the
Constitution of the United States is hereby repealed.

Sec. 2. The transportation or importation into any State,
Territory, or possession of the United States for delivery or use
therein of intoxicating liquors, in violation of the laws thereof, is
hereby prohibited.

Sec. 3. This article shall be inoperative unless it shall have
been ratified as an amendment to the Constitution by conventions in the
several States, as provided in the Constitution, within seven years from
the date of the submission hereof to the States by the Congress.


Amendment [XXII.][n]

Section 1. No person shall be elected to the office of the
President more than twice, and no person who has held the office of
President, or acted as President, for more than two years of a term to
which some other person was elected 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 person who may be
holding the office of President, or acting as President, during the term
within which this Article becomes operative from holding the office of
President or acting as President during the remainder of such term.

Section 2. This Article shall be inoperative unless it shall
have been ratified as an amendment to the Constitution by the
legislatures of three-fourths of the several States within seven years
from the date of its submission to the States by the Congress.


Notes

[a] In Dillon _v._ Gloss, 256 U.S. 368 [1921], the Supreme Court stated
that it would take Judicial notice of the date on which a State ratified
a proposed constitutional amendment. Accordingly the Court consulted the
State Journals to determine the dates on which each house of the
legislature of certain States ratified the 18th Amendment. It,
therefore, follows that the date on which the governor approved the
ratification, or the 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 by the speaker or presiding officers of
both houses being considered a part of the ratification of the
"legislature"). When that date is not available, the date given is that
on which it was approved by the governor or certified by the secretary
of state of the particular State. In each case such fact has been noted.
Except as otherwise indicated information as to ratification is based on
data supplied by the Department of State.

[b] Brackets enclosing an amendment number indicate that the number was
not specifically assigned in the resolution proposing the amendment. It
will be seen, accordingly, that only amendments XIII, XIV, XV and XVI
were thus technically 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 passed the House on September
24 [_Id._, 948]. They appear officially in 1 Stat. 97. Ratification was
completed on December 15, 1791, when the eleventh State (Virginia)
approved these amendments, there being then 14 States in the Union.

The several State legislatures ratified the first 10 amendments to the
Constitution (i.e. nos. 3 to 12 of those proposed) on the following
dates: New Jersey, November 20, 1789; Maryland, December 19, 1789; North
Carolina, December 22, 1789; South Carolina, January 19, 1790; New
Hampshire, January 25, 1790; 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 population in the
House, and specified that no law varying the compensation of members of
Congress should be effective until after an intervening election of
Representatives. The first was ratified by 10 States (1 short of the
requisite number) and the second by 6 States [2 Doc. Hist. Const.,
325-390].

[c] The 11th Amendment was proposed by Congress on March 4, 1794, when
it passed the House [4 Ann. Cong. (3d Cong., 1st sess.) 477, 478],
having previously passed the Senate on January 14 [_Id._, 30, 31]. It
appears officially in 1 Stat. 402. Ratification was completed on
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
Amendment had been adopted by three-fourths of the States and that it
"may now be deemed to be a part of the Constitution" [1 Mess. and Papers
of Pres. 250]. In the interim South Carolina had ratified, and Tennessee
had been admitted into the Union as the Sixteenth State.

The several State legislatures ratified the 11th Amendment on the
following dates: New York, March 27, 1794; Rhode Island, March 31, 1794;
Connecticut, May 8, 1794; New Hampshire, June 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; Maryland, December 26, 1794; Delaware, January 23,
1795; North Carolina, February 7, 1795; South Carolina, December 4, 1797
[State Department, Press Releases, vol. XII, p. 247 (1935)].

[d] The 12th Amendment was proposed by Congress on December 9, 1803,
when it passed the House [13 Ann. Cong. (8th Cong., 1st sess.) 775,
776], having previously passed the Senate on December 2 [_Id._, 209]. It
was not signed by the presiding officers of the House and Senate until
December 12. It appears officially in 2 Stat. 306. Ratification was
probably completed on June 15, 1804, when the legislature of the
thirteenth State (New Hampshire) 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 conventions in three-fourths
thereof," it has been generally believed that an approval or veto by a
governor is without significance. If the ratification by New Hampshire
be deemed ineffective, then the amendment became operative by
Tennessee's ratification on July 27, 1804. On September 25, 1804, in a
circular letter to the Governors of the several States, Secretary of
State Madison declared the amendment ratified by three-fourths of the
States.

The several State legislatures ratified the 12th Amendment on the
following dates: North Carolina, December 22, 1803; Maryland, December
24, 1803; Kentucky, December 27, 1803; Ohio, between December 5 and
December 30, 1803; Virginia, 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; South Carolina, May 15, 1804;
Georgia, May 19, 1804; New Hampshire, June 15, 1804; and Tennessee, July
27, 1804. The amendment was rejected by Delaware on January 18, 1804,
and by Connecticut at its session begun May 10, 1804.

[e] The 13th Amendment was proposed by Congress on January 31, 1865,
when it passed the House [Cong. Globe (38th Cong., 2d sess.) 531],
having previously passed the Senate on April 8, 1864 [_Id._ (38th Cong.,
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) approved the
amendment, there being then 36 States in the Union. On December 18,
1865, Secretary of State Seward certified that the 13th Amendment had
become a part of the Constitution [13 Stat. 774].

The several State legislatures ratified the 13th Amendment on the
following dates: Illinois, February 1, 1865; Rhode Island, February, 2,
1865; Michigan, February 2, 1865; Maryland, February 3, 1865; New York,
February 3, 1865; West Virginia, February 3, 1865; Missouri, February 6,
1865; Maine, February 7, 1865; Kansas, February 7, 1865; Massachusetts,
February 7, 1865; Pennsylvania, February 8, 1865; Virginia, February 9,
1865; Ohio, February 10, 1865; Louisiana, February 15 or 16, 1865;
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, December
11, 1865; California, December 15, 1865; Florida, December 28, 1865
(Florida again ratified this amendment on June 9, 1868, upon its
adoption of a new constitution); Iowa, January 17, 1866; New Jersey,
January 23, 1866 (after having rejected the amendment on March 16,
1865); Texas, February 18, 1870; Delaware, February 12, 1901 (after
having rejected the amendment on February 8, 1865). The amendment was
rejected by Kentucky on February 24, 1865, and by Mississippi on
December 2, 1865.

"A thirteenth amendment depriving of United States citizenship any
citizen who should accept any title, office, or emolument from a foreign
power, was proposed by Congress on May 1, 1810, 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 Stat. 613. It failed of adoption, being ratified
by but 12 States up to December 10, 1812 [2 Miscell. Amer. State Papers,
477-479; 2 Doc. Hist. Const. 454-499], there then being 18 in all.

"Another thirteenth amendment, forbidding any future amendment that
should empower Congress to interfere with the domestic institutions of
any State, was proposed by Congress on March 2, 1861, when it passed the
Senate [Cong. Globe (36th 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, January 10, 1862 [Laws
Maryland (1861-62) 21]; Illinois, February 14, 1862 [2 Doc. Hist.
Const., 518] irregular, because by convention instead of by legislation
as authorized by Congress." [Burdick, The Law of the American
Constitution, 637.]

[f] The 14th Amendment was proposed by Congress on June 13, 1866, when
it passed the House [Cong. Globe (39th Cong., 1st sess.) 3148, 3149],
having previously passed the Senate on June 8 [_Id._, 3042]. It appears
officially in 14 Stat. 358 under date of June 16, 1866. Ratification was
probably completed on July 9, 1868, when the legislature of the
twenty-eighth State (South Carolina 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 at
once (July 21, 1868) passed a joint resolution declaring the amendment a
part of the Constitution and directing the Secretary to promulgate it as
such. On July 28, 1868, Secretary Seward certified without reservation
that the amendment was a part of the Constitution. In the interim, two
other States, Alabama on July 13 and Georgia on July 21, 1868, had added
their ratifications.

The several State legislatures ratified the 14th Amendment on the
following dates: Connecticut, June 30, 1866; New Hampshire, July 7,
1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 (the New
Jersey Legislature on February 20, 1868 "withdrew" its consent to the
ratification; the Governor vetoed that bill on March 5, 1868; and it was
repassed over his veto on March 24, 1868); Oregon, September 19, 1866
(Oregon "withdrew" its consent on October 15, 1868); Vermont, October
30, 1866; New York, January 10, 1867; Ohio, January 11, 1867 (Ohio
"withdrew" its consent on January 15, 1868); Illinois, January 15, 1867;
West Virginia, January 16, 1867; Michigan, January 16, 1867; Kansas,
January 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); South
Carolina, July 8, 1868; (after having rejected the amendment on December
20, 1866); Alabama, July 13, 1868 (date on which it was "approved" by
the Governor); Georgia, July 21, 1868 (after having rejected the
amendment on November 9, 1866--Georgia ratified again on February 2,
1870); Virginia, October 8, 1869 (after having rejected the amendment on
January 9, 1867); Mississippi, January 17, 1870; Texas, February 18,
1870 (after having rejected the amendment on October 27, 1866);
Delaware, February 12, 1901 (after having rejected the amendment on
February 7, 1867). The amendment was rejected (and not subsequently
ratified) by Kentucky on January 8, 1807, and by Maryland on March 23,
1867.

[g] The 15th Amendment was proposed by Congress on February 26, 1869,
when it passed the Senate [Cong. Globe (40th Cong., 3rd sess.) 1641],
having previously passed the House on February 25 [_Id._ 1563, 1564]. It
appears officially in 15 Stat. 346 under date of 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 assent to this amendment. Even if this
withdrawal were effective, Nebraska's ratification on February 17, 1870,
authorized Secretary of State Fish's certification of March 30, 1870,
that the 15th Amendment had become a part of the Constitution [16 Stat
1131].

The several State legislatures ratified the 15th Amendment on the
following dates: Nevada, March 1, 1869; West Virginia, March 3, 1869;
North Carolina, March 5, 1869; Louisiana, March 5, 1869 (date on which
it was "approved" by the Governor); Illinois March 5, 1869; Michigan,
March 5, 1869; Wisconsin, March 5, 1869; Maine, March 11, 1869;
Massachusetts, March 12, 1869; South Carolina, March 15, 1869; Arkansas,
March 15, 1869; Pennsylvania, March 25, 1869; New York, April 14, 1869
(New York "withdrew" its consent to the ratification on January 5,
1870); 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
this amendment on February 27, 1869); Ohio, January 27, 1870 (after
having rejected the amendment on May 4, 1869); Georgia, February 2,
1870; Iowa, February 3, 1870; Nebraska, February 17, 1870; Texas,
February 18, 1870; New Jersey, February 15, 1871 (after having rejected
the amendment on February 7, 1870); Delaware, February 12, 1901 (date on
which approved by Governor; Delaware had previously rejected the
amendment on March 18, 1869). The amendment was rejected (and not
subsequently ratified) by California, Kentucky, Maryland, Oregon, and
Tennessee.

[h] The 16th Amendment was proposed by Congress on July 12, 1909, when
it passed the House [44 Cong. Rec. (61st Cong., 1st sess.) 4390, 4440,
4441], having previously passed the Senate on July 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) approved the amendment, there being
then 48 States in the Union. On February 25, 1913, Secretary of State
Knox certified that this amendment had become a part of the Constitution
[37 Stat. 1785].

The several State legislatures ratified the 16th Amendment on the
following dates: Alabama, August 10, 1909; Kentucky, February 8, 1910;
South Carolina, February 19, 1910; Illinois, March 1, 1910; Mississippi,
March 7, 1910; Oklahoma, March 10, 1910; Maryland, April 8, 1910;
Georgia, August 3, 1910; Texas, August 16, 1910; Ohio, January 19, 1911;
Idaho, January 20, 1911; Oregon, January 23, 1911; Washington, January
26, 1911; Montana, January 27, 1911; Indiana, January 30, 1911;
California, 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; New
York, July 12, 1911; Arizona, April 3, 1912; Minnesota, June 11, 1912;
Louisiana, June 28, 1912; West Virginia, January 31, 1913; Delaware,
February 3, 1913; Wyoming, February 3, 1913; New Mexico, February 3,
1913; New Jersey, February 4, 1913; Vermont, February 19, 1913;
Massachusetts, March 4, 1913; New Hampshire, March 7, 1913 (after having
rejected the amendment on March 2, 1911). The amendment was rejected
(and not subsequently ratified) by Connecticut, Rhode Island, and Utah.

[i] The 17th Amendment was proposed by Congress on May 13, 1912, when it
passed the House [48 Cong. Rec. (62d Cong., 2d sess.) 6367], having
previously passed the Senate on June 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) approved the amendment, there being then 48 States in the
Union. On May 31, 1913, Secretary of State Bryan certified that it had
become a part of the Constitution [38 Stat. 2049].

The several State legislatures ratified the 17th Amendment on the
following dates: Massachusetts, May 22, 1912; Arizona, June 3, 1912;
Minnesota, June 10, 1912; New York, January 15, 1913; Kansas, January
17, 1913; Oregon, January 23, 1913; North Carolina, January 25, 1913;
California, January 28, 1913; Michigan, January 28, 1913; Iowa, January
30, 1913; Montana, January 30, 1913; Idaho, 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, 1913; South Dakota, February 19, 1913; Maine, February 20,
1913; Oklahoma, February 24, 1913; Ohio, February 25, 1913; Missouri,
March 7, 1913; New Mexico, March 13, 1913; Nebraska, March 14, 1913; New
Jersey, March 17, 1913; Tennessee, April 1, 1913; Pennsylvania, April 2,
1913; Connecticut, April 8, 1913; Louisiana, June 5, 1914. The amendment
was rejected by Utah on February 26, 1913.

[j] The 18th Amendment was proposed by Congress on December 18, 1917,
when it passed the Senate [Cong. Rec. (65th Cong., 2d sess.) 478],
having previously passed the House on December 17 [_Id._, 470]. It
appears 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
Secretary of State Polk certified that this amendment had been adopted
by the requisite number of States [40 Stat. 1941]. By its terms this
amendment did not became effective until 1 year after ratification.

The several State legislatures ratified the 18th Amendment on the
following dates: Mississippi, January 8, 1918; Virginia, January 11,
1918; Kentucky, January 14, 1918; North Dakota, January 28, 1918 (date
on which approved by Governor); South Carolina, January 29, 1918;
Maryland, February 13, 1918; Montana, February 19, 1918; Texas, March 4,
1918; Delaware, March 18, 1918; South Dakota, March 20, 1918;
Massachusetts, April 2, 1918; Arizona, May 24, 1918; Georgia, June 26,
1918; Louisiana, 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
15, 1919; Iowa, January 15, 1919; New Hampshire, January 15, 1919;
Oregon, January 15, 1919; Nebraska, January 16, 1919; North Carolina,
January 16, 1919; Utah, January 16, 1919; Missouri, January 16, 1919;
Wyoming, January 16, 1919; Minnesota, January 17, 1919; Wisconsin,
January 17, 1919; New Mexico, January 20, 1919; Nevada, January 21,
1919; Pennsylvania, February 25, 1919; Connecticut, May 6, 1919; New
Jersey, March 9, 1922; New York, January 29, 1919; Vermont, January 29,
1919.

[k] The 19th Amendment was proposed by Congress on June 4, 1919, when it
passed the Senate [Cong. Rec. (66th Cong., 1st sess.) 635], having
previously passed the House 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 amendment,
there being then 48 States in the Union. On August 26, 1920, Secretary
of State Colby certified that it had become a part of the Constitution
[41 Stat. 1823].

The several State legislatures ratified the 19th Amendment on the
following dates: Illinois, June 10, 1919 (readopted June 17, 1919);
Michigan, June 10, 1919; Wisconsin, June 10, 1919; Kansas, June 16,
1919; New York, June 16, 1919; Ohio, June 16, 1919; Pennsylvania, June
24, 1919; Massachusetts, June 25, 1919; Texas, June 28, 1919; Iowa, July
2, 1919 (date on which approved by Governor); Missouri, July 3, 1919;
Arkansas, July 28, 1919; Montana, August 2, 1919 (date on which approved
by Governor); Nebraska, August 2, 1919; Minnesota, September 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, February 12, 1920; New Mexico,
February 21, 1920 (date on which approved by Governor); Oklahoma,
February 28, 1920; West Virginia, March 10, 1920; Washington, March 22,
1920; Tennessee, August 18, 1920; Connecticut, September 14, 1920
(confirmed September 21, 1920); Vermont, February 8, 1921. The amendment
was rejected by Georgia on July 24, 1919; by Alabama on September 22,
1919; by South Carolina on January 29, 1920; by Virginia on February 12,
1920; by Maryland on February 24, 1920; by Mississippi on March 29,
1920; by Louisiana on July 1, 1920.

[l] The 20th Amendment was proposed by Congress on March 2, 1932, when
it passed the Senate [Cong. Rec. (72d Cong., 1st sess.) 5086], having
previously passed the House 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 amendment, there being
then 48 States in the Union. On February 6, 1933, Secretary of State
Stimson certified that it had become a part of the Constitution [47
Stat. 2569].

The several State legislatures ratified the 20th Amendment on the
following dates: Virginia, March 4, 1932; New York, March 11, 1932;
Mississippi, March 16, 1932; Arkansas, March 17, 1932; Kentucky, March
17, 1932; New Jersey, March 21, 1932; South Carolina, March 25, 1932;
Michigan, March 31, 1932; Maine, April 1, 1932; Rhode Island, April 14,
1932; Illinois, April 21, 1932; Louisiana, June 22, 1932; West Virginia,
July 30, 1932; Pennsylvania, August 11, 1932; Indiana, 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; South Dakota, January 20, 1933; Tennessee,
January 20, 1933; Idaho, January 21, 1933; New Mexico, January 21, 1933;
Georgia, January 23, 1933; Missouri, January 23, 1933; Ohio, January 23,
1933; Utah, January 23, 1933; Colorado, January 24, 1933; Massachusetts,
January 24, 1933; Wisconsin, January 24, 1933; Nevada, January 26, 1933;
Connecticut, January 27, 1933; New Hampshire, January 31, 1933; Vermont,
February 2, 1933; Maryland, March 24, 1933; Florida, April 26, 1933.

A proposed amendment which would authorize Congress to limit, regulate,
and prohibit the labor of persons under 18 years of age was passed by
Congress on June 2, 1924. This proposal at the time it was submitted to
the States was referred to as "the proposed 20th Amendment." It appears
officially in 43 Stat. 670.

The status of this proposed amendment is a matter of conflicting
opinion. The Kentucky Court of Appeals in Wise _v._ Chandler (270 Ky. 1
[1937]) has held that it is no longer open to ratification 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; and (3) more than a reasonable
time has elapsed since it was submitted to the States in 1924. The
Kansas Supreme Court in Coleman _v._ Miller (146 Kan. 390 [1937]) came
to the opposite conclusion.

On October 1, 1937, 27 States had ratified the proposed amendment. Of
these States 10 had previously rejected the amendment on one or more
occasions. At least 26 different States have at one time rejected the
amendment.

[m] The 21st Amendment was proposed by Congress on February 20, 1933,
when it passed the House [Cong. Rec. (72d Cong., 2d sess.) 4516], having
previously passed the Senate on February 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
being then 48 States in the Union. On December 5, 1933, Acting Secretary
of State Phillips certified that it had been adopted by the requisite
number of States [48 Stat. 1749].

The several State conventions ratified the 21st Amendment on the
following dates: Michigan, April 10, 1933; Wisconsin, April 25, 1933;
Rhode Island, May 8, 1933; Wyoming, May 25, 1933; New Jersey, June 1,
1933; Delaware, June 24, 1933; Indiana, June 26, 1933; Massachusetts,
June 26, 1933; New York, June 27, 1933; Illinois, July 10, 1933; Iowa,
July 10, 1933; Connecticut, July 11, 1933; New Hampshire, July 11, 1933;
California, July 24, 1933; 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, 1933;
Florida, November 14, 1933; Texas, November 24, 1933; Kentucky, November
27, 1933; Ohio, December 5, 1933; Pennsylvania, December 5, 1933; Utah,
December 5, 1933; Maine, December 6, 1933; Montana, August 6, 1934. The
amendment was rejected by a convention in the State of South Carolina,
on December 4, 1933. The electorate of the State of North Carolina voted
against holding a convention at a general election held on November 7,
1933.

[n] The twenty-second Amendment was proposed by Congress on March 24,
1947, having passed the House on March 21, 1947 [Cong. Rec. (80th Cong.,
1st sess.) 2392] and having previously passed the 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; there being then 48 States in the Union. On
March 1, 1951, Jess Larson, Administrator of General Services, certified
that it had been adopted by the requisite number of States [16 F.R.
2019].

A total of 41 State legislatures ratified the Twenty-second Amendment on
the following dates: Maine, March 31, 1947; Michigan, March 31, 1947;
Iowa, April 1, 1947; Kansas, April 1, 1947; New Hampshire, April 1,
1947; Delaware, April 2, 1947; Illinois, April 3, 1947; Oregon, April 3,
1947; Colorado, April 12, 1947; California, April 15, 1947; New Jersey,
April 15, 1947; Vermont, April 15, 1947; Ohio, 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, 1951; New Mexico, February 12, 1951; Wyoming,
February 12, 1951; Arkansas, February 15, 1951; Georgia, February 17,
1951; Tennessee, February 20, 1951; Texas, February 22, 1951; Utah,
February 26, 1951; Nevada, February 26, 1951; Minnesota, February 27,
1951; North Carolina, February 28, 1951; South Carolina, March 13, 1951;
Maryland, March 14, 1951; Florida, April 16, 1951; and Alabama, May 4,
1951.




THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS


PREAMBLE

The Preamble:                                                   Page
  Purpose and effect                                              59
  "The people of the United States"                               59


THE CONSTITUTION OF THE UNITED STATES OF AMERICA WITH ANNOTATIONS


The Preamble

We the People of the United States, in Order to form a more perfect
Union, establish Justice, insure domestic Tranquility, provide for the
common defence, promote the general Welfare, and secure the Blessings of
Liberty to ourselves and our Posterity, do ordain and establish this
Constitution for the United States of America.


Purpose and Effect of the Preamble

Although the preamble is not a source of power for any department of the
Federal Government,[1] the Supreme Court has often referred to it as
evidence of the origin, scope, and purpose of the Constitution. "Its
true office" wrote Joseph Story in his Commentaries, "is to expound the
nature and extent and application of the powers actually conferred by
the Constitution, and not substantively to create them. For example, the
preamble declares one object to be, 'to provide for the common defense.'
No one can doubt that this does not enlarge the powers of Congress to
pass any measures 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] and that it was made for, and is
binding only in, the United States of America.[4] In the Dred Scott
case,[5] Chief Justice Taney declared that: "The words 'people of the
United States' and 'citizens' are synonymous terms, and mean the same
thing. They both describe the political body who, according to our
republican institutions, form the sovereignty, and who hold the power
and conduct the Government through their representatives. They are what
we familiarly call the 'sovereign people,' and every citizen is one of
this people, and a constituent member of this sovereignty."[6]


Notes

[1] Jacobson _v._ Massachusetts, 197 U.S. 11, 22 (1905).

[2] 1 Story, Commentaries on the Constitution, Sec. 462.

[3] McCulloch _v._ Maryland, 4 Wheat. 316, 403 (1819); Chisholm _v._
Georgia, 2 Dall. 419, 470 (1793); Martin _v._ Hunter, Wheat. 304, 324
(1816).

[4] Downes _v._ Bidwell, 182 U.S. 244, 251 (1901); In re Ross, 140 U.S.
453, 464 (1891).

[5] 19 How. 393 (1857).

[6] Ibid. 404.




ARTICLE I

LEGISLATIVE DEPARTMENT


Section 1. Nature of legislative power:                         Page
  Doctrine of enumerated powers                                   71
  Nondelegability of legislative power                            73
    Origin of doctrine                                            73
    Functions which may be delegated                              74
    Power to supplement statutory provisions                      74
    Standards for administrative action                           75
    Rule-making power                                             76
    Orders directed to particular persons                         77
    Delegation to private persons                                 78
    Power to give effect to contingent legislation                79
    Modification of tariff laws                                   79
    Arms embargo                                                  80
    Internal affairs                                              80
    Emergency statutes                                            81
    Punishment of violations                                      82
  Congressional investigations                                    82
    Investigations in aid of legislation                          82
    Conduct of executive department                               82
    Private affairs                                               83
    Purpose of inquiry                                            84
    Judicial functions                                            85
    Sanctions of the investigatory power                          85
      Contempt                                                    85
      Criminal prosecutions                                       85
Sections 2 and 3. House of Representatives and Senate:
  Qualifications of Members of Congress                           87
    Right to vote for Representatives and Congressional
        protection thereof                                        87
    When the qualifications must be possessed                     88
    Enlargement of qualifications                                 88
    Inability of States to enlarge                                89
    Census requirement                                            90
Section 4. Elections and meetings:
  Federal legislation under this clause                           92
    Legislature defined                                           93
    Inequality of election districts                              93
    Congressional protection of the electoral process             94
Section 5. Powers and duties of the houses:
  Power to judge elections                                        95
  Quorum to do business                                           96
  Rules of procedure                                              96
  Powers of the houses over members                               97
  Duty to keep a journal                                          98
Section 6. Compensation, immunities, and disabilities of Members:
  When the pay starts                                             99
  Privilege from arrest                                           99
  Privilege of speech or debate                                   99
  Incompatible offices                                           101
Section 7. Legislative process:
  Revenue bills                                                  102
  Approval by the President                                      103
  Veto power                                                     103
  Presentation of resolutions                                    104
Section 8. Powers of Congress:
  Clause 1. Taxing-spending power                                105
    Kinds of taxes permitted                                     105
    Decline of forbidden subject matter test                     105
    Rise and fall of Collector _v._ Day                          106
    Federal taxation of State interests                          106
    Immunity left to the States                                  108
    Conflicting views on the court                               108
    Rule of uniformity                                           109
    Purposes of taxation                                         110
      Regulation by taxation                                     110
      Extermination by taxation                                  110
      Protective tariff                                          112
    Spending for the general welfare                             112
      Hamilton _v._ Madison                                      113
      Triumph of Hamiltonian theory                              113
      Security Act Cases, The                                    115
      Earmarked funds                                            116
      Conditional grants-in-aid                                  116
      "Debts of the United States"                               116
  Clause 2. Borrowing power                                      117
  Clause 3. Power to regulate interstate and foreign commerce    118
    Purpose of the clause                                        118
    Definition of terms: Gibbons _v._ Ogden                      118
      "Commerce"                                                 118
      "Commerce" today                                           119
      "Necessary and proper" clause                              121
      "Among the several States"                                 121
      "Regulate"                                                 123
      Interstate versus foreign commerce                         123
      Instruments of commerce                                    125
    Congressional regulation of waterways                        126
      Navigation                                                 126
      Hydroelectric power                                        130
        Congress' jurisdiction over navigable streams today      131
        Purposes for which power may be generated                131
    Congressional regulation of land transportation              132
      Early Acts: Federal provision for highways                 132
      Beginnings of federal railway regulation                   132
      Regulation of rates: Interstate Commerce Commission        133
      Interstate Commerce Commission today                       135
      Shreveport Case                                            135
      Act of 1920 and State railway rate regulation              136
      Regulation of other agents of carriage and communication   137
      Acts of Congress protective of labor engaged in interstate
          transportation                                         139
        Adair Case                                               141
        Railroad Retirement Act                                  142
      Bills of Lading: Ferger Case                               143
    Congressional regulation of commerce as traffic              144
      Sherman Act: Sugar Trust Case                              144
      Sherman Act revised                                        146
      "Current of commerce" concept: Swift Case                  147
      Danbury Hatters Case                                       149
      Stockyards and Grain Futures Acts                          149
      Securities and Exchange Commission                         150
    Congressional regulation of production and industrial
        relations                                                152
      Antidepression legislation                                 152
      National Industrial Recovery Act                           152
      Schechter Case                                             152
      Agricultural Adjustment Act                                153
      Bituminous Coal Conservation Act                           153
      National Labor Relations Act                               154
      Fair Labor Standards Act: Darby Case                       155
      Agricultural Marketing Agreement Act                       159
    Acts of Congress prohibiting commerce                        160
      Foreign commerce; Jefferson's embargo                      160
      Foreign commerce; protective tariffs                       162
      Foreign commerce; banned articles                          162
      Interstate commerce; conflict of doctrine and opinion      163
      Acts of Congress prohibitive of commerce                   168
      Lottery Case                                               169
      National prohibitions and State police power               169
      Hammer _v._ Dagenhart                                      170
      Interstate commerce in stolen goods banned                 171
      Darby Case                                                 172
      Congress and the federal system                            173
    Commerce clause as a restraint on State power                173
      Doctrinal background                                       173
      Doctrinal background: Webster's contribution               175
      Cooley _v._ Board of Port Wardens                          175
      Judicial formulas                                          176
    Taxing power of the State and foreign commerce               177
      Browne _v._ Maryland: Original package doctrine            177
    State taxation of the subject matter of interstate commerce  178
      General considerations                                     178
      State Freight Tax Case                                     179
      Goods in transit                                           180
      State taxation of manufacturing and mining                 181
      Production for an established market                       182
      Rejection of original package concept in interstate
          commerce                                               182
      Inspection charges                                         183
      Local sales: Peddlers                                      184
      Stoppage in transit                                        185
      Drummer Cases; Robbins _v._ Shelby County Taxing
          District                                               186
      Limitation of the Robbins Case                             187
      Robbins Case today                                         189
      Depression Cases: Use taxes                                189
      Depression Cases: Sales taxes                              190
      End of the Depression Cases                                191
      Taxation of carriage of persons                            192
    State taxation of the interstate commerce privilege:
        Foreign Corporations                                     193
      Doctrinal history                                          193
      License taxes                                              194
      Doctrine of Western Union Telegraph _v._ Kansas            196
      Spread of the doctrine                                     196
      Status of the doctrine today                               197
    State taxation of property engaged in, and of the proceeds
        from, interstate commerce                                198
      General issue                                              198
      Development of the apportionment rule                      199
      Unit rule                                                  200
      Apportioned property taxes                                 201
      Apportioned gross receipts taxes                           202
      Franchise taxes                                            202
      Gross receipts taxes, classes of                           203
      Multiple taxation test                                     204
      Recent cases                                               206
      Taxes on net income                                        208
      Miscellaneous taxes affecting interstate commerce          209
        Vessels                                                  209
        Airplanes                                                210
        Motor vehicles                                           211
        Public utilities: Regulatory charges                     213
    Dominance of Congress                                        214
      McCarran Act: Regulation of insurance                      214
    Police power and foreign commerce                            215
      Origin of police power                                     215
      State curbs on entry of foreigners                         216
      State quarantine laws                                      217
      State game protection and foreign commerce                 217
    Police power and interstate commerce                         217
      General principles                                         217
    State regulation of agencies of interstate commerce          220
      Railway rate regulation                                    220
      Adequate service regulations                               221
      Safety and other regulations                               221
      Invalid State regulations                                  222
      State regulation of length of trains                       223
      Lesson of Southern Pacific Co. _v._ Arizona                225
      State regulation of motor vehicles: Valid regulations      226
      Invalid State acts affecting motor carriers                227
      Transportation agencies                                    228
      Navigation; general doctrine                               228
      Bridges, dams, ferries, wharves                            230
        Ferries                                                  231
      Telegraphs and telephones                                  231
      Gas and electricity                                        233
      Foreign corporations                                       234
      Miscellaneous                                              234
        Banks and banking                                        234
        Brokers                                                  235
        Commission men                                           235
        Attachment and garnishment                               235
        Statutory liens                                          235
    Police power and the subject matter of commerce              235
      Scope of the police power                                  235
      Quarantine laws                                            236
      State inspection laws                                      237
      State prohibition laws: The original package doctrine      238
      Oleomargarine and cigarettes                               239
      Demise of the original package doctrine                    240
      Curbs on the interstate movement of persons                241
      State conservation and embargo measures                    242
      State conservation and embargo measures: The Milk Cases    244
      State conservation and embargo measures: The Shrimp Cases  245
    Concurrent federal and State legislation                     246
      General issue                                              246
      Hepburn Act                                                246
      Quarantine Cases                                           248
      Recent cases sustaining State legislation                  249
      Recent cases nullifying State action                       250
      Federal versus State labor laws                            251
    Commerce with Indian Tribes                                  252
      United States _v._ Kagama                                  252
  Clause 4. Naturalization and bankruptcies                      254
    Naturalization and citizenship                               254
      Categories of naturalized persons                          254
      Who are eligible for naturalization                        255
      Procedure of naturalization                                256
      Rights of naturalized persons                              257
      Congress' power exclusive                                  258
      Right of expatriation: Loss of citizenship                 258
    Exclusion of aliens                                          259
    Bankruptcy                                                   262
      Persons who may be released from debt                      262
      Liberalization of relief granted                           262
      Constitutional limitations on the bankruptcy power         263
      Power not exclusive                                        264
      Constitutional status of State insolvency laws             264
  Clauses 5 and 6. Fiscal and monetary powers of Congress        265
    Coinage, weights, and measures                               265
    Punishment of counterfeiting                                 266
    Borrowing power versus the fiscal power                      266
  Clause 7. Postal power                                         267
    "Establish"                                                  267
    Powers to protect the mails                                  268
    Antislavery and the mails                                    268
    Power to prevent harmful use of the postal facilities        268
    Exclusion power as an adjunct to other powers                269
    State regulations affecting the mails                        270
  Clause 8. Copyrights and Patents                               271
    Scope of the power                                           271
    Patentable discoveries                                       271
    Procedure in issuing patents                                 274
    Nature and scope of the right secured                        274
    Power of Congress over patent rights                         275
    State power affecting patents and copyrights                 276
    Trade-marks and advertisements                               276
  Clause 9. _See_ article III                                    277
  Clause 10. Piracies and felonies                               277
    Origin of the clause                                         277
    Definition of offenses                                       277
    Extraterritorial reach of the power                          278
  Clauses 11, 12, 13, and 14. War: Military establishments       279
    War power                                                    279
      Source and scope                                           279
      An inherent power                                          280
      A complexus of granted powers                              281
      Declaration of war: When required                          281
      Prize Cases, The, (1863)                                   282
    Power to raise and maintain armed forces                     283
      Purpose of specific grants                                 283
      Time limit on appropriations for the army                  283
      Establishment of the air force                             284
      Conscription                                               284
      Care of the armed forces                                   285
      Trial and punishment of offenses                           285
    War legislation                                              286
      Revolutionary war legislation                              286
      Civil War legislation                                      287
      World War I legislation                                    287
      World War II legislation                                   288
      Mobilization of industrial resources                       288
      Delegation of legislative power in wartime                 289
        Mergence of legislative and executive in wartime         290
        Doctrine of Lichter _v._ United States                   290
      War powers in time of peace                                291
        Atomic Energy Act                                        292
      Postwar legislation                                        292
    Private rights in wartime                                    293
      Enemy country                                              293
      Theatre of military operations                             294
      Enemy property                                             294
      Prizes of war                                              295
      Police regulations: Rent control                           296
      Personal liberty in wartime                                297
      Alien enemies                                              297
      Eminent domain                                             298
  Clauses 15 and 16. Militia                                     299
    Militia clauses                                              299
      Calling out the militia                                    299
      Regulation of the militia                                  299
  Clause 17. Seat of government, etc.                            300
    Seat of government                                           300
      Nature and extent of rights ceded to United States         301
      Retrocession of Alexandria county                          301
      Continuance of State laws                                  302
      Status of the district today                               302
      Legislative power over the district                        303
      Taxation in the district                                   303
      Delegation of legislative power to municipal officers      304
      Courts of the district                                     304
    Authority over places purchased                              305
      "Places"                                                   305
      Duration of federal jurisdiction                           305
      Reservation of jurisdiction by States                      306
  Clause 18. "Necessary and proper" clause                       307
    Coefficient or elastic clause                                307
      Scope of incidental powers                                 307
      Operation of coefficient clause                            308
      Definition and punishment of crimes                        308
      Chartering of banks                                        309
      Currency regulations                                       309
      Power to charter corporations                              310
      Courts and judicial proceedings                            310
      Special acts concerning claims                             311
      Maritime law                                               311
Section 9. Powers denied to Congress                             312
  General purpose of the section                                 312
  Clause 1. Importation of slaves                                312
  Clause 2. Suspension of the privilege of the writ of habeas
      corpus                                                     312
    Habeas corpus                                                312
      Purpose of the writ                                        312
      Errors which may be corrected on habeas corpus             313
      Habeas corpus not a substitute for appeal                  314
      Issuance of the writ                                       314
      Suspension of the privilege                                315
  Clause 3. Attainder and ex post facto laws                     315
    Bills of attainder                                           315
    Ex post facto laws                                           316
      Definition                                                 316
      What constitutes punishment                                317
      Changes in place or mode of trial                          317
  Clause 4. Capitation and direct taxes                          317
    Direct taxes                                                 317
      The Hylton case                                            317
      From the Hylton to the Pollock case                        318
      Restriction of the Pollock decision                        319
      Miscellaneous                                              321
  Clause 5. Export duties                                        321
    Taxes on exports                                             321
      Stamp taxes                                                322
  Clause 6. "No preference" clause                               322
  Clause 7. Appropriations and accounting of public mon          323
    Appropriations                                               323
    Payment of claims                                            324
  Clause 8. Titles of nobility and gifts from foreign
      States                                                     324
Section 10. Powers denied to the States                          325
  Clause 1. Not to make treaties, coin money, pass ex post
      facto laws, impair contracts, etc.                         325
    Treaties, alliances, or confederations                       325
    Bills of credit                                              326
    Legal tender                                                 326
    Bills of attainder                                           326
    Ex post facto laws                                           327
      Scope of provision                                         327
      Denial of future privileges to past offenders              327
      Changes in punishment                                      328
      Changes in procedure                                       328
    Obligation of contracts                                      329
      Definition of terms                                        329
        "Law"                                                    329
        Status of judicial decisions                             329
        "Obligation"                                             332
        "Impair"                                                 332
        "Contracts," extended to cover public contracts          332
      Fletcher _v._ Peck                                         335
      New Jersey _v._ Wilson                                     336
      Corporate charters; Different ways of regarding            336
      Dartmouth College case                                     338
      Classes of cases under the clause                          339
      Public grants                                              339
        Municipal corporations                                   339
        Public offices                                           340
        Revocable privileges versus "contracts": Tax exemptions  341
        Vested rights                                            343
      Reservation of the right to alter and repeal               343
        Right to reserve: When limited                           343
        Corporations as persons subject to the law               345
        Corporations and the police power                        345
      Strict construction of public grants                       346
        Charles River Bridge case                                346
        Application of the strict construction rule              346
        Strict construction of tax exemptions                    347
        Strict construction and the police power                 348
      Doctrine of inalienable State powers                       349
        Eminent domain power inalienable                         349
        Taxing power not inalienable                             350
        Police power: When inalienable                           351
      Private contracts                                          352
        Scope of the term                                        352
        Source of the obligation                                 352
        Ogden _v._ Saunders                                      353
      Remedy a part of the obligation                            354
        Establishment of the rule                                354
        Qualifications of the rule                               355
        Municipal Bond cases                                     356
      Private contracts and the police power                     357
        Emergency legislation                                    358
        Individual rights versus public welfare                  359
      Evaluation of the clause today                             359
      Statistical data pertinent to the clause                   361
  Clause 2. Not to levy duties on exports and imports            362
    Duties on exports and imports                                362
      Scope                                                      362
      Privilege taxes                                            363
      Property taxes                                             364
      Inspection laws                                            364
  Clause 3. Not to lay tonnage duties, keep troops, make
      compacts, or engage in war                                 365
    Tonnage duties                                               365
    Keeping troops                                               366
    Interstate compacts                                          366
      Background of clause                                       366
      Subject matter of interstate compacts                      368
      Consent of Congress                                        368
      Grants of franchise to corporation by two States           369
      Legal effect of interstate compacts                        369


LEGISLATIVE DEPARTMENT


Article I

Section 1. All legislative Powers herein granted shall be
vested in a Congress of the United States, which shall consist of a
Senate and House of Representatives.


Doctrine of Enumerated Powers

Two important doctrines of Constitutional Law--that the Federal
Government is one of enumerated powers and that legislative power may
not be delegated--are derived in part from this section. The classical
statement of the former is that by Chief Justice Marshall in McCulloch
_v._ Maryland: "This government is acknowledged by all, to be one of
enumerated powers. The principle, that it can exercise only the powers
granted to it, would seem too apparent, to have required to be enforced
by all those arguments, which its enlightened friends, while it was
depending before the people, found it necessary to urge; that principle
is now universally admitted."[1] That, however, "the executive power" is
not confined to the items of it which are enumerated in article II was
asserted early in the history of the Constitution by Madison and
Hamilton alike and is today the doctrine of the Court;[2] and a similar
latitudinarian conception of "the judicial power of the United States"
was voiced in Justice Brewer's opinion for the Court in Kansas _v._
Colorado.[3] But even when confined to "the legislative powers herein
granted," the doctrine is severely strained by Marshall's conception of
some of these as set forth in his McCulloch _v._ Maryland opinion: This
asserts that "the sword and the purse, all the external relations, and
no inconsiderable portion of the industry of the nation, are intrusted
to its government";[4] he characterizes "the power of making war," of
"levying taxes," and of "regulating commerce" as "great, substantive and
independent powers";[5] and the power conferred by the "necessary and
proper" clause embraces, he declares, "all [legislative] means which are
appropriate" to carry out "the legitimate ends" of the Constitution,
unless forbidden by "the letter and spirit of the Constitution."[6] Nine
years later, Marshall introduced what Story in his Commentaries labels
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 field, the primary purpose of the Constitution was to carve from
the general mass of legislative powers _then possessed by the states_
such portions as it was thought desirable to vest in the federal
government, leaving those not included in the enumeration still in the
states.... That this doctrine applies only to powers which the states
had, is self evident. And since the states severally never possessed
international powers, such powers could not have been carved from the
mass of state powers but obviously were transmitted to the United States
from some other source.... A political society cannot endure without a
supreme will somewhere. Sovereignty is never held in suspense. When,
therefore, the external sovereignty of Great Britain in respect of the
colonies ceased, it immediately passed to the Union.... It results that
the investment of the federal government with the powers of external
sovereignty did not depend upon the affirmative grants of the
Constitution. The powers to declare and wage war, to conclude peace, to
make treaties, to maintain diplomatic relations with other
sovereignties, if they had never been mentioned in the Constitution,
would have vested in the federal government as necessary concomitants of
nationality."[18] Yet for the most part, these holdings do not, as
Justice Sutherland suggests, directly affect "the internal affairs" of
the nation; they touch principally its peripheral relations, as it
were. The most serious inroads on the doctrine of enumerated powers are,
in fact, those which have taken place under cover of the doctrine--the
vast expansion in recent years of national legislative power in the
regulation of commerce among the States and in the expenditure of the
national revenues; and verbally at least Marshall laid the ground for
these developments in some of the phraseology above quoted from his
opinion in McCulloch _v._ Maryland.


Nondelegability of Legislative Power


ORIGIN OF DOCTRINE

At least three distinct ideas have contributed to the development of the
principle that legislative power cannot be delegated. One is the
doctrine of separation of powers: Why go to the trouble of separating
the three powers of government if they can straightway remerge on their
own motion? The second is the concept of due process of law, which
precludes the transfer of regulatory functions to private persons.
Lastly, there is the maxim of agency "_Delegata potestas non potest
delegari_," which John Locke borrowed and formulated as a dogma of
political science.[19] In Hampton Jr. & Co. _v._ United States,[20]
Chief Justice Taft offered the following 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, or to the
Judicial branch, or if by law it attempts to invest itself or its
members with either executive power or judicial power. This is not to
say that the three branches are not co-ordinate parts of one government
and that each in the field of its duties may not invoke the action of
the two other branches in so far as the action invoked shall not be an
assumption of the constitutional field of action of another branch. In
determining what it may do in seeking assistance from another branch,
the extent and character of that assistance must be fixed according to
common sense and the inherent necessities of the governmental
co-ordination."[21]


FUNCTIONS WHICH MAY BE DELEGATED

Yielding to "common sense and the inherent necessities of governmental
co-ordination" the Court has sustained numerous statutes granting in the
total vast powers to administrative or executive agencies. Two 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 empowered to "fill up the details"
of a statute.[22] The second is that Congress may legislate
contingently, leaving to others the task of ascertaining the facts which
bring its declared policy into operation.[23]


POWER TO SUPPLEMENT STATUTORY PROVISIONS

The pioneer case which recognized the right of Congress to lodge in
another department the power to "fill up the details" of a statute arose
out of the authority given to federal courts to establish rules of
practice, provided such rules were not repugnant to the laws of the
United States. Chief Justice Marshall overruled the 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 exercise itself. * * * The line has not been
exactly drawn which separates those important subjects, which must be
entirely regulated by the legislature itself, from those of less
interest, in which a general provision may be made, and power given to
those who are to act under such general provisions, to fill up the
details."[24]


STANDARDS FOR ADMINISTRATIVE ACTION

Before another agency can "fill up the details," Congress must enact
something to be thus supplemented. In the current idiom, the lawmakers
must first adopt a policy or set up an "intelligible standard" to which
administrative action must conform.[25] But the Court has taken a
generous view of what constitutes a policy or standard. Although it has
said that "procedural safeguards cannot validate an unconstitutional
delegation,"[26] the nature of the proceedings appears to be one of the
elements weighed in determining whether a specific delegation is
constitutional.[27] In cases where the delegated power is exercised by
orders directed to particular persons 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, somewhat
more elaborate, but still very broad, standards have been deemed
adequate for various price fixing measures.[32] In a recent case,[33]
the Court sustained a statute which, without any explicit standards
whatever, authorized the Federal Home Loan Bank Board to make rules and
regulations for the supervision of Federal Savings and Loan
Associations. That decision was influenced by the fact that the
corporation was chartered by federal law as well as by the peculiar
problems involved in the supervision of financial institutions. The
Court was at pains to make clear that this decision would not
necessarily govern the disposition of dissimilar cases.[34]


RULE-MAKING POWER

After Wayman _v._ Southard, nearly three quarters of a century elapsed
before the Court had occasion to approve the delegation to an executive
officer of power to issue regulations for the administration of a
statute. In 1897 it sustained the authority granted to the Commissioner
of Internal Revenue to designate the "marks, brands and stamps" to be
affixed to packages of oleomargarine.[35] Soon thereafter it upheld an
act which directed the Secretary of the Treasury to promulgate minimum
standards of quality 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 schedules
for the distribution of milk;[41] or for all commodities[42] and for
rental housing[43] in time of war; regulating wages and prices in the
production and distribution of coal;[44] imposing a curfew to protect
military resources in designated areas from espionage and sabotage;[45]
providing for the appointment of receivers or conservators for Federal
Savings and Loan Associations;[46] allotting marketing quotas for
tobacco;[47] and prescribing methods of accounting for carriers in
interstate commerce.[48]


ORDERS DIRECTED TO PARTICULAR PERSONS

The now familiar pattern of regulation of important segments of the
economy by boards or commissions which combine in varying proportions
the functions of all three departments of government was first
established by the States in the field of railroad rate regulation.
Discovering that direct action was impracticable, the State legislatures
created commissions to deal with the problem. One of the pioneers in
this development was Minnesota, whose Supreme Court justified the
practice in an opinion which, with the implied[49] and later the
explicit,[50] endorsement of the Supreme Court, practically settled the
law on this point: "If such a power is to be exercised at all, it can
only be satisfactorily done by a board or commission, constantly in
session, whose time is exclusively given to the subject, and who, after
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 national banks to act as
fiduciaries;[54] the authority of the Secretary of Labor to deport
aliens of certain enumerated classes, if after hearing he found such
aliens to be "undesirable residents";[55] the responsibility of the
Interstate Commerce Commission to approve railroad consolidations found
to be in the "public interest";[56] and the powers of the Federal Radio
Commission[57] and the Federal Communications Commission[58] to license
broadcasting stations as "public convenience, interest and necessity"
may require. The terms, however, in which a statute delegates authority
to an administrative agent are subject to judicial review; and in a
recent case the Court disallowed an order of the Secretary of
Agriculture proporting resting on Sec. 8 of the Agricultural Marketing
Agreement Act of 1937[59] as _ultra vires_.[60]


DELEGATION TO PRIVATE PERSONS

Although in a few early cases the Supreme Court enforced statutes which
gave legal effect to local customs of miners with respect to mining
claims on public lands,[61] and to standards adopted by railroads for
equipment on railroad cars,[62] it held, in Schechter Poultry Corp. _v._
United States,[63] and Carter _v._ Carter Coal Company[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 prescribed majority of the persons affected have been
upheld.[65] The position of the Court is that such a requirement does
not involve any delegation of legislative authority, since Congress has
merely placed a restriction upon its own regulation by withholding its
operation in a given case unless it is approved upon a referendum.[66]


POWER TO GIVE EFFECT TO CONTINGENT LEGISLATION

An entirely different problem arises when, instead of directing another
department of government to apply a general statute to individual cases,
or to supplement it by detailed regulation, Congress commands that a
previously enacted statute be revived, suspended or modified, or that a
new rule be put into operation, upon the finding of certain facts by an
executive or administrative officer. Since the delegated function in
such cases is not 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 the President found
and proclaimed that France had abandoned certain practices which
violated the neutral commerce of the United States. To the objection
that this was an invalid delegation of legislative power, the Court
answered briefly that "we can see no sufficient reason, why the
legislature should not exercise its discretion in reviving the act of
March 1st, 1809, either expressly or conditionally, as their judgment
should direct."[68]


MODIFICATION OF TARIFF LAWS

This point was raised again in Field _v._ Clark,[69] where the Tariff
Act of 1890 was assailed as unconstitutional because it directed the
President to suspend the free importation of enumerated commodities "for
such time as he shall deem just" if he found that other countries
imposed upon agricultural or other products of the United States duties
or other exactions which "he may deem to be reciprocally unequal and
unjust." In sustaining this statute the Court relied heavily upon two
factors: (1) legislative 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. Nothing involving the
expediency or the just operation of such legislation was left to the
determination of the President. * * * He had no discretion in the
premises except in respect to the duration of the suspension so
ordered."[71] By similar reasoning, the Court sustained the flexible
provisions of the Tariff Act of 1922 whereby duties were increased or
decreased to reflect differences in cost of production at home and
abroad, as such differences were ascertained and proclaimed by the
President.[72]


ARMS EMBARGO

That the delegation of discretion in dealing with foreign relations
stands upon a different footing than the transfer of authority to
regulate domestic concerns was clearly indicated in United States _v._
Curtiss-Wright Export Corp.[73] There the Court upheld the Joint
Resolution of Congress which made it unlawful to sell arms to certain
warring countries "if the President finds that the prohibition of the
sale of arms and munitions 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 delicate, plenary and exclusive
power of the President as the sole organ of the Federal Government in
the field of international relations--* * *, Congressional legislation
which is to be made effective through negotiation and inquiry within the
international field must often accord to the President a degree of
discretion and freedom from statutory restriction which would not be
admissible were domestic affairs alone involved."[74]


INTERNAL AFFAIRS

Panama Refining Co. _v._ Ryan[75] was the first case in which the
President had been authorized to put into effect by proclamation, a new
and independent rule pertaining to internal affairs. One section of the
National Industrial Recovery Act authorized the President to forbid the
shipment in interstate commerce of oil produced or withdrawn from
storage in violation of State law. Apart from the purposes broadly
stated in the first section--economic recovery and conservation of
natural resources--the measure contained no standard or statement of
policy by which the President should be guided in determining whether 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 interested parties. Upon
consideration of factors enumerated in the law and upon finding that the
conditions specified in the law were fulfilled, such Committees were
empowered to recommend and the Administrator to adopt, higher minimum
wage rates for particular industries. Emphasizing the procedure which
the agency was directed to follow and the fact that it would be
impossible for Congress to prescribe specific minimum wages for
particular industries,[77] a unanimous court sustained the law on the
ground that the sole function of the Administrator was to put into
effect the definite policy adopted by the legislators.


EMERGENCY STATUTES

Occupying a midway station between legislation which deals with foreign
affairs and purely domestic legislation is what may be termed "emergency
statutes." These are largely the outgrowth of the two World Wars. Thus
on December 16, 1950, President Truman issued a proclamation 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 to the President to
determine the question of emergency, and the White House assumption
seems to be that they all do so. Many of the provisions thus activated
delegate powers of greater or less importance to the President himself
or remove statutory restrictions thereon.[78]


PUNISHMENT OF VIOLATIONS

If Congress so provides, violations of valid administrative regulations
may be punished as crimes.[79] But the penalties must be provided in the
statute itself; additional punishment cannot be imposed by
administrative action.[80] In an early case, the Court held that a
section prescribing penalties for any violation of a statute did not
warrant a prosecution for wilful disobedience of regulations 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 reasonable measure for effecting a
fair allocation of fuel oil, rather than as a means of punishment for an
offender. In another OPA case, the Court ruled that in a criminal
prosecution, a price regulation was subject to the same rule of strict
construction as a statute, and that omissions from, or indefiniteness
in, such a regulation, could not be cured by the Administrator's
interpretation thereof.[83]


Congressional Investigations


INVESTIGATIONS IN AID OF LEGISLATION

No provision of the Constitution expressly authorized either house of
Congress to make investigations and exact testimony to the end that it
may exercise its legislative function effectively and advisedly. But
such a power 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 it appointed a committee to investigate the disaster
to General St. Clair and his army in the Northwest and empowered it to
"call for such persons, papers, and records, as may be necessary to
assist their inquiries."[85]


CONDUCT OF EXECUTIVE DEPARTMENT

For many years the investigating function of Congress was limited to
inquiries into the administration of the Executive Department or of
instrumentalities of the Government. Until the administration of Andrew
Jackson this power was not seriously challenged.[86] During the
controversy over renewal of the charter of the Bank of the United
States, John Quincy Adams contended that an unlimited inquiry into the
operations of the bank would be beyond the power of the House.[87] Four
years later the legislative power of investigation was challenged by the
President. A committee appointed by the House of Representatives "with
power to send for persons and papers, and with instructions to inquire
into the condition of the various executive departments, the ability 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 sharply across sectional and party lines, the Senate voted
overwhelmingly to imprison the contumacious witness.[90] Notwithstanding
this firmly established legislative practice the Supreme Court took a
narrow view of the power in the case of Kilbourn _v._ Thompson.[91] It
held that the House of Representatives had overstepped its jurisdiction
when it instituted an investigation of losses suffered by the United
States as a creditor of Jay Cooke and Company, whose estate was being
administered in bankruptcy by a federal court. But nearly half a century
later, in McGrain _v._ Daugherty,[92] it ratified in sweeping terms, the
power of Congress to inquire into the administration of an executive
department and to sift charges of malfeasance in such administration.


PRIVATE AFFAIRS

Beginning with the resolution adopted by the House of Representatives in
1827 which vested its Committee on Manufactures "with the power to send
for persons and papers with a view to ascertain and report to this House
such facts as may be useful to guide the judgment of this House in
relation to a revision of the tariff duties on imported goods,"[93] the
two Houses have asserted the right to inquire into private affairs when
necessary to enlighten their judgment 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, established by Congress, possesses, or can be invested with, a
general power of making inquiry into the private affairs of the
citizen."[96] Finally, however, in McGrain _v._ Daugherty,[97] the power
of either House "to compel a private individual to appear before it or
one of its committees and give testimony needed to enable it efficiently
to exercise a legislative function belonging to it under the
Constitution, * * *"[98] was judicially recognized and approved.


PURPOSE OF INQUIRY

In the absence of any showing that legislation was contemplated as a
result of the inquiry undertaken in Kilbourn _v._ Thompson, the Supreme
Court concluded that the purpose was an improper one--to pry into
matters with which the judiciary alone was empowered to deal.[99]
Subsequent cases have given the legislature the benefit of a presumption
that its object is legitimate. In re Chapman[100] established the
proposition that to make an investigation lawful "it was certainly not
necessary that the resolutions should declare in advance what the Senate
meditated doing when the investigation was concluded."[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 only in the courts wherein they were pending
and that the committee avowedly had departed from any inquiry in aid of
legislation. The Senate prudently had directed the investigating
committee to ascertain what, if any, other or additional legislation may
be advisable. Conceding "that Congress is without authority to compel
disclosures for the purpose of aiding the prosecution of pending suits,"
the Court declared that the authority "to require pertinent disclosures
in aid of its own constitutional power is not abridged because the
information sought to be elicited may also be of use in such
suits."[104]


JUDICIAL FUNCTIONS

When either House exercises a judicial function, as in judging of
elections or determining whether a member should be expelled, it is
clearly entitled to compel the attendance of witnesses to disclose the
facts upon which 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 conduct and to summon private individuals to give
testimony concerning it.[105] The decision in Barry _v._ United States
ex rel. Cunningham[106] sanctioned the exercise of a similar power in
investigating a Senatorial election.


SANCTIONS OF THE INVESTIGATORY POWER


Contempt

Explicit judicial recognition of the right of either House of Congress
to commit for contempt a witness who ignores its summons or refuses to
answer its inquiries dates from McGrain _v._ Daugherty. But the
principle there applied had its roots in an early case, Anderson _v._
Dunn,[107] which affirmed in broad terms the right of either branch of
the legislature to attach and punish a person other than a member for
contempt of its authority--in that case an attempt to bribe one of its
members. The right to punish a contumacious witness was conceded in
Marshall _v._ Gordon,[108] although the Court there 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, in Jurney _v._ MacCracken[110] that the Senate had
no power to punish a witness who, having been commanded to produce
papers, destroyed them after service of the subpoena, because the "power
to punish for contempt may never be exerted, in the case of a private
citizen, solely _qua_ punishment. * * * the power to punish ceases as
soon as the obstruction has been removed, or its removal has become
impossible; * * *" The Court confirmed the power to punish for a past
contempt as an appropriate means for vindicating "the established and
essential privilege of requiring the production of evidence."[111]


Criminal Prosecutions

Under the rule laid down by Anderson _v._ Dunn, imprisonment for
contempt of one of the Houses of Congress could not extend beyond the
adjournment of the body which ordered it.[112] This limitation seriously
impaired the efficacy of such sanction. Accordingly, in 1857 Congress
found it necessary to provide criminal penalties for recalcitrant
witnesses, in order to make its power to compel testimony more
effective. The Supreme Court held that the purpose of this statute was
merely to supplement the power of contempt by providing additional
punishment, 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 person to produce
records within her custody and control pursuant to a lawful subpoena
issued by a committee of the House of Representatives, the Supreme Court
ruled that the presence of a quorum of the committee at the time of the
return of the subpoena was not an essential element of the offense.[114]
Previously the Court had held that a prosecution could not be maintained
under a general perjury statute for false testimony given before a
Congressional committee unless a quorum of the committee was present
when the evidence was given.[115]


Section 2. Clause 1. The House of Representatives shall be
composed of Members chosen every second Year by the People of the
several States, and the Electors in each State shall have the
Qualifications requisite for Electors of the most numerous Branch of the
State Legislature.

Clause 2. No Person shall be a Representative who shall not have
attained to the Age of twenty five Years, and been seven Years a Citizen
of the United States, and who shall not, when elected, be an Inhabitant
of the State in which he shall be chosen.


Qualifications of Members of Congress


CONGRESSIONAL PROTECTION OF RIGHT TO VOTE FOR REPRESENTATIVES

Although the qualifications of electors of Members of Congress are
defined by State law,[116] the right to vote for such Representatives is
derived from the Federal Constitution.[117] Unlike the rights guaranteed
by the Fourteenth and Fifteenth Amendments, this privilege is secured
against the actions of individuals as well as of the States.[118] It
embraces the right to cast a ballot and to have it counted
honestly.[119] 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 count ballots lawfully cast,[123] or dilution of their value
by stuffing the ballot box with fraudulent ballots[124] constitutes a
denial of the constitutional right to elect Representatives in Congress.
But the bribery of voters, although within reach of Congressional power
under other clauses of the Constitution, is not deemed to be an
interference with the rights guaranteed by this section to other
qualified voters.[125]


WHEN THE ABOVE QUALIFICATIONS MUST BE POSSESSED

The principal disputes which have arisen under these sections have
related to the time as of which members-elect must fulfill the
conditions of eligibility, and whether additional requirements may be
imposed by federal or State law. 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 that it is
sufficient if the requirements are met when the oath is administered.
Thus persons elected to either House before attaining the required age
or term of citizenship have been admitted as soon as they became
qualified.[126]


ENLARGEMENT OF QUALIFICATIONS

Writing in The Federalist[127] with reference to the election of Members
of Congress, Hamilton expressed the opinion that "the qualifications of
persons who may * * * be chosen * * * are defined and fixed in the
Constitution and are unalterable by the legislature." The question
remained academic until the Civil War, when Congress passed a law
requiring its members to take an oath that they had never been disloyal
to the Federal Government. In subsequent contests over the seating of
men charged with disloyalty, the right of Congress to establish by law
other qualifications for its members than those contained in the
Constitution was sharply challenged. Nevertheless, both the House and
Senate, relying on this act, did refuse to seat several 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's tenure as a Senator,
and left undecided the power of Congress to impose additional
qualifications (or disqualifications).[130] In exercising the power
granted by section 5 to judge the qualifications of its own members,
each House has asserted the power to inquire into the conduct of a
member-elect prior to his election. In 1900 the House of Representatives
refused to seat a person who practiced polygamy,[131] and in 1928 the
Senate voted to exclude a Senator-elect on the ground that his
acceptance of large campaign contributions from persons who were subject
to regulation by a State Administrative Commission of which he had been
Chairman were "contrary to sound public policy" and tainted his
credentials with fraud and corruption.[132]


INABILITY OF THE STATES TO ENLARGE

A State may not add to the qualifications prescribed by the Constitution
for members of the Senate and House of Representatives. Asserting this
principle, the House in 1807 seated a member whose election was
contested on the ground that he had 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 Senate
have seated members elected during their term of office as State judges,
despite the provision of State constitutions purporting to bar the
election of judges to any other office under the State or the United
States during such term.[134]


Clause 3. [Representatives and direct Taxes shall be apportioned among
the several States which may be included within this Union, according to
their respective Numbers, which shall be determined by adding to the
whole Number of free Persons, including those bound to Service for a
Term of Years, and excluding Indians not taxed, three fifths of all
other 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
Representative; and until such enumeration shall be made, the State of
New Hampshire shall be entitled to chuse three, Massachusetts eight,
Rhode-Island and Providence Plantations one, Connecticut five, New-York
six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six,
Virginia ten, North Carolina five, South Carolina five, and Georgia
three.


THE CENSUS REQUIREMENT

While section 2 expressly provides for an enumeration of persons,
Congress has repeatedly directed an enumeration not only of the free
persons in the States, but also of those in the territories, and has
required all persons over eighteen years of age to answer an
ever-lengthening list of inquiries concerning their personal and
economic affairs. This extended scope of the census has received the
implied approval of the Supreme Court;[136] 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
reapportionment after the census of 1920, being unable to reach
agreement for allotting representation without further increasing the
size of the House. Ultimately, by the act of June 18, 1929,[137] it
provided that the membership of the House of Representatives should
henceforth be restricted to 435 members, to be distributed among the
States by the so-called "method of major fractions" which had been
earlier employed in the apportionment of 1911.


Clause 4. When vacancies happen in the Representation from any State,
the Executive Authority thereof shall issue Writs of Election to fill
such Vacancies.

Clause 5. The House of Representatives shall chuse their Speaker and
other Officers; and shall have the sole Power of Impeachment.


Section 3. Clause 1. [The Senate of the United States shall be
composed of two Senators from each State, chosen by the Legislature
thereof, for six Years; and each Senator shall have one vote].

Clause 2. Immediately after they shall be assembled in Consequence of
the first Election, they shall be divided as equally as may be into
three classes. The Seats of the Senators of the first Class shall be
vacated at the 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 happen by Resignation, or otherwise, during the Recess
of the Legislature of any State, the Executive thereof may make
temporary Appointments until the next Meeting of the Legislature, which
shall then fill such Vacancies].[138]

Clause 3. No Person shall be a Senator who shall not have attained to
the Age of thirty Years, and been nine Years a Citizen of the United
States, and who shall not, when elected, be an Inhabitant of that State
for which he shall be chosen.

Clause 4. The Vice President of the United States shall be President of
the Senate, but shall have no Vote, unless they be equally divided.

Clause 5. The Senate shall chuse their other Officers, and also a
President pro tempore, in the Absence of the Vice President, or when he
shall exercise the Office of President of the United States.

Clause 6. The Senate shall have the sole Power to try all Impeachments.
When sitting for that Purpose, they shall be on Oath or Affirmation.
When the President of the United States is tried, the Chief Justice
shall preside: And no Person shall be convicted without the Concurrence
of two thirds of the Members present.

Clause 7. Judgment in Cases of Impeachment shall not extend further than
to removal from Office, and disqualification to hold and enjoy any
Office of honor, Trust or Profit under the United States; but the Party
convicted shall nevertheless be liable and subject to Indictment, Trial,
Judgment and Punishment, according to Law.


Section 4. Clause 1. The Times, Places and Manner of holding
Elections for Senators and Representatives, shall be prescribed in each
State by the Legislature thereof; but the Congress may at any time by
Law make or alter such Regulations, except as to the Places of chusing
Senators.


Federal Legislation Under This Clause

Not until 1842 did Congress undertake to exercise the power to regulate
the "times, places and manner of holding elections for Senators and
Representatives." In that year it passed a law requiring the election of
Representatives by districts.[139] Prior to that time some of the States
had sought to increase their influence by electing all of their
Representatives on a general ticket. The frequent deadlocks between the
two Houses of State legislatures with respect to the election of
Senators prompted Congress to pass a further act in 1866, which
compelled the two bodies to meet in joint session on a specified day,
and to meet everyday thereafter and vote for a Senator until one was
elected.[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 registration of voters and election tally sheets. After
twenty-four years experience Congress repealed those portions of the
Reconstruction legislation which dealt specifically with elections, but
left in effect those dealing generally with Civil Rights.[142] As seen
earlier, those sections have been invoked for the prosecution of
election offenses which interfere with the rights of voters guaranteed
by the second section of this article. The election laws, of the
Reconstruction period were held invalid in part as applied to municipal
elections,[143] but were found to be a constitutional exercise of the
authority conferred by this section with respect to the election of
members of Congress.[144]


LEGISLATURE DEFINED

While requiring the election of Representatives by districts, Congress
has left it to the States to define the areas from which members should
be chosen. This has occasioned a number of disputes concerning the
validity of action taken by the States. In Ohio ex rel. Davis _v._
Hildebrant,[145] a requirement 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 reapportionment bill was
questioned. Contrasting this function with other duties committed to
State legislatures by the Constitution, the Court decided that it was
legislative in character and hence subject to gubernatorial veto to the
same extent as ordinary legislation under the terms of the State
constitution.[146]


PRESENT INEQUALITY OF ELECTION DISTRICTS

The Reapportionment Act of 1929[147] omitted a requirement contained in
the 1911 law[148] that Congressional districts be "composed of a
contiguous and compact territory, * * * containing as nearly as
practicable an equal number of inhabitants." Since the earlier act was
not repealed it was argued that the mandate concerning compactness,
contiguity and equality of population of districts was still
controlling. The Supreme Court rejected this view.[149] In Colegrove
_v._ Green,[150] the Illinois Apportionment law, which created districts
now having glaringly 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 Congressional election districts established by
the States must contain approximately equal populations, the
constitutionally guaranteed right to vote and the right to have one's
vote counted clearly imply the policy that State election systems, no
matter what their form, should be designed to give approximately equal
weight of each vote case. * * * legislation which must inevitably bring
about glaringly unequal representation in the Congress in favor of
special classes and groups should be invalidated, 'whether accomplished
ingeniously or ingenuously'."[152]


CONGRESSIONAL PROTECTION OF THE ELECTORAL PROCESS

Congress can by law protect the voter from personal violence or
intimidation and the election itself from corruption and fraud.[153] To
accomplish these ends it may adopt the statutes of the States and
enforce them by its own sanctions.[154] It may punish a State election
officer for violating his duty under a State law governing Congressional
elections.[155] It may also 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,[157] but this decision
has been greatly weakened, and the right of the National Government to
regulate primary elections conducted under State law for the nomination
of Members of Congress has been squarely recognized where such primary
is made by State law "an integral part of the procedure of choice, or
where in fact the primary effectively controls the choice,..."[158]


Clause 2. [The Congress shall assemble at least once in every Year, and
such Meeting shall be on the first Monday in December, unless they shall
by law appoint a different Day].


Section 5. Clause 1. Each House shall be the Judge of the
Elections, Returns and Qualifications of its own Members, and a Majority
of each shall constitute a Quorum to do Business; but a smaller Number
may adjourn from day to day, and may be authorized to compel the
Attendance of absent Members, in such Manner, and under such Penalties
as each House may provide.

Clause 2. Each House may determine the Rules of its Proceedings, punish
its Members for disorderly Behaviour, and, with the Concurrence of two
thirds, expel a Member.

Clause 3. Each House shall keep a Journal of its Proceedings, and from
time to time publish the same, excepting such Parts as may in their
Judgment require Secrecy; and the Yeas and Nays of the Members of either
House on any question shall, at the Desire of one fifth of those
Present, be entered on the Journal.

Clause 4. Neither House, during the Session of Congress, shall, without
the Consent of the other, adjourn for more than three days, nor to any
other Place than that in which the two Houses shall be sitting.


Powers and Duties of the Houses


POWER TO JUDGE ELECTIONS

Each House, in judging of elections under this clause acts as a judicial
tribunal, with like power to compel attendance of witnesses. In the
exercise of its discretion, it may issue a warrant for the arrest of a
witness to procure his testimony, without previous subpoena, if there is
good reason to 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] Refusal to permit a person
presenting credentials in due form to take the oath of office does not
oust the jurisdiction of the Senate to inquire into the legality of the
election.[162] Nor does such refusal unlawfully deprive the State which
elected such person of its equal suffrage in the Senate.[163]


"A QUORUM TO DO BUSINESS"

For many years the view prevailed in the House of Representatives that
it was necessary for a majority of the members to vote on any
proposition submitted to the House in order to satisfy the
constitutional requirement for a quorum. It was a common practice for
the opposition to break a quorum by refusing to vote. This was changed
in 1890, by a ruling made by Speaker Reed, and later embodied in 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 presence of such majority "it
is therefore within the competency of the House to prescribe any method
which shall be reasonably certain to ascertain the fact."[166] The rules
of the Senate provide for the ascertainment of a quorum only by a roll
call,[167] but in a few cases it has held that if a quorum is present, a
proposition can be determined by the vote of a lesser number of
members.[168]


RULES OF PROCEDURE

In the exercise of their constitutional power to determine their rules
of proceedings the Houses of Congress may not "ignore constitutional
restraints or violate fundamental rights, and there should be a
reasonable relation between the mode or method of proceeding established
by the rule and the result which is sought to be attained. But within
these limitations all matters of method are open to the determination of
the House, * * * The power to make rules is not one which once exercised
is exhausted. It is a continuous power, always subject to be exercised
by the House, and within the limitations suggested, absolute and beyond
the challenge 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 on the ground that inasmuch as a quorum of the
Committee, while present at the outset, was not present at the time of
the alleged perjury, testimony before it was not before a "competent
tribunal" within the sense of the District of Columbia Code.[172] Four
Justices, speaking by Justice Jackson dissented, arguing that under the
rules and practices of the House, "a quorum once established is presumed
to continue unless and until a point of no quorum is raised" and that
the Court was, in effect, invalidating this rule, thereby invalidating
at the same time the rule of self-limitation observed by courts "where
such an issue is tendered."[173]


POWERS OF THE HOUSES OVER MEMBERS

Congress has authority to make it an offense against the United States
for a Member, during his continuance in office, to receive compensation
for services before a government department in relation to proceedings
in which the United States is interested. Such a statute does not
interfere with the legitimate authority of the Senate or House over its
own Members.[174] In upholding 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 action of the Senate
in expelling William Blount in 1797 for attempting to seduce an American
agent among the Indians from his duty and for negotiating for services
in behalf of the British Government among the Indians--conduct which was
not a "statutable offense" and which was not committed in his official
character, nor during the session of Congress nor at the seat of
government.


THE DUTY TO KEEP A JOURNAL

The object of the clause requiring the keeping of a Journal is "to
insure publicity to the proceedings of the legislature, and a
correspondent responsibility of the members to their respective
constituents."[176] When the Journal of either House is put in evidence
for the purpose of determining whether the yeas and nays, were ordered,
and what 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
approval of the President and is deposited in the Department of State,
its authentication as a bill that has passed Congress is complete and
unimpeachable, and it is not competent to show from the Journals of
either House that an act so authenticated, approved, and deposited, in
fact omitted one section actually passed by both Houses of
Congress.[178]


Section 6. Clause 1. The Senators and Representatives shall
receive a Compensation for their Services, to be ascertained by Law, and
paid out of the Treasury of 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 their respective
Houses, and in going to and returning from the same; and for any Speech
or Debate in either House, they shall not be questioned in any other
Place.


Compensation, Immunities and Disabilities of Members


WHEN THE PAY STARTS

A Member of Congress who receives his certificate of admission, and is
seated, allowed to vote, and serve on committees, is _prima facie_
entitled to the seat and salary, even though the House subsequently
declares his seat vacant. The one who contested the election and was
subsequently chosen to fill the vacancy is entitled to salary only from
the time the compensation of such "predecessor" has ceased.[179]


PRIVILEGE FROM ARREST

This clause is practically obsolete. It applies only to arrests in civil
suits, which were still common in this country at the time the
Constitution 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 case. The phrase "treason, felony or breach of the
peace" is interpreted to withdraw all criminal offenses from the
operation of the privilege.[183]


THE PRIVILEGE OF SPEECH OR DEBATE

The protection of this clause is not limited to words spoken in debate,
but is applicable to written reports, to resolutions offered, to the act
of voting and to all things generally done in a session of the House by
one of its members in relation to the business before it.[184] In
Kilbourn _v._ Thompson[185] the Supreme Court quoted with approval the
following excerpt from the opinion of Chief Justice Parsons in the early
Massachusetts of Coffin _v._ Coffin,[186] giving a broad scope to the
immunity of legislators: "'These privileges are thus secured, not with
the intention of protecting the members against prosecutions for their
own benefit, but to support the rights of the people, by enabling their
representatives to execute the functions 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 and against their rules. I do not confine the member to his
place in the House; and I am satisfied that there are cases in which he
is entitled to this privilege when not within the walls of the
representatives' chamber.'"[187] Accordingly the Court ruled that
Members of the House of Representatives were not liable to a suit for
false imprisonment by reason of their initiation and prosecution of the
legislative proceedings under which plaintiff was arrested.[188] Nor
does the claim of an unworthy purpose destroy the privilege.
"Legislators are immune from deterrents to the uninhibited discharge of
their legislative duty, not for their private indulgence but for the
public good. One must not expect uncommon courage even in
legislators".[189]


Clause 2. No Senator or Representative shall, during the Time for which
he was elected, be appointed to any civil Office under the Authority of
the United States, which shall have been created, or the Emoluments
whereof shall have been encreased during such time; and no Person
holding any Office under the United States, shall be a Member of either
House during his Continuance in Office.


INCOMPATIBLE OFFICES

According to legislative precedents, visitors to academies, regents,
directors and trustees of public institutions, and members of temporary
commissions who receive no compensation as such, are not officers within
the constitutional inhibition of section 6.[190] Government contractors
and federal officers who resign before presenting their credentials may
be seated as Members of Congress.[191] In 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 financial position of Justices retiring at seventy and the
term for which Mr. Black had been elected to the Senate from Alabama in
1932 had still some time to run. The appointment was defended by the
argument that inasmuch as Mr. Black was only fifty-one years old at the
time and so would be ineligible for the "increased emolument" for
nineteen years, it was not _as to him_ an increased emolument.[194]


Section 7. Clause 1. All Bills for raising Revenue shall
originate in the House of Representatives; but the Senate may propose or
concur with Amendments as on other Bills.

Clause 2. Every Bill which shall have passed the House of
Representatives and the Senate, shall, before it become a Law, be
presented to the President of the United States; If he approve he shall
sign it, but if not he shall return it, with his Objections to that
House in which it shall have originated, who shall enter the Objections
at large on their Journal, and proceed to reconsider 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
Persons voting for and against the Bill shall be entered on the Journal
of each House respectively. If any Bill shall not be returned by the
President within ten Days (Sundays excepted) after it shall have been
presented to him, the Same shall be a Law, in like Manner as if he had
signed it, unless the Congress by their Adjournment prevent its Return,
in which Case it shall not be a Law.


THE LEGISLATIVE PROCESS


REVENUE BILLS

Only bills to levy taxes in the strict sense of the word are
comprehended by the phrase "all bills for raising revenue"; bills for
other purposes, which incidentally create revenue, are not
included.[195] An act providing a national currency secured by a pledge
of bonds of the United States, which, "in the furtherance of that
object, and also to meet 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 sum for the elimination of grade
crossings and the construction of a union railway station.[197] The
substitution of a corporation tax for an inheritance tax,[198] and the
addition of a section imposing an excise tax upon the use of foreign
built pleasure yachts,[199] have been held to be within the Senate's
constitutional power to propose amendments.


APPROVAL BY THE PRESIDENT

The President is not restricted to signing a bill on a day when Congress
is in session.[200] He may sign within ten days (Sundays excepted) after
the bill is presented to him, even if that period extends beyond the
date of the final adjournment of Congress.[201] His duty 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 satisfactory answer.[202] A bill
becomes law on the date of its approval by the President.[203] When no
time is fixed by the act it is effective from the date of its
approval,[204] which usually is taken to be the first moment of the day,
fractions of a day being disregarded.[205]


THE VETO POWER

If Congress adjourns within ten days (Sundays excepted) of the
presentation of a bill to the President, the return of the bill is
prevented within the meaning of this clause. Consequently it does not
become law if the President does not sign it, but succumbs to what in
Congressional parlance is called a "pocket veto."[206] But a 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] After a bill becomes law the
President has no authority to repeal it. Asserting this truism, the
Supreme Court held in The Confiscation Cases,[209] that the immunity
proclamation issued by the President in 1868 did not require reversal of
a decree condemning property which had been seized under the
Confiscation Act of 1862.[210]


Clause 3. Every Order, Resolution, or Vote to which the Concurrence of
the Senate and House of Representatives may be necessary (except on a
question of Adjournment) 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 him, shall be repassed by two thirds of
the Senate and House of Representatives, according to the Rules and
Limitations prescribed in the Case of a Bill.


PRESENTATION OF RESOLUTIONS

The sweeping nature of this obviously ill-considered provision is
emphasized by the single exception specified to its operation. Actually,
it was impossible from the first to give it any such scope. Otherwise
the intermediate stages of the legislative process would have been
bogged down hopelessly, not to mention other highly undesirable results.
In a report rendered by the Senate Judiciary Committee in 1897 it was
shown that the word "necessary" in the clause had come in practice to
refer "to the necessity occasioned by the requirement of other
provisions of the Constitution, whereby every exercise of 'legislative
powers' involves the concurrence of the two Houses"; or more briefly,
"necessary" here means necessary if an "order, resolution, or vote" is
to have the force of law. Such resolutions have come to be termed "joint
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
particular exercises of power by him. Most of the important legislation
enacted for the prosecution of World War II provided that the powers
granted to the President should come to an end upon adoption of
concurrent resolutions to that effect.[212] Similarly, measures
authorizing the President to reorganize executive agencies have provided
that a Reorganization Plan promulgated by him should be reported by
Congress and should not become effective if one[213] or both[214] Houses
adopted a resolution disapproving it. Also, it was settled as early as
1789 that resolutions of Congress proposing amendments to the
Constitution need not be submitted to the President, the Bill of Rights
having been referred to the States without being laid before President
Washington for his approval--a procedure which the Court ratified in due
course.[215]


Section 8. The Congress shall have Power to lay and collect
Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the
common Defence and general Welfare of the United States; but all Duties,
Imposts and Excises shall be uniform throughout the United States.


The Taxing-Spending Power


KINDS OF TAXES PERMITTED

By the terms of the Constitution, the power of Congress to levy taxes is
subject to but one exception and two qualifications. Articles exported
from any State may not be taxed at all. Direct taxes must be levied by
the rule of apportionment and indirect 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
taxation."[218] Despite these generalizations, the power has been at
times substantially curtailed by judicial decision with respect to the
subject matter of taxation, the manner in which taxes are imposed, and
the objects for which they may be levied.


DECLINE OF THE FORBIDDEN SUBJECT MATTER TEST

In recent years the Supreme Court has restored to Congress the power to
tax most of the subject matter which had previously been withdrawn from
its reach by judicial decision. The holding of Evans _v._ Gore[219] and
Miles _v._ Graham[220] that the inclusion of the salaries received by
federal 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 _v._ Day[222] that the salary of a State officer is immune to
federal income taxation also has been overruled.[223] But the principle
underlying that decision--that Congress may not lay a tax which would
impair the sovereignty of the States--is still recognized as retaining
some vitality.


THE RISE AND FALL OF COLLECTOR _v._ DAY

Collector _v._ Day was decided in 1871 while the country was still in
the throes of reconstruction. As noted by Chief Justice Stone in a
footnote to his opinion in Helvering _v._ Gerhardt,[224] the Court had
not then determined how far the Civil War amendments had broadened the
federal power at the expense of the States; the fact that the taxing
power had recently been used with destructive effect upon notes issued
by State banks[225] suggested the possibility of similar attacks upon
the existence of the States themselves. Two years later 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 application as did McCulloch _v._
Maryland[228] in curbing the power of the States to tax operations or
instrumentalities of the Federal Government. Only once since the turn of
the century has the national taxing power been further narrowed in the
name of Dual Federalism. In 1931 the Court held that a federal excise
tax was inapplicable to the manufacture and sale to a municipal
corporation of equipment for its police force.[229] Justices Stone and
Brandeis dissented from this decision and it is doubtful whether it
would be followed today.


FEDERAL TAXATION OF STATE INTERESTS

Within a decade after the Pollock decision the retreat from Collector
_v._ Day began. In 1903, a succession tax upon a bequest to a
municipality for public purposes was upheld on the ground that the tax
was payable out of the estate before distribution to the legatee.
Looking to form and not to substance, in disregard of the mandate of
Brown _v._ Maryland,[230] a closely divided Court declined to "regard it
as a tax upon the municipality, though it might operate incidentally to
reduce the bequest by the amount of the tax."[231] When South Carolina
embarked upon the business of dispensing alcoholic beverages, its agents
were held to be subject to the national internal revenue tax, the ground
of the holding being that in 1787 such a business was not regarded as
one of the ordinary functions of government.[232] Another decision
marking 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
transportation of merchandise in performance of a contract to sell and
deliver it to a county;[235] on the importation of scientific apparatus
by a State university;[236] on admissions to athletic contests sponsored
by a State institution, the net proceeds of which were used to further
its educational program;[237] and on admissions to recreational
facilities operated on a nonprofit basis by a municipal
corporation.[238] Income derived by independent engineering contractors
from the performance of State functions;[239] the compensation of
trustees appointed to manage a street railway taken over and operated by
a State;[240] profits derived from the sale of State bonds;[241] or from
oil produced by lessees of State lands;[242] have all been held to be
subject to federal taxation despite a possible economic burden on the
State.


IS ANY IMMUNITY LEFT THE STATES?

Although there have been sharp differences of opinion among members of
the Supreme Court in recent cases dealing with the tax immunity of State
functions and instrumentalities, it has been stated that "all agree that
not all of the former immunity is gone."[243] Twice the Court has made
an effort to express its new point of view in a statement of general
principles by which the right to such immunity shall be determined.
However, the failure to muster a majority in concurrence with any single
opinion in the more recent of these cases leaves the question very much
in doubt. In Helvering _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, exemplified by those
cases where the tax laid upon individuals affects the State only as the
burden is passed on to it by the taxpayer, forbids recognition of the
immunity when the burden on the State is so speculative and uncertain
that if allowed it would restrict the federal taxing power without
affording any corresponding tangible protection to the State government;
even though the function be thought important enough to demand immunity
from a tax upon the State itself, it is not necessarily protected from a
tax which well may be substantially or entirely absorbed by private
persons."[245]


CONFLICTING VIEWS ON THE COURT

The second attempt to formulate a general doctrine was made in New York
_v._ United States,[246] where, on review of a judgment affirming the
right of the United States to tax the sale of mineral waters taken from
property owned and operated by the State of New York, the Court was
asked to and did reconsider the right of Congress to tax business
enterprises carried on by the States. Justice Frankfurter, speaking for
himself and Justice Rutledge, made the question of discrimination _vel
non_ against State activities the test of the validity of such a tax.
They found "no restriction upon Congress to include the States in
levying a tax exacted equally from private persons upon the 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 Douglas and Black dissented in an
opinion written by the former on the ground that the decision
disregarded the Tenth Amendment, placed "the sovereign States on the
same plane as private citizens," and made them "pay the Federal
Government for the privilege of exercising powers of sovereignty
guaranteed them by the Constitution."[249] In the most recent case
dealing with State immunity the Court sustained the tax on the second
ground mentioned in Helvering _v._ Gerhardt--that the burden of the tax
was borne by private persons--and did not consider whether the function
was one which the Federal Government might have taxed if the
municipality had borne the burden of the exaction.[250]


THE RULE OF UNIFORMITY

Whether a tax is to be apportioned among the States according to the
census taken pursuant to article I, section 2, or imposed uniformly
throughout the United States depends upon its classification as direct
or indirect.[251] The rule of uniformity for indirect taxes is easy to
obey. It exacts only that the subject matter of a levy be taxed at the
same rate wherever found in the United States; or, as it is sometimes
phrased, the uniformity required is "geographical," not
"intrinsic."[252] The 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 States" in this clause refers only to the
States of the Union, the District of Columbia, and incorporated
territories. Congress is not bound by the rule of uniformity in framing
tax measures for unincorporated territories.[256] Indeed, in Binns _v._
United States,[257] the Court sustained license taxes imposed by
Congress but applicable only in Alaska, where the proceeds, although
paid into the general fund of the Treasury, did not in fact equal the
total cost of maintaining the territorial government.


PURPOSES OF TAXATION


Regulation by Taxation

The discretion of Congress in selecting the objectives of taxation has
also been held at times to be subject to limitations implied from the
nature of the Federal System. Apart from matters which Congress is
authorized to regulate, the national taxing power, it has been said,
"reaches only existing subjects."[258] Congress may tax any activity
actually carried on, regardless of whether it is permitted or prohibited
by the laws of the United States[259] or by those of a State.[260] But
so-called federal "licenses," so far as they relate to 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 concerning the packaging of taxed
articles such as tobacco[262] and oleomargarine,[263] ostensibly
designed to prevent fraud in the collection of the tax; it has also
upheld measures taxing drugs[264] and firearms[265] which prescribed
rigorous restrictions under which such articles could be sold or
transferred, and imposed heavy penalties upon persons dealing with them
in any other way. These regulations were sustained as conducive to the
efficient collection of the tax though they clearly transcended in some
respects this ground of justification.


Extermination by Taxation

A problem of a different order is presented where the tax itself has the
effect of suppressing an activity or where it is coupled with
regulations which clearly have no possible relation to the collection of
the tax. Where a tax is imposed unconditionally, so that no other
purpose appears on the face of the statute, the Court has refused to
inquire into the motives of the lawmakers and has sustained the tax
despite its prohibitive proportions.[266] In the language of a recent
opinion: "It is beyond serious question that a tax does not cease to be
valid merely because it regulates, discourages, or even definitely
deters the activities taxed. * * * The principle applies even 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 regulations set out in the statute, the
validity of the measure is determined by the power of Congress to
regulate the subject matter. If the regulations are within the
competence of Congress, apart from its power to tax, the exaction is
sustained as an appropriate sanction for making them effective;[268]
otherwise it is invalid.[269] During the Prohibition Era, Congress
levied a heavy tax upon liquor dealers who operated in violation of
State law. In United States _v._ Constantine[270] the Court held that
this tax was unenforceable after the repeal of the Eighteenth Amendment,
since the National Government had no power to impose an additional
penalty for infractions of State law.


The Protective Tariff

The earliest examples of taxes levied with a view to promoting desired
economic objectives in addition to raising revenue were, of course,
import duties. The second statute adopted by the first Congress was a
tariff act which recited that "it is necessary for the support of
government, for the discharge of the debts of the United States, and the
encouragement and protection of manufactures, that duties be laid on
goods, wares and merchandise imported."[271] After being debated for
nearly a century and a half, the constitutionality of protective tariffs
was finally settled by the unanimous decision of the Supreme Court in
Hampton and Company _v._ United States,[272] where Chief Justice Taft
wrote: "The second objection to Sec. 315 is that the declared plan of
Congress, 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
legislative exposition of the Constitution when the founders of our
Government and framers of our Constitution were actively participating
in public affairs, long acquiesced in, fixes the construction to be
given its provisions. * * * The enactment and enforcement of a number of
customs revenue laws drawn with a motive of maintaining a system of
protection, since the revenue law of 1789, are matters of history. * * *
Whatever we may think of the wisdom of a protection policy, we can not
hold it unconstitutional. So long as the motive of Congress and the
effect of its legislative action are to secure revenue for the benefit
of the general government, the existence of other motives in the
selection of the subject of taxes cannot invalidate Congressional
action."[273]


SPENDING FOR THE GENERAL WELFARE

The grant of power to "provide * * * for the general welfare" raises a
two-fold question: How may Congress provide for "the general welfare"
and what is "the general welfare" which it is authorized to promote? The
first half of this question was answered by Thomas Jefferson in his
Opinion on the Bank as follows: "* * * the 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 for the general welfare, but only to _lay taxes_ for
that purpose."[274] The clause, in short, is not an independent grant of
power, but a qualification of the taxing power. Although a broader view
has been occasionally asserted,[275] Congress has not acted upon it and
the Courts have had no occasion to adjudicate the point.


Hamilton _v._ Madison

With respect to the meaning of "the general welfare" the pages of The
Federalist itself disclose a sharp divergence of views between its two
principal authors. Hamilton adopted the literal, broad meaning of the
clause;[276] Madison contended that the powers of taxation and
appropriation of the proposed government should be regarded as merely
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 their
beginnings in the administrations of Washington and Jefferson.[280]
Since 1914, federal grants-in-aid,--sums of money apportioned among the
States for particular uses, often conditioned upon the duplication of
the sums by the recipient State, and upon observance of stipulated
restrictions as to its use--have become commonplace.[281]


Triumph of the Hamiltonian Theory

The scope of the national spending power was brought before the Supreme
Court at least five times prior to 1936, but the Court disposed of four
of them without construing the "general welfare" clause. In the Pacific
Railway Cases[282] and Smith _v._ Kansas City Title and Trust
Company,[283] it affirmed the power of Congress to construct internal
improvements, and to charter and purchase the capital stock of federal
land banks, by reference to the powers of the National Government over
commerce, the post roads and fiscal operations, and to its war powers.
Decisions on the merits were withheld in two other cases--Massachusetts
_v._ Mellon and Frothingham _v._ Mellon[284]--on the ground that neither
a State nor an individual citizen is entitled to a remedy in the courts
against an unconstitutional appropriation of national funds. In United
States _v._ Gettysburg Electric Railway Co.,[285] however, the Court had
invoked "the great power of taxation to be exercised for the common
defence and the general welfare,"[286] to sustain the right of the
Federal 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
of them, and Congress consequently has a substantive power to tax and to
appropriate, limited only by the requirement that it shall be exercised
to provide for the general welfare of the United States. Each contention
has had the support of those whose views are entitled to weight. This
court had noticed the question, but has never found it necessary to
decide which is the true construction. Justice Story, in his
Commentaries, espouses the Hamiltonian position. We shall not review the
writings of public men and commentators or discuss the legislative
practice. Study of all these leads us to conclude that the reading
advocated by Justice Story is the correct one. While, therefore, the
power to tax is not unlimited, its confines are set in the clause which
confers it, and not in those of Sec. 8 which bestow and define the
legislative powers of the Congress. It results that the power of
Congress to authorize expenditure of public moneys for public purposes
is not limited by the direct grants of legislative power found in the
Constitution."[288]


The Security Act Cases

Although holding that the spending power is not limited by the specific
grants of power contained in article I, section 8, the Court found,
nevertheless, that it was qualified by the Tenth Amendment, and on this
ground ruled in the Butler case that Congress could not use moneys
raised by taxation to "purchase compliance" with regulations "of matters
of State concern with respect to which Congress has no authority to
interfere."[289] Within little more than a year this decision was
reduced to narrow proportions by Steward Machine Co. _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 Federal Governments; that the credit allowed
for State taxes bore a reasonable relation "to the fiscal need subserved
by the tax in its normal operation,"[291] since State unemployment
compensation payments would relieve the burden for direct relief borne
by the national treasury. The Court reserved judgment as to the validity
of a tax "if it is laid upon the condition that a State may escape its
operation through the adoption of a statute unrelated in subject matter
to activities fairly within the scope of national policy and
power."[292]


Earmarked Funds

The appropriation of the proceeds of a tax to a specific use does not
affect the validity of the exaction, if the general welfare is advanced
and no other constitutional provision is violated. Thus a processing tax
on 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, the proceeds of which were not earmarked in any way,
although intended to provide funds for payments to retired workers, was
upheld under the "general welfare" clause, the Tenth Amendment being
found to be inapplicable.


Conditional Grants-in-Aid

In the Steward Machine Company case, it was a taxpayer who complained of
the invasion of the State sovereignty and the Court put great emphasis
on the fact that the State was a willing partner in the plan of
cooperation embodied in the Social Security Act.[295] A decade later the
right of Congress to impose conditions upon grants-in-aid over the
objection of a State was squarely presented in Oklahoma _v._ United
States Civil Service Commission.[296] The State objected to the
enforcement of a provision of the 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 political activities
as such of State officials, it does have power to fix the terms upon
which its money allotments to State shall be disbursed. * * * The end
sought by Congress through the Hatch Act is better public service by
requiring those who administer funds for national needs to abstain from
active political partisanship. So even though the action taken by
Congress does have effect upon certain activities within the State, it
has never been thought that such effect made the federal act
invalid."[298]


"Debts of the United States"

The power to pay the debts of the United States is broad enough to
include claims of citizens arising on obligations of right and
justice.[299] The Court sustained an act of Congress which set apart for
the use of the Philippine Islands, the revenue from a processing tax on
coconut oil of Philippine production, as being in pursuance of a moral
obligation to protect and promote the welfare of the people of the
Islands.[300] Curiously 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 proper" clause, Chief Justice Marshall
deduced the power to collect a debt from the power to pay its
obligations by the following reasoning: "The government is to pay the
debt of the Union, and must be authorized to use the means which appear
to itself most eligible to effect that object. It has, consequently, a
right to make remittances by bills or otherwise, and to take those
precautions which will render the transaction safe."[302]


Clause 2. _The Congress shall have Power_ * * * To borrow Money on the
credit of the United States.


The Borrowing Power

The original draft of the Constitution reported to the convention by its
Committee of Detail empowered Congress "To borrow money and emit bills
on the credit of the United States."[303] When this section was reached
in the debates, Gouverneur Morris moved to strike out the clause "and
emit bills on the credit of the United States." Madison suggested that
it might be sufficient "to prohibit 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
borrows money "on the credit of the United States" Congress creates a
binding obligation to pay the debt as stipulated and cannot thereafter
vary the terms of its agreement. A law purporting to abrogate a clause
in government bonds calling for payment in gold coin was held to
contravene this clause, although the creditor was denied a remedy in the
absence of a showing of actual damage.[306]


Clause 3. _The Congress shall have power_ * * * To regulate Commerce
with foreign Nations, and among the several States, and with the Indian
Tribes.


Purpose of the Clause

This clause serves a two-fold purpose: it is the direct source of the
most important powers which the National Government exercises in time of
peace: and, except for the due process of law clause of Amendment XIV,
it is the most important limitation imposed by the Constitution on the
exercise of State power. The latter, or restrictive, operation of the
clause 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 were initially laid down from the point of
view of its operation as a curb on State power, rather than of its
operation as a source of national power; and the consequence of this was
that the word "commerce," as designating the thing to be protected
against State interference, came to dominate the clause, while the word
"regulate" remained in the background.


Definition of Terms: Gibbons _v._ Ogden


"COMMERCE"

The etymology of the word, "cum merce (with merchandise)" carries the
primary meaning of traffic--i.e., "to buy and sell goods; to trade"
(Webster's International). This narrow conception was replaced in the
great leading case of Gibbons _v._ Ogden, 9 Wheat. 1 (1824), by a much
broader one, on which interpretation of the clause has been patterned
ever since. The case arose out of a series of acts of the legislature of
New York, passed between the years 1798 and 1811, which conferred upon
Livingston and Fulton the exclusive right to navigate the waters of that
State with steam-propelled vessels. Gibbons challenged the monopoly by
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
selling, or the interchange of commodities, and do not admit that it
comprehends navigation. This would restrict a general term, applicable
to many objects, to one of its significations. Commerce, undoubtedly, is
traffic, but it is something more--it is intercourse."[308] The term,
therefore, included navigation--a conclusion which Marshall supported by
appeal to general understanding, to the prohibition in article I, Sec. 9,
against any preference being given "'* * * by any regulation of commerce
or revenue, to the ports of one State over those of another,'" and to
the admitted and demonstrated power of Congress to impose
embargoes.[309]


"COMMERCE" TODAY

Later in his opinion Marshall qualified the word "intercourse" with the
word "commercial."[310] Today "commerce" in the sense of the
Constitution, and hence "interstate commerce" when it is carried on
across State lines, covers 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 species of commercial negotiation
which, as shown "by the established course of the business," will
involve sooner or later an act of transportation of persons or things,
or the flow of services or power across State lines.[313]

From time to time the Court has said that certain things were not
interstate commerce, such as mining or manufacturing undertaken "with
the intent" that the product shall be transported to other States;[314]
insurance transactions when carried on across State lines;[315]
exhibitions of baseball between professional teams which travel from
State to State;[316] the making 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 commerce.[319] By
another the activities of a Group Health Association which serves only
its own members are held to be "trade" within the protection of the
Sherman Act and hence capable, if extended, of becoming interstate
commerce.[320] By a third the business of insurance when transacted
between an insurer and an insured in different States is interstate
commerce.[321]


THE "NECESSARY AND PROPER" CLAUSE

In the majority of the above cases the commerce clause was involved
solely as a limitation on the powers of the States. But when the clause
is treated as a source of national power it is, of course, read in
association with the 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 recent years practically to connote
both those operations which precede as well as those which follow
commercial intercourse itself, provided such operations are deemed by
the Court to be capable of "affecting" such intercourse.[323]


"AMONG THE SEVERAL STATES"

In Cohens _v._ Virginia, decided in 1821, Marshall had asserted, "for
all commercial purposes we are one nation."[324] In Gibbons _v._ Ogden,
however, he conceded that the phrase commerce "among the several States"
was "not one which would probably have been 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 affect the States generally; but not those which are
completely within a particular State, which do not affect other States,
and with which it is not necessary to interfere, for the purpose of
executing some of the general powers of the government."[325]

This recognition of an "exclusively internal" commerce of a State
("intrastate commerce" today) appears at times to have been regarded as
implying the existence of an area of State power which Congress was not
entitled constitutionally to enter.[326] This 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 executing its general powers," one of which is its power over
foreign and interstate commerce. It is today established doctrine that
"no form of State activity can constitutionally thwart the regulatory
power granted by the commerce clause to Congress."[327]

And while the word "among" serves to demark "the completely internal"
commerce of a State from that which "extends to or affects" other
States, it also serves, as Marshall further pointed out, to emphasize
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 the States must, of
necessity, be commerce [within?] the States. * * * The power of
Congress, then, whatever it may be, must be exercised within the
territorial jurisdiction of the several States."[328]


"REGULATE"

Elucidating this word in his opinion for the Court in Gibbons _v._
Ogden, Chief Justice Marshall said: "We are now arrived at the
inquiry--What is this power? It is the power to regulate; that is, to
prescribe the rule by which commerce is to be governed. This power, like
all others vested in Congress, is complete in itself, may be exercised
to its utmost extent, and acknowledges no limitations, other than are
prescribed in the Constitution. These are expressed in plain 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 power as are found in the Constitution of the United
States. The wisdom and the discretion of Congress, their identity with
the people, and the influence which their constituents possess at
elections, are, in this, as in many other instances, as that, for
example, of declaring war, the sole restraints on which they have
relied, to secure them from its abuse. They are the restraints on which
the people must often rely solely, in all representative
governments."[329]


INTERSTATE VERSUS FOREIGN COMMERCE

There are certain later judicial dicta which urge or suggest that
Congress's power to regulate interstate commerce restrictively is less
than its analogous power over foreign commerce, the argument being that
whereas the latter is a branch of the nation's unlimited power over
foreign relations, the former was conferred upon the National Government
primarily in order to protect freedom of commerce from State
interference. The four dissenting Justices in the Lottery Case (decided
in 1903) endorsed this view in the following words: "It is argued that
the power to regulate commerce among the several States is the same as
the power to regulate commerce with foreign nations, and 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 speaking, to no implied or
reserved power in the States. The laws which would be necessary and
proper in the one case, would not be necessary or proper in the other.
* * * But that does not challenge the legislative power of a sovereign
nation to exclude foreign persons or commodities, or place an embargo,
perhaps not permanent, upon foreign ships or manufactures. * * * The
same view must be taken as to commerce with Indian tribes. There is no
reservation of police powers or any other to a foreign nation or to an
Indian tribe, and the scope of the power is not the same as that over
interstate commerce."[330]

And twelve years later Chief Justice White, speaking for the Court,
expressed the same view, as follows: "In the argument reference is made
to decisions of this court dealing with the subject of the power of
Congress 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 distinction which exists between the two powers and therefore the
cases cited and many more which might be cited announcing the principles
which they uphold have obviously no relation to the question in
hand."[331]

But dicta to the contrary are much more numerous and span a far longer
period of time. Thus Chief Justice Taney wrote in 1847: "The power to
regulate commerce among the several States is granted to Congress in the
same clause, and by the same words, as the power to regulate commerce
with foreign nations, and is coextensive 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 to
regulate commerce, whether with foreign nations or among the several
States comprises the power to restrain or prohibit it at all times for
the welfare of the public, provided only the specific limitations
imposed upon Congress's powers, as by the due process clause of the
Fifth Amendment, are not transgressed.[334]

Nor does the power to regulate commerce stop with, nor in fact is it
most commonly exercised in, measures designed to outlaw some branch of
commerce. In the words of the Court: It is the power to provide by
appropriate legislation for its "protection and advancement";[335] to
adopt measures "to promote its growth and insure its safety";[336] "to
foster, 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 State legislative policy, like the monopoly involved in
Gibbons _v._ Ogden; or from both combined. In the second place, it
extends--as does also the power to restrain commerce--to the instruments
and agents by which commerce is carried on; nor are such instruments and
agents confined to those which were known or in use when the
Constitution was adopted.[338]


INSTRUMENTS OF COMMERCE

The applicability of Congress's power to the agents and instruments of
commerce is implied in Marshall's opinion in Gibbons _v._ Ogden,[339]
where the waters of the State of New York in their quality as highways
of interstate and foreign transportation are held to be governed by the
overruling power of Congress. Likewise, the same opinion recognizes that
in "the progress of things," new and other instruments of commerce will
make their appearance. When the Licensing Act of 1793 was passed, the
only craft to which it could apply were sailing vessels, but it and the
power by which it was enacted were, Marshall asserted, indifferent to
the "principle" by which vessels were moved. Its provisions therefore
reached steam vessels as well. A little over half a century later the
principle embodied in this 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 demands of increasing population and wealth. They were intended
for the government of the business to which they relate, at all times
and under all circumstances. As they were intrusted to the general
government for the good of the nation, it is not only the right, but the
duty, of Congress to see to it that intercourse among the States and the
transmission of intelligence are not obstructed or unnecessarily
encumbered by State legislation."[341] The Radio Act of 1927 whereby
"all forms of interstate and foreign radio transmissions within the
United States, its Territories and possessions" were brought under
national control, affords another illustration. Thanks to the foregoing
doctrine the measure met no serious constitutional challenge either on
the floors of Congress or in the Courts.[342]


Congressional Regulation of Waterways


NAVIGATION

In the case of Pennsylvania _v._ Wheeling & Belmont Bridge Co.,[343]
decided in 1852, the Court, on the application of the complaining State,
acting as representative of the interests of its citizens, granted an
injunction requiring that a bridge, erected over the Ohio under a
charter from the State of Virginia, either be altered so as to admit of
free navigation of the river, or else be entirely abated. The decision
was justified by the Court on the basis both of the commerce clause and
of a compact between Virginia and Kentucky, whereby both these States
had agreed to keep the 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 legislation; and, although it
still may be an obstruction in fact, [it] is not so in the contemplation
of law. * * * That body [Congress] having in the exercise of this power,
regulated the navigation consistent with its preservation and
continuation, the authority to maintain it would seem to be complete.
That authority combines the concurrent powers of both governments, State
and federal, which, if not sufficient, certainly none can be found in
our system of government."[345] In short, it is Congress and not the
Court which is authorized by the Constitution to regulate commerce.

The law and doctrine of the earlier cases with respect to the fostering
and protection of navigation are well summed up in the following
frequently cited passage from the Court's opinion in Gilman _v._
Philadelphia,[346] decided in 1866. "Commerce includes navigation. The
power to regulate commerce comprehends the control for that purpose, and
to the extent necessary, of all 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; to remove such
obstructions when they exist; and to provide, by such sanctions as they
may deem proper, against the occurrence of the evil and for the
punishment of offenders. For these purposes, Congress possesses all the
powers which existed in the States before the adoption of the national
Constitution, and which have always existed in the Parliament in
England."[347]

Thus Congress was within its powers in vesting the Secretary of War with
power to determine whether a structure of any nature in or over a
navigable stream is an obstruction to navigation and to order its
abatement if he so finds.[348] Nor is the United States required 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 formerly held that lands adjoining
nonnavigable streams were not subject to the above mentioned
servitude,[350] this rule has been impaired by recent decisions;[351]
and at any rate it would not apply as to a stream which had been
rendered navigable by improvements.[352]

In exercising its power to foster and protect navigation Congress
legislates primarily on things external to the act of navigation. But
that act itself and the instruments by which it is accomplished are also
subject to Congress's power if and when they enter into or form a part
of "commerce among the several States." When does this happen? Words
quoted above from the Court's opinion in the Gilman case answered this
question to some extent; but the decisive answer to it was returned five
years later in the case of The "Daniel Ball."[353] Here the question at
issue was whether an act of Congress, passed in 1838 and amended in
1852, which required that steam vessels engaged in transporting
passengers or merchandise upon the "bays, lakes, rivers, or other
navigable waters of the United States," applied to the case of a vessel
which navigated only the waters of the Grand River, a stream which lies
entirely in the State of Michigan. Argued counsel for the vessel: "The
navigable rivers of the United States pass through States, they form
their boundary lines, they are not in any one State, nor the exclusive
property of any one, but are common to all. To make waters navigable
waters of the United States, some other incident must attach to them
besides the territorial and the capability for public use. This term
contrasts with _domestic_ waters of the United States, and implies, not
simply 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 article of trade from one State to another, commerce in that
commodity between the States has commenced."[355] Turning then to
counsel's _reductio ad absurdum_, the Court added: "We answer that the
present case relates to transportation on the navigable waters of the
United States, and we are not called upon to express an opinion upon the
power of Congress over interstate commerce when carried on by land
transportation. And we answer further, that we are unable to draw any
clear and distinct line between the authority of Congress to regulate an
agency employed in commerce between the States, when the agency extends
through two or more States, and when it is confined in its action
entirely within the limits of a single State. If its authority does not
extend to an agency in such commerce, when that agency is confined
within the limits of a State, its entire authority over interstate
commerce may be defeated. Several agencies combining, each taking up the
commodity transported at the boundary line at one end of a State, and
leaving it at the boundary line at the other end, the Federal
jurisdiction would be entirely ousted, and the constitutional provision
would become a dead letter."[356] In short, it was admitted
inferentially, that the principle of the decision would apply to land
transportation; but the actual demonstration of the fact still awaited
some years.[357] See _infra_.


HYDROELECTRIC POWER

As a consequence, in part, of its power to forbid or remove obstructions
to navigation in the navigable waters of the United States, Congress has
acquired the right to develop hydroelectric power, and the ancillary
right to sell it to all takers. By a long-standing doctrine of
Constitutional Law the States possess dominion over the beds of all
navigable streams within their borders,[358] but on account of the
servitude which Congress's power to regulate 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
of the navigability of a stream, Congress was entitled, as a part of a
general plan, to authorize the lease or sale of such excess water power
as might result from the conservation of the flow of the stream. "If the
primary purpose is legitimate," it said, "we can see no sound objection
to leasing any excess of power over the needs of the government. The
practice is not unusual in respect to similar public works constructed
by State governments."[361]


Congress's Jurisdiction Over Navigable Streams Today

Since the Chandler-Dunbar case the Court has come, in effect, to hold
that it will sustain any act of Congress which purports to be for the
improvement of navigation whatever other purposes it may also embody;
nor does the stream involved have to be one which is "navigable in its
natural state." Such, at least, seems to be the algebraic sum of its
holdings in Arizona _v._ California,[362] decided in 1931, and in the
United States _v._ Appalachian Electric Power Co.,[363] decided in 1940.
In the former the Court, speaking through Justice Brandeis, said that it
was not free to inquire into the motives "which induced members of
Congress to enact the Boulder Canyon Project Act," adding: "As the river
is navigable and the means which the Act provides are not unrelated 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 not barred from that
classification merely because artificial aids must make the highway
suitable for use before commercial navigation may be undertaken,"
provided there must be a "balance between cost and need at a time when
the improvement would be useful. * * * Nor is it necessary that the
improvements should be actually completed or even authorized. The power
of Congress over commerce is not to be hampered because of the necessity
for reasonable improvements to make an interstate waterway available for
traffic. * * * Nor is it necessary for navigability that the use should
be continuous. * * * Even absence of use over long periods of years,
because of changed conditions, * * * does not affect the navigability of
rivers in the constitutional sense."[365]


Purposes for Which Power May be Exercised

Furthermore, the Court defined the purposes for which Congress may
regulate navigation in the broadest terms, as follows: "It cannot
properly be said that the constitutional power of the United States
over its waters is limited to control for navigation. * * * That
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 it by virtue of
Congress's power over navigation alone that the National Government may
develop super-power. Its war powers and power of expenditure in
furtherance of the common defense and the general welfare supplement its
powers over commerce in this respect.[368]


Congressional Regulation of Land Transportation


EARLY ACTS; FEDERAL PROVISION FOR HIGHWAYS

The acquisition and settlement of California stimulated Congress some
years before the Civil War to authorize surveys of possible routes for
railway lines to the Pacific; but it was not until 1862, in the midst of
war, with its menace of a general dissolution of the Union, that more
decisive action was taken. That year Congress voted aid in the
construction of a line from Missouri River to the 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 spending, independently of the
commerce clause, as well as from its war and postal powers, which were
also invoked by the Court in this connection); _second_, that it may
charter private corporations for the purpose of doing the same thing;
_third_, that it may vest such corporations with the power of eminent
domain in the States; and _fourth_, that it may exempt their franchises
from State taxation.[370]


BEGINNINGS OF FEDERAL RAILWAY REGULATION

Congress began regulating the railroads of the country in a more
positive sense in 1866. By the so-called Garfield Act of that year
"every railroad company in the United States, whose road is operated by
steam," was authorized by Congress "* * * to connect with roads of
other States so as to form continuous lines for the transportation of
passengers, freight, 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, be free to all who will submit
to the conditions imposed by Congress, and that corporations organized
under the laws of one State for constructing and operating telegraph
lines shall not be excluded by another from prosecuting their business
within its jurisdiction, if they accept the terms proposed by the
National Government for this national privilege."[372]

Another act of the same period provided that "no railroad company within
the United States whose road forms any part of a line of road over which
cattle, sheep, swine, or other animals are conveyed from one State to
another, or the 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 longer period than twenty-eight consecutive
hours, without unloading the same for rest, water, and feeding, for a
period of at least five consecutive hours, unless prevented from so
unloading by storm or other accidental causes."[373]


REGULATION OF RAILROAD RATES: THE INTERSTATE COMMERCE COMMISSION

On account of the large element of "fixed charges" which enters into the
setting of rates by railway companies, competition between lines for new
business was from the first very sharp, and resulted in many evils
which, in the early 70's, led in the Middle West to the enactment by the
State legislatures of the so-called "Granger Laws"; and in the famous
"Granger Cases," headed by Munn _v._ Illinois,[374] the Court at first
sustained this legislation, in relation to both the commerce clause and
the 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 of the commerce clause was determinative. In the
case of Wabash, St. Louis and Pacific R. Co. _v._ Illinois,[375] decided
in 1886, it was ruled that a State may not regulate charges for the
carriage even within its own boundaries of goods brought from without
the State or destined to points outside it; that in this respect
Congress's power over interstate commerce was exclusive. The following
year, Congress, responding to a widespread public demand, passed the
original Interstate Commerce Act.[376]

By this measure a commission of five was created with authority to pass
upon the "reasonableness" of all charges by railroads for the
transportation of goods or persons in interstate commerce and to order
the discontinuance of all such charges as it found to be "unreasonable,"
or otherwise violative of the 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 States in order to
secure process for the execution of its orders. Later decisions of the
Court, however, including one in which the act was construed not to give
the Commission power to set reasonable maximum rates in substitution for
those found by it to be unreasonable, disappointed earlier
expectations.[378]

The history of the Commission as an effective instrument of government
dates from the Hepburn Act of 1906[379] which was followed four years
later by the Mann-Elkins Act.[380] By the former the Commission was
explicitly endowed with the 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 complaint; while any increase
of rates by a carrier was made subject to suspension by the Commission
until its approval could be obtained. At the same time, the Commission's
jurisdiction was extended to telegraphs, telephones and cables.[381]


THE INTERSTATE COMMERCE COMMISSION TODAY

The powers of the Commission, which has been gradually increased to a
body of eleven, are today largely defined in the Transportation Act of
February 28, 1920. By that act they were extended not only to all
"railroads," comprehensively defined, but also to the following
additional categories of "'common carriers' * * * all pipeline
companies; telegraph, telephone, and cable companies operating by wire
or wireless [_See_ note 3 above][Transcriber's Note: Refers to Article
I, Footnote [381].]; express companies; sleeping-car companies; and all
persons, natural 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 other things, to the transportation needs of
the country and the necessity (under honest, efficient and economical
management of existing transportation facilities) of enlarging such
facilities in order to provide the people of the United States with
adequate transportation."[382] Railway rate control itself, which was
originally entered upon by the National Government exclusively from the
point of view of restraint, has thus been assimilated to the idea of
"fostering and promoting" transportation.

Two types of constitutional questions have presented themselves under
the legislation just passed in review: 1. Those arising out of the
safeguards which the Bill of Rights throws about property rights; 2.
Those arising out of the intermingling of the interstate and intrastate
operations of the same carriers, and the resulting tangency of State
with national power. Only the latter are considered at this point.


THE SHREVEPORT CASE

Section 1 of the act of 1887 contains the proviso "that the provisions
of this act shall not apply to 'transportation' wholly within the
State." Section 3 of the act prohibits "any common carrier subject to
the provisions" of the act from giving "any unreasonable preference or
advantage" to any person, firm, or locality. In the Shreveport
Case,[383] decided in 1914, the Commission, reading Sec. 3 independently
of Sec. 1, had ordered several Texas lines to increase certain of their
rates between points in Texas till they should approximate rates already
approved by the Commission to adjoining points in Louisiana. The latter
rates, being interstate, were admittedly 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 one involves the control of the other, it is Congress, and not
the State, that is entitled to prescribe the final and dominant rule,
for otherwise Congress would be denied the exercise of its
constitutional authority and the State, and not the Nation, would be
supreme in the national field."[384] This, the Court continued, "is not
to say that Congress possesses the authority to regulate the internal
commerce of a State as such, but that it does possess the power to
foster and protect interstate commerce, and to take all measures
necessary or appropriate to that end, although intrastate transactions
of interstate carriers may thereby be controlled."[385]


THE ACT OF 1920 AND STATE RAILWAY RATE REGULATION

The power of the Commission under Sec. 3 of the act of 1887, as
interpreted in the Shreveport Case, was greatly enlarged by Sec. 416 of
the act of 1920, which authorizes the Commission to remove "any undue,
unreasonable, or unjust discrimination against interstate or foreign
commerce." Thus, commerce 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 found to be unduly low, in
comparison with rates which the Commission had established for
interstate travel, and so tending to thwart, in deference to a merely
local interest, the general purpose of the act to maintain an efficient
transport service for the benefit of the country at large.[387]


REGULATION OF OTHER AGENTS OF CARRIAGE AND COMMUNICATION

In the Pipe Line Cases, decided in 1914,[388] the Court affirmed the
power of Congress to regulate the transportation of oil and gas in pipe
lines from one State to another and held that this power applies to such
transportation even though the oil (or gas) in question was the property
of the owner of the lines.[389] Thirteen years later, in 1927, the Court
ruled that an order by a State commission fixing rates on electric
current generated within the State and sold to a distributor in another
State was invalid as imposing a burden on interstate commerce, thus
holding impliedly that Congress' power to regulate the transmission of
electric current from one State to another carried with it the 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
provisions of the statute applied in this case are unconstitutional on
their face is without merit. The sale of natural gas originating in the
State and its transportation and delivery to distributors in any other
State constitutes interstate commerce, which is subject to regulation by
Congress. * * * It is no objection to the exercise of the power of
Congress that it is attended by the same incidents which attend the
exercise of the police power of a State. The authority of Congress to
regulate the prices of commodities in interstate commerce is at least as
great under the Fifth Amendment as is that of the States under the
Fourteenth to regulate the prices of commodities in intrastate
commerce."[394]

Other acts regulative of interstate commerce and communication which
belong to this period are the Federal Communications Act of 1934, which
regulates, through the Federal Communications Commission,[395]
"interstate and foreign communication by wire and radio"; the Federal
Motor 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,
called "the Civil Aeronautics Authority" (functioning through the Civil
Aeronautics Administrator and the Civil Aeronautics Board) all phases of
airborne commerce, foreign and interstate.[397] None of these measures
have provoked challenge to the power of Congress to enact them.


ACTS OF CONGRESS PROTECTIVE OF LABOR ENGAGED IN INTERSTATE
TRANSPORTATION

In the course of the years 1903 to 1908 Congress enacted a series of
such measures which were notable both on account of their immediate
purpose and as marking the entry of the National Government into the
field of labor legislation. The Safety Appliance Act of 1893,[398] which
applied only to cars and locomotives engaged in moving interstate
traffic, was amended in 1903 to embrace "all trains, locomotives,
tenders, cars," etc., "used on any 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 regulate
interstate commerce is plenary and competently may be exerted to secure
the safety of the persons and property transported therein and of those
who are employed in such transportation, no matter what may be the
source of the dangers which threaten it. That is to say, it is no
objection to such an exertion of this power that the dangers intended to
be avoided arise, in whole or in part, out of matters connected with
intrastate commerce."[401]

Four years later the Hours of Service Act of 1907[402] was passed,
requiring, as a safety measure, that carriers engaged in the
transportation of passengers or property by railroad in interstate or
foreign commerce should not work their employees for longer periods than
those prescribed by the Act. In sustaining this legislation the Court,
speaking through Justice Hughes, said: "The fundamental question here is
whether a restriction upon the hours of labor of employes 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 suitably to
provide for the safety of the employes and travelers, Congress was not
limited to the enactment of laws relating to mechanical appliances, but
it was also competent to consider, and to endeavor to reduce, the
dangers incident to the strain of excessive hours of duty on the part of
engineers, conductors, train dispatchers, telegraphers, and other
persons embraced within the class defined by the act."[403]

But by far the most notable of these safety measures were the Federal
Employers Liability Acts of 1906 and 1908,[404] the second of which
merely reenacted the first with certain "unconstitutional" features
eliminated. What the amended act does, in short, is to modify, in the
case of injuries incurred by the employees of interstate carriers while
engaged in interstate commerce, the defenses that had hitherto been
available to the carriers at common law. The principal argument against
the acts was that the commerce clause afforded no basis for an attempt
to regulate the relation of master and servant, which had heretofore in
all cases fallen to the reserved powers of the States; that indeed the
rules of common law modified or abrogated by the act existed solely
under State authority, and had always been enforced, in the main, in the
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
interrupted; if the agents or instruments are not of the right kind or
quality, commerce in consequence becomes slow or costly or unsafe or
otherwise inefficient; and if the conditions under which the agents or
instruments do the work of commerce are wrong or disadvantageous, those
bad conditions may and often will prevent or interrupt the act of
commerce or make it less expeditious, less reliable, less economical and
less secure. Therefore, Congress may legislate about the agents and
instruments of interstate commerce, and about the conditions under
which those agents and instruments perform the work of interstate
commerce, whenever such legislation bears, or in the exercise of a fair
legislative discretion can be deemed to bear, upon the reliability or
promptness or economy or security or utility of the interstate commerce
act."[406]


The Adair Case

But while the idea expressed here that the human agents of commerce, in
the sense of transportation, are instrumentalities of it, and so, in
that capacity, within the protective power of Congress, signalized the
entrance of Congress into the field of labor legislation, the Court was
not at the time prepared to give the idea any considerable scope.
Pertinent in this connection is the case of Adair _v._ United
States,[407] which was decided between the two Employers' Liability
Cases. Here was involved the validity of Sec. 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's membership in a labor organization
and the carrying on of interstate commerce. Twenty-two years later,
however, in 1930, the Court conceded that the connection between
interstate commerce and union membership was a real and substantial one,
and on that ground sustained the power of Congress in the Railway Labor
Act of 1926[409] to prevent employers from interfering with the right of
employees to select freely their own collective bargaining
representatives.[410]


The Railroad Retirement Act

Still pursuing the idea of protecting commerce and the labor engaged in
it concurrently, Congress, by the Railroad Retirement Act of June 27,
1934,[411] ordered the compulsory retirement of superannuated employees
of interstate carriers, and provided that they be paid pensions out of a
fund comprising compulsory contributions from the carriers and their
present and future employees. In Railroad Retirement Board _v._ Alton
R.R. Company,[412] however, a closely divided Court held this
legislation to be in excess of Congress's power to regulate commerce and
contrary to the due process clause of Amendment V. Said Justice Roberts
for the majority: "We feel bound to hold that a pension plan thus
imposed is in no proper sense a regulation of the activity of interstate
transportation. It is an attempt for social 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 view cannot be dismissed as arbitrary or
capricious. It is a reasoned conviction based upon abundant experience.
The expression of that conviction in law is regulation. When expressed
in the government of interstate carriers, with respect to their
employees likewise engaged in interstate commerce, it is a regulation of
that commerce. As such, so far as the subject matter is concerned, the
commerce clause should be held applicable."[414] Under subsequent
legislation, an excise is levied on interstate carriers and their
employees, while by separate but parallel legislation a fund is created
in the Treasury out of which pensions are paid along the lines of the
original plan. The constitutionality of this scheme appears to be taken
for granted in Railroad Retirement Board _v._ Duquesne Warehouse
Company.[415]


BILLS OF LADING; THE FERGER CASE

Some years earlier the Court had had occasion in United States _v._
Ferger,[416] decided in 1919, to reiterate the rule laid down in the
Southern Railway Case, that Congress's protective power over interstate
commerce reaches all kinds of obstructions whatever the source of their
origin. Ferger and associates had been indicted under a federal statute
for issuing a false bill of lading, to cover a fictitious shipment in
interstate commerce. Their defense was that, since there could be no
commerce in a fraudulent bill of lading, therefore Congress's power
could not reach their alleged offense, a contention which Chief Justice
White, speaking for the Court, answered thus: "But this mistakenly
assumes that the 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. * * * That as instrumentalities of
interstate commerce, bills of lading are the efficient means of credit
resorted to for the purpose of securing and fructifying the flow of a
vast volume of interstate commerce upon which the commercial intercourse
of the country, both domestic and foreign, largely depends, is a matter
of common knowledge as to the course of business of which we may take
judicial notice. Indeed, that such bills of lading and the faith and
credit given to their genuineness and the value they represent are the
producing and sustaining causes of the enormous number of transactions
in domestic and foreign exchange, is also so certain and well known that
we may notice it without proof."[417]


Congressional Regulation of Commerce as Traffic


THE SHERMAN ACT; THE "SUGAR TRUST CASE"

Congress's chief effort to regulate commerce in the primary sense of
"traffic" is embodied in the Sherman Antitrust Act of 1890, the opening
section of which declares "every contract, combination in the form of
trust or otherwise," or "conspiracy in restraint of trade and commerce
among the several States, or with foreign nations" to be "illegal,"
while the second section makes it a misdemeanor for anybody to
"monopolize or attempt to monopolize any part of such commerce."[418]
The act was passed to curb the growing tendency to form industrial
combinations and the first case to reach the Court under it was the
famous "Sugar Trust Case," United States _v._ E.C. Knight Co.[419] Here
the Government asked for 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 Fuller's opinion
for the Court, sets forth the conception of the Federal System that
controlled the decision: "It is vital that the independence of the
commercial power and of the police power, and the delimitation between
them, however sometimes perplexing, should always be recognized and
observed, for while the one furnishes the strongest bond of union, the
other is essential to the preservation of the autonomy of the States as
required by our dual form of government; and acknowledged evils, however
grave and urgent they may appear to be, had better be borne, than risk
be run, in the effort to suppress them, of more serious consequences by
resort to expedients of even doubtful constitutionality."[420]

In short, what was needed, the Court felt, was a hard and fast line
between the two spheres of power, and in the following series of
propositions it endeavored to lay down such a line: (1) production is
always local, and under the exclusive domain of the States; (2) commerce
among the States does not commence until goods "commence their final
movement from their State of origin to that of their destination"; (3)
the sale of a product is merely an incident of its production and while
capable of "bringing the operation of commerce into play," affects it
only incidentally; (4) such restraint as would reach commerce, as above
defined, in consequence of combinations to control production "in all
its forms," would be "indirect, 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 Philadelphia
for consumption, and undoubtedly for resale by the first purchasers
throughout Pennsylvania and other States, and refined sugar was also
forwarded by the companies to other States for sale. Nevertheless it
does not follow that an attempt to monopolize, or the actual monopoly
of, the manufacture was an attempt, whether executory or consummated, to
monopolize commerce, even though, in order to dispose of the product,
the instrumentality of commerce was necessarily invoked. There was
nothing in the proofs to indicate any intention to put a restraint upon
trade or commerce, and the fact, as we have seen that trade or commerce
might be indirectly affected was not enough to entitle complainants to a
decree."[422]


THE SHERMAN ACT REVISED

Four years later occurred the case of Addyston Pipe and Steel Co. _v._
United States,[423] in which the Antitrust Act was successfully applied
as against an industrial combination for the first time. The agreements
in the 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 products of the contracting firms. The holding, however, did not
question the doctrine of the earlier case, which in fact continued
substantially undisturbed until 1905, when Swift and Co. _v._ United
States,[424] was decided.


THE "CURRENT OF COMMERCE" CONCEPT: THE SWIFT CASE

Defendants in the Swift case were some thirty firms engaged in Chicago
and other cities in the business of buying livestock in their
stockyards, in converting it at their packing houses into fresh meat,
and in the sale and shipment of such fresh meat to purchasers in other
States. The charge against them was that 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
complained of were not acts of interstate commerce and so did not fall
within a valid reading of the Sherman Act. The Court, however, sustained
the Government on the ground that the "scheme as a whole" came within
the act, and that the local activities alleged were simply part and
parcel of this general scheme.[425]

Referring to the purchases of livestock at the stockyards, the Court,
speaking by Justice Holmes, said: "Commerce among the States is not a
technical legal conception, but a practical one, drawn from the course
of business. When cattle are sent for sale from a place in one State,
with the expectation that they will end their transit, after purchase,
in another, and when in effect they do so, with only the interruption
necessary to find a purchaser at the stockyards, and when this is a
typical, constantly recurring course, the current thus existing is a
current of commerce among the States, and the purchase of the cattle is
a part and incident of such commerce."[426] Likewise the sales alleged
of fresh meat at the slaughtering places fell within the 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 interstate
_transportation_, only "indirectly." Lastly, the Court added these
significant words: "But we do not mean to imply that the rule which
marks the point at which State taxation or regulation becomes
permissible necessarily is beyond the scope of interference by Congress
in cases where such interference is deemed necessary for the protection
of commerce among the States."[428] That is to say, the line that
confines State power from one side does not always confine national
power from the other. For even though the line accurately divides the
subject matter of the complementary spheres, still national power is
always entitled to take on such additional extension as is requisite to
guarantee its effective exercise, and is furthermore supreme.


THE DANBURY HATTERS CASE

In this respect, the Swift Case only states what the Shreveport Case was
later to declare more explicitly; and the same may be said of an ensuing
series of cases in which combinations of employees engaged in such
intrastate activities as manufacturing, mining, building construction,
and the distribution of poultry were subjected to the penalties of the
Sherman Act because of the effect or intended effect of their activities
on interstate commerce.[429]


STOCKYARDS AND GRAIN FUTURES ACTS

In 1921 Congress passed the Packers and Stockyards Act[430] whereby the
business of commission men and livestock dealers in the chief stockyards
of the country was brought under national supervision; and the year
following it passed the Grain Futures Act[431] whereby exchanges dealing
in grain futures were subjected to control. The decisions of the Court
sustaining these measures both built directly upon the Swift Case.

In Stafford _v._ Wallace,[432] which involved the former act, Chief
Justice Taft, speaking for the Court, said: "The object to be secured by
the act is the free and unburdened flow of livestock from the ranges and
farms of the West and Southwest through the great stockyards and
slaughtering 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."[433] The stockyards, therefore, were "not a place of rest
or final destination." They were "but a throat through which the current
flows," and the sales there were not merely local transactions. "They do
not stop the flow;--but, on the contrary" are "indispensable to its
continuity."[434]

In Chicago Board of Trade _v._ Olsen,[435] involving the Grain Futures
Act, the same course of reasoning was repeated. Speaking of the Swift
Case, Chief Justice Taft remarked: "That case was a milestone in the
interpretation of the commerce clause of the Constitution. It
recognized the great changes and development in the business of this
vast country and drew again the dividing line between interstate and
intrastate commerce where the Constitution intended it to be. It refused
to permit local incidents of a great interstate movement, which taken
alone were intrastate, to characterize the movement as such."[436] Of
special significance, however, is the part of the opinion which was
devoted to showing the relation between future sales and cash sales, and
hence the effect of the former upon the interstate grain trade. The
test, said the Chief Justice, was furnished by the question of 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 such a matter unless the
relation of the subject to interstate commerce and its effect upon it
are clearly nonexistent."[438] And it was in reliance on the doctrine of
these cases that Congress first set to work to combat the Depression in
1933 and the years immediately following. But in fact, much of its
legislation at this time marked a wide advance upon the measures just
passed in review. They did not stop with regulating traffic among the
States and the instrumentalities thereof; they also essayed to govern
production and industrial relations in the field of production.
Confronted with this revolutionary claim to power on Congress' part, the
Court again deemed itself called upon to define a limit to the commerce
power that would save to the States their historical sphere, and
especially their customary monopoly of legislative power in relation to
industry and labor management.


THE SECURITIES AND EXCHANGE COMMISSION

Not all antidepression legislation, however, was of this revolutionary
type. The Securities Exchange Act of 1934[439] and the Public Utility
Company Act ("Wheeler-Rayburn Act") of 1935[440] were not. The former
creates the Securities and Exchange Commission, and authorizes it to lay
down regulations designed to keep dealing in securities honest and
above-board and closes the channels of interstate 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 section 11, the so-called "death sentence" clause, the
same act closes after a certain date the channels of interstate
communication to certain types of public utility companies whose
operations, Congress found, were calculated chiefly to exploit the
investing and consuming public. All these provisions have been
sustained,[441] Gibbons _v._ Ogden, furnishing the Court its principal
reliance.[442]


Congressional Regulation of Production and Industrial Relations


ANTIDEPRESSION LEGISLATION

In the following words of Chief Justice Hughes, spoken in a case which
was decided a few days after President Franklin D. Roosevelt's first
inauguration, the problem which confronted the new Administration was
clearly set forth: "When industry is grievously hurt, when producing
concerns fail, when unemployment mounts and communities dependent upon
profitable production are prostrated, the wells of commerce go
dry."[443]


THE NATIONAL INDUSTRIAL RECOVERY ACT

The initial effort of Congress to deal with this situation was embodied
in the National Industrial Recovery Act of June 16, 1933.[444] The
opening section of the act asserted the existence of "a national
emergency productive of widespread unemployment and disorganization of
industry which" burdened "interstate and foreign commerce," 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 forthcoming. Among other
things such codes, of which eventually more than 700 were promulgated,
were required to lay down rules of fair dealing with customers and to
furnish labor certain guarantees respecting hours, wages and collective
bargaining. For the time being business and industry were to be
cartelized on a national scale.


THE SCHECHTER CASE

In the case of Schechter Corp. _v._ United States,[445] one of these
codes, the Live Poultry Code, was pronounced unconstitutional. Although
it was conceded that practically all poultry handled by the Schechters
came from outside the State, and hence via interstate commerce, the
Court held, nevertheless, that once the chickens came to rest in the
Schechters' wholesale 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 a fundamental one, essential to the
maintenance of our constitutional system. Otherwise, * * *, there would
be virtually no limit to the federal power and for all practical
purposes we should have a completely centralized government."[446] In
short, the case was governed by the ideology of the Sugar Trust Case,
which was not mentioned in the Court's opinion.[447]


THE AGRICULTURAL ADJUSTMENT ACT

Congress' second attempt to combat the Depression comprised the
Agricultural Adjustment Act of 1933.[448] As is pointed out elsewhere
the measure was set aside as an attempt to regulate production, a
subject which was held to be "prohibited" to the United States by
Amendment X.[449] _See_ pp. 917-918.


THE BITUMINOUS COAL CONSERVATION ACT

The third measure to be disallowed was the Guffey-Snyder Bituminous Coal
Conservation Act of 1935.[450] The statute created machinery for the
regulation of the price of soft coal, both that sold in interstate
commerce and that sold "locally," and other machinery for the regulation
of hours of labor and wages in the mines. The clauses of the act dealing
with these two different matters were declared by the act itself to be
separable so that the invalidity of the one set would not affect the
validity of the other; but this strategy was ineffectual. A majority of
the Court, speaking by Justice Sutherland held that the act constituted
one connected scheme of regulation which, inasmuch as it invaded the
reserved powers of the States over conditions of employment in
productive industry, 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 legislative control. The relation of
employer and employee is a local relation. At common law, it is one of
the domestic relations. The wages are paid for the doing of local work.
Working conditions are obviously local conditions. The employees are not
engaged in or about commerce, but exclusively in producing a commodity.
And the controversies and evils, which it is the object of the act to
regulate and minimize, are local controversies and evils affecting local
work undertaken to accomplish that local result. Such effect as they may
have upon commerce, however extensive it may be, is secondary and
indirect. An increase in the greatness of the effect adds to its
importance. It does not alter its character."[452] We again see the
influence of the ideology of the Sugar Trust Case.[453]


THE NATIONAL LABOR RELATIONS ACT

The case in which the Court reduced the distinction between "direct" and
"indirect" effects to the vanishing point, and thereby put Congress in
the way of governing productive industry and labor relations in such
industry was National Labor Relations Board _v._ Jones and Laughlin
Steel Corp.,[454] decided April 12, 1937. Here the statute involved was
the National Labor Relations Act of July 5, 1935,[455] which forbids
"any unfair labor practice affecting interstate commerce" and lists
among these "the denial by employers of the right of employees to
organize and the refusal by employers to accept the procedure of
collective bargaining." Ignoring recent holdings, government counsel
appealed to the "current of commerce" concept of the Swift Case. The
scope of respondent's activities, they pointed out, was immense. Besides
its great steel-producing plants, it owned and operated mines,
steamships, and terminal railways scattered through several States, 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 will it do
to say that such effect is "indirect." Considering defendant's
"far-flung activities," the effect of strife between it and its
employees "* * * would be immediate and [it] might be catastrophic. We
are asked to shut our eyes to the plainest facts of our national life
and to deal with the question of direct and indirect effects in an
intellectual vacuum. * * * When industries organize themselves on a
national scale, making their relation to interstate commerce the
dominant factor in their activities, how can it be maintained that their
industrial labor relations constitute a forbidden field into which
Congress may not enter when it is necessary to protect interstate
commerce from the paralyzing consequences of industrial war? We have
often said that interstate commerce itself is a practical conception. It
is equally true that interferences with that commerce must be appraised
by a judgment that does not ignore actual experience."[456]

While the act was thus held to be within the constitutional powers of
Congress in relation to a productive concern, the interruption of whose
business by strike "might be catastrophic," the decision 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" is not a material consideration.[458]
Moreover, the doctrine of the Jones-Laughlin Case applies equally to
"natural" products, to coal mined, to stone quarried, to fruit and
vegetables grown.[459]


THE FAIR LABOR STANDARDS ACT; THE DARBY CASE

In 1938 Congress enacted the Fair Labor Standards Act.[460] The measure
prohibits not only the shipment in interstate commerce of goods
manufactured by employees whose wages are less than the prescribed
minimum or whose weekly hours of labor are greater than the prescribed
maximum, but also the employment of workmen in the production of goods
for such commerce at other than the prescribed wages and hours.
Interstate commerce is defined by the act to mean "trade, commerce,
transportation, transmission, or communication among the several States
or from any State to any place outside thereof." It was further provided
that "for the purposes of this act an employee shall be deemed to have
been engaged in the production of goods [that is, for interstate
commerce] if such employee was employed * * *, or in any process or
occupation necessary to the production thereof, in any State."
Sustaining an indictment under the act, a unanimous Court, speaking by
Chief Justice Stone, said: "The motive and purpose of the present
regulation 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 more than declaratory of the
relationship between the national and State governments as it had been
established by the Constitution before the amendment or that its purpose
was other than to allay fears that the new National Government might
seek to exercise powers not granted, and that the States might not be
able to exercise fully their reserved powers. _See_ e.g., II Elliot's
Debates, 123, 131; III id. 450, 464, 600; IV id. 140, 149; I Annals of
Congress, 432, 761, 767-768; Story, Commentaries on the Constitution,
Sec. 1907-1908."[463] Commenting recently on this decision, former
Justice Roberts said: "Of course, the effect of sustaining the Fair Labor
Standards Act was to place the whole matter of wages and hours of
persons employed throughout the United States, with slight exceptions,
under a single federal regulatory scheme and in this way completely to
supersede state exercise of the police power in this field."[464] In a
series of later cases construing terms of the act, it had been given
wide application.[465]


THE AGRICULTURAL MARKETING AGREEMENT ACT

Meantime Congress had returned to the task of bolstering agriculture by
passing the Agricultural Marketing Agreement Act of June 3, 1937,[466]
authorizing the Secretary of Agriculture to fix the minimum prices of
certain agricultural products, when the handling of such products occurs
"in the current of interstate or foreign commerce or * * * directly
burdens, obstructs or affects interstate or foreign commerce in such
commodity or product thereof." In United States _v._ Wrightwood Dairy
Company[467] the Court sustained an order of the Secretary of
Agriculture fixing the minimum prices to be paid to producers of milk in
the Chicago "marketing area." The 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 effective
execution of the granted power to regulate interstate commerce. _See_
McCulloch _v._ Maryland, 4 Wheat. 316, 421; * * * The power of Congress
over interstate commerce is plenary and complete in itself, may be
exercised to its utmost extent, and acknowledges no limitations other
than are prescribed in the Constitution. Gibbons _v._ Ogden, 9 Wheat. 1,
196. It follows that no form of State activity can constitutionally
thwart the regulatory power granted by the commerce clause to Congress.
Hence the reach of that power extends to those intrastate activities
which in a substantial way interfere with or obstruct the exercise of
the granted power."[468]

In Wickard _v._ Filburn[469] a still deeper penetration by Congress into
the field of production was sustained. As amended by the act of 1941,
the Agricultural Adjustment Act of 1938,[470] regulates production even
when not intended for commerce but wholly for consumption on the
producer's farm. Sustaining this extension of the act, the Court pointed
out that the effect of the statute was to support the market. It said:
"It can hardly be denied that a factor of such volume and variability as
home-consumed wheat would have a substantial influence on price and
market conditions. This may arise because being in marketable condition
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 regulation, would have
a substantial effect in defeating and obstructing its purpose to
stimulate trade therein at increased prices."[471] And it elsewhere
stated: "Questions of the power of Congress are not to be decided by
reference to any formula which would give controlling force to
nomenclature such as 'production' and 'indirect' and foreclose
consideration of the actual effects of the activity in question upon
interstate commerce. * * * The Court's recognition of the relevance of
the economic effects in the application of the Commerce Clause, * * *,
has made the mechanical application of legal formulas no longer
feasible."[472]


Acts of Congress Prohibiting Commerce


FOREIGN COMMERCE; JEFFERSON'S EMBARGO

"Jefferson's Embargo" of 1807-1808, which cut all trade with Europe, was
attacked on the ground that the power to regulate commerce was the power
to preserve it, not the power to destroy it. This argument was rejected
by Judge Davis of the United States District Court for Massachusetts in
the following words: "A national sovereignty is created [by the
Constitution]. Not an unlimited sovereignty, but a sovereignty, as to
the objects surrendered and specified, limited only by the
qualifications and restrictions, expressed in the Constitution. Commerce
is one of those objects. The care, protection, management and control,
of this great national concern, is, in my opinion, vested by the
Constitution, in the Congress of the United States; and their power is
sovereign, relative to commercial intercourse, qualified by the
limitations and restrictions, expressed in that instrument, and by the
treaty making power of the President and Senate. * * * Power to
regulate, it is said, cannot be understood to give a power to
annihilate. 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
war. It, of course, has power to prepare for war; and the time, the
manner, and the measure, in the application of constitutional means,
seem to be left to its wisdom and discretion. * * * Under the
Confederation, * * * we find an express reservation to the State
legislatures of the power to pass prohibitory commercial laws, and, as
respects exportations, without any limitations. Some of them exercised
this power. * * * Unless Congress, by the Constitution, possess the
power in question, it still exists in the State legislatures--but this
has never been claimed or pretended, since the adoption of the federal
Constitution; and the exercise of such a power by the States, would be
manifestly inconsistent with the power, vested by the people in
Congress, 'to regulate commerce.' Hence I infer, that the power,
reserved to the States by the articles of Confederation, is surrendered
to Congress, by the Constitution; unless we suppose, that, by some
strange process, it has been merged or extinguished, and now exists no
where."[473]


FOREIGN COMMERCE; PROTECTIVE TARIFFS

Tariff laws have customarily contained prohibitory provisions, and such
provisions have been sustained by the Court under Congress's revenue
powers (_see above_) and under its power to regulate foreign commerce.
Speaking for the Court in University of Illinois _v._ United
States,[474] in 1933, Chief Justice Hughes said: "The Congress may
determine what articles may be imported into this country and the terms
upon which importation is permitted. No one can be said to have 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, Sec. 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. The contrary is well
established. Gibbons _v._ Ogden, 9 Wheat. 1, 202. 'Under the power to
regulate foreign commerce Congress impose duties on importations, give
drawbacks, pass embargo and nonintercourse laws, and make all other
regulations necessary to navigation, to the safety of passengers, and
the protection of property.' Groves _v._ Slaughter, 15 Pet. 449, 505.
The laying of duties is 'a common means of executing the power.' 2 Story
on the Constitution, Sec. 1088."[475]


FOREIGN COMMERCE; BANNED ARTICLES

The forerunners of more recent acts excluding objectionable commodities
from interstate commerce are the laws forbidding the importation of like
commodities from abroad. This power Congress has exercised since 1842.
In that year it forbade the importation of obscene literature or
pictures from abroad.[476] Six years later it passed an act "to prevent
the importation of spurious and adulterated drugs" and to provide a
system of inspection to make the prohibition effective.[477] Such
legislation guarding against the importation of noxiously adulterated
foods, drugs, or liquor has been on the statute books ever since. In
1887 the importation by Chinese nationals of smoking opium was
prohibited,[478] and subsequent statutes passed in 1909 and 1914 made it
unlawful for anyone to import it.[479] In 1897 Congress 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 of foreign
articles recognized and enforced by many previous decisions of this
court, the contentions are so devoid of merit as to cause them to be
frivolous."[484] In Brolan _v._ United States[485] the Court again
stressed the absolute nature of Congress's power over foreign commerce,
saying: "In the argument reference is made to decisions of this court
dealing with the subject of the power of Congress 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 distinction which exists between the
two powers and therefore the cases cited and many more which might be
cited announcing the principles which they uphold have obviously no
relation to the question in hand."[486]


INTERSTATE COMMERCE; CONFLICT OF DOCTRINE AND OPINION

The question whether Congress's power to regulate commerce "among the
several States" embraced the power to prohibit it furnished the topic of
one of the most protracted debates in the entire history of the
Constitution's interpretation, a debate the final resolution of which in
favor of Congressional power is an event of first importance 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 which the Fair Labor Standards
Act was sustained. The resume of it which is given below is based on
judicial opinions, arguments of counsel, and the writings of jurists and
political scientists. Much of this material was evoked by efforts of
Congress, from about 1905 onward, to stop the shipment interstate of the
products of child labor.


ACTS OF CONGRESS PROHIBITIVE OF INTERSTATE COMMERCE

The earliest such acts were in the nature of quarantine regulations and
usually dealt solely with interstate transportation. In 1884 the
exportation or shipment in interstate commerce of livestock having any
infectious disease was forbidden.[488] In 1903 power was conferred upon
the Secretary of Agriculture to establish regulations to prevent the
spread of such diseases through foreign or interstate commerce.[489] In
1905 the same official was authorized to lay an absolute embargo or
quarantine 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 was invested with powers of quarantine on interstate
commerce for the protection of plant life from disease similar to those
above described for the prevention of the spread of animal disease.
While the Supreme Court originally held federal quarantine regulations
of this sort to be constitutionally inapplicable to intrastate shipments
of livestock, on the ground that federal authority extends only to
foreign and interstate commerce,[494] this view has today been
abandoned. _See_ pp. 248-249.


THE LOTTERY CASE

The first case to come before the Court in which the issues discussed
above were canvassed at all thoroughly was Champion _v._ Ames,[495]
involving the act of 1895 "for the suppression of lotteries."[496] An
earlier act excluding 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 uses. But in the case of commerce the facilities are
not ordinarily furnished by the National Government, and the right to
engage in foreign and interstate commerce comes from the Constitution
itself, or is anterior to it.

How difficult the Court found the question produced by the act of 1895,
forbidding any person to bring within the United States or to cause to
be "carried from one State to another" any lottery ticket, or an
equivalent thereof, "for the purpose of disposing of the same," is shown
by the fact that the case was thrice argued before the Court, and the
fact that the Court's decision finally sustaining the act was a
five-to-four decision. The opinion of the Court, on the 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 regulate." Justice Johnson's
assertion on the same occasion is also given: "The power of a sovereign
State over commerce, * * *, amounts to nothing more than, a power to
limit and restrain it at pleasure." Further along is quoted with evident
approval Justice Bradley's statement in Brown _v._ Houston,[500] that
"the power to regulate commerce among the several States is granted to
Congress in terms as absolute as is the power to regulate commerce with
foreign nations."


NATIONAL PROHIBITIONS AND STATE POLICE POWER

Following in the wake of Champion _v._ Ames, Congress has repeatedly
brought its prohibitory powers over interstate commerce and
communications to the support of certain local policies of the States in
the exercise of their reserved powers, thereby aiding them in the
repression of the liquor traffic,[501] of traffic in game taken in
violation of State laws,[502] of commerce in convict-made goods,[503] of
the white slave traffic,[504] of traffic in stolen motor vehicles,[505]
of kidnapping,[506] of traffic in stolen property,[507] of
racketeering,[508] of prize-fight films or other pictorial
representation of encounters of pugilists.[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 commerce among the
States, Congress was equally free to support State legislative policy or
to devise a policy of its own. "Congress," it said, "may exercise this
authority in aid of the policy of the State, if it sees fit to do so. It
is equally clear that the policy of Congress acting independently of the
States may induce legislation without reference to the particular policy
or law of any given State. Acting within the authority conferred by the
Constitution it is for Congress to determine what legislation will
attain its purposes. The control of Congress over interstate commerce is
not to be limited by State laws."[511]


HAMMER _v._ DAGENHART

However, it is to be noted that none of this legislation operated in the
field of industrial relations. So when the Court was confronted in 1918,
in the case of Hammer _v._ Dagenhart,[512] with an act which forbade
manufacturers and others to offer child-made goods for transportation in
interstate commerce,[513] it held the act, by the narrow vote of five
Justices to four, to be not an act regulative of commerce among the
States, but one which invaded the reserved powers of the States. "The
maintenance of the authority of the States over matters purely local,"
said Justice Day for 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 labor of their
production is over, and the mere fact that they were intended for
interstate commerce transportation does not make their production
subject to federal control under the commerce power. * * * 'When
commerce begins is determined, not by the character of the commodity,
nor by the intention of the owner to transfer it to another State for
sale, * * *, but by its actual delivery to a common carrier for
transportation, * * *' (Mr. Justice Jackson in _In re Greene_, 52 Fed.
Rep. 113). This principle has been recognized often in this court. Coe
_v._ Errol, 116 U.S. 517 * * *."[515]

The decision in Hammer _v._ Dagenhart was, in short, governed by the
same general conception of the interstate commerce process as that which
governed the decision in the Sugar Trust Case. Commerce was envisaged as
beginning only with an act of transportation from one State to another.
And from this it was deduced that the only commerce 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 interstate traffic in the products of child
labor--pernicious because it bore "a real and substantial relation" to
the existence of child labor employment in some States and constituted a
direct inducement to its spread to other States. Deprived of the
interstate market which this decision secured to it, child labor could
not exist.


INTERSTATE COMMERCE IN STOLEN GOODS BANNED

In Brooks _v._ United States,[516] decided in 1925, the Court, in
sustaining the National Motor Vehicle Theft Act of 1919,[517] materially
impaired the _ratio decidendi_ of Hammer _v._ Dagenhart. At the outset
of his opinion for the Court, Chief Justice Taft stated the general
proposition that "Congress can certainly regulate interstate commerce to
the extent of forbidding and punishing the use of such commerce as an
agency to promote immorality, dishonesty or the 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 organized conspiracies for the theft of
automobiles * * *, and their sale or other disposition" in another
police jurisdiction from the owner's. This, the opinion declared, "is a
gross misuse of interstate commerce. Congress may properly punish such
interstate transportation by anyone with knowledge of the theft, because
of its harmful result and its defeat of the property rights of those
whose machines against their will are taken into other
jurisdictions."[518]

The Motor Vehicle Act was sustained, therefore, mainly as protective of
owners of automobiles, that is to say, of interests in "the State of
origin." It was designed to repress automobile thefts, and that
notwithstanding 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 interstate commerce becomes operative. Also, the Court took
cognizance of "elaborately organized conspiracies" for the theft and
disposal of automobiles across State lines--that, to say, of a
widespread traffic in such property.


THE DARBY CASE

The formal overruling of Hammer _v._ Dagenhart, however, did not occur
until 1941 when, in sustaining the Fair Labor Standards Act, a unanimous
Court, speaking by Justice Stone, said: "Hammer _v._ Dagenhart has not
been followed. The distinction on which the decision was rested that
Congressional power to prohibit interstate commerce is limited to
articles which in themselves have some harmful or deleterious
property--a distinction which was novel when made and unsupported by any
provision of the Constitution--has long since been abandoned. * * * The
thesis of the opinion that the motive of the prohibition 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 which have prevailed in the interpretation of the
Commerce Clause both before and since the decision and that such
vitality, as a precedent, as it then had has long since been exhausted.
It should be and now is overruled."[519] And commenting in a recent case
on the Fair Labor Standards Act, Justice Burton, speaking for the Court
said: "The primary purpose of the act is not so much to regulate
interstate commerce as such, as it is, through the exercise of
legislative power, to prohibit the shipment of goods in interstate
commerce if they are produced under substandard labor conditions."[520]


CONGRESS AND THE FEDERAL SYSTEM

In view of these developments the following dictum by Justice
Frankfurter, was no doubt, intended to be reassuring as to the future of
the Federal System: "The interpenetrations of modern society have not
wiped out State lines. It is not for us [the Court] 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, but that cannot justify absorption of
legislative power by the United States over every activity."[521] While
this may be conceded, the unmistakable lesson of recent cases is that
the preservation of our Federal System depends today mainly upon
Congress.


The Commerce Clause as a Restraint on State Powers


DOCTRINAL BACKGROUND

The grant of power to Congress over commerce, unlike that of power to
levy customs duties, the power to raise armies, and some others, is
unaccompanied by correlative restrictions on State power. This
circumstance does not, however, of itself signify that the States were
expected still to participate 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 hence render
the notion of a like power in the States "contradictory and
repugnant."[522] As an example of the latter kind of power Hamilton
mentioned the power of Congress to pass a uniform naturalization law.
Was the same principle expected to apply to the power over foreign and
interstate commerce?

Unquestionably one of the great advantages anticipated from the grant to
Congress of power over commerce was that State interferences with trade,
which had become a source of sharp discontent under the Articles of
Confederation, would be thereby brought to an end. As Webster stated in
his argument for appellant in Gibbons _v._ Ogden: "The prevailing motive
was to regulate commerce; to rescue it from the embarrassing 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 time, exist a
variety of commercial regulations; * * * By common consent, those laws
dropped lifeless from their statute books, for want of sustaining power
that had been relinquished to Congress";[523] and Madison's assertion,
late in life, that power had been granted Congress over interstate
commerce mainly as "a negative and preventive provision against
injustice among the States,"[524] carries a like implication.

That, however, the commerce clause, unimplemented by Congressional
legislation, took from the States any and all power over foreign and
interstate commerce was by no means universally conceded; and Ogden's
attorneys directly challenged the idea. Moreover, as was pointed out 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 a "concurrent"
power over interstate and foreign commerce, then by virtue of "that
immense mass of legislation," as Marshall termed it, "which embraces
everything within the territory of a State, not surrendered to the
general government,"[525]--in a word, the "police power."

The commerce clause does not, therefore, without more ado, settle the
question of what power is left to the States to adopt legislation
regulating foreign or interstate commerce in greater or less measure. To
be sure, in cases of flat conflict between an act or acts of Congress
regulative of such commerce and a State legislative act or 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 to cover--what
rules then apply? Since Gibbons _v._ Ogden both of these situations
have confronted the Court, especially as regards interstate commerce,
hundreds of times, and in meeting them the Court has, first and last,
coined or given currency to numerous formulas, some of which still
guide, even when they do not govern, its judgment.


DOCTRINAL BACKGROUND; WEBSTER'S CONTRIBUTION

The earliest, and the most successful, attempt to set forth a principle
capable of guiding the Court in adjusting the powers of the States to
unexercised power of Congress under the commerce clause was that which
was made by Daniel Webster in his argument in Gibbons _v._ Ogden, in the
following words: "He contended, * * *, that the people intended, in
establishing the Constitution, to transfer from the several States to a
general government, those high and important powers over commerce,
which, 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
necessarily be complete, entire and uniform." At the same time Webster
conceded "that the words used in the Constitution, 'to regulate
commerce,' are so very general and extensive, that they might be
construed to cover a vast field of legislation, part of which has always
been occupied by State laws; and therefore, the words must have a
reasonable construction, and the power should be considered as
exclusively vested in Congress, so far, and so far only, as the nature
of the power requires."[527]

Webster also dealt with the problem which arises when Congress has
exercised its power. The results of its act, he contended, must be
treated as a unit, so that when Congress had left subject matter within
its 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
creating the Livingston-Fulton monopoly to be in direct conflict with
the Enrolling and Licensing Act of 1793, was not compelled to pass on
either of Webster's theories, he indicated his sympathy with them.[528]


COOLEY _v._ BOARD OF PORT WARDENS

Aside from Marshall's opinion in 1827 in Brown _v._ Maryland,[529] in
which the famous "original package" formula made its debut, the most
important utterance of the Court touching interpretation of the commerce
clause as a restriction on State legislative power is that for which
Cooley _v._ Board of Wardens of Port of Philadelphia,[530] decided 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 uniform
rule" operating throughout the country and those which "as imperatively"
demand "that diversity which alone can meet the local necessities of
navigation," that is to say, of commerce. As to the former the Court
held Congress's power to be "exclusive"--as to the latter it held that
the States enjoyed a power of "concurrent legislation."

While this formula obviously stems directly from Webster's argument in
Gibbons _v._ Ogden, it covers considerably less ground. Citation,
nevertheless, of the Cooley case throughout the next half century
eliminated 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 those phases of it which require "uniform regulation";
_second_, that outside this field, as plotted by the Court, the States
enjoyed a "concurrent" power of regulation, subject to Congress's
overriding power.[531]


JUDICIAL FORMULAS

But meantime other formulas had emerged from the judicial smithy,
several of which are brought together into something like a doctrinal
system, in Justice Hughes' comprehensive opinion for the Court in the
Minnesota Rate Cases,[532] decided in 1913. "Direct" regulation of
foreign or interstate commerce by 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 "incidental" or
"indirect" effects are always subject to Congressional disallowance.
"Our system of government," Justice Hughes reflects, "is a practical
adjustment by which the National authority as conferred by the
Constitution is maintained in its fall scope without unnecessary loss of
local efficiency."[533]

In more concrete terms, the varied formulas which characterize this
branch of our Constitutional Law have been devised by the Court from
time to time in an endeavor to effect "a practical adjustment" between
two great interests, the maintenance of freedom of commerce except so
far as Congress may choose 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 in 1940 three Justices joined in
an opinion in which they urged that the business of drawing the line
between the immunity of interstate commerce and the taxing power of the
States "should be left to the legislatures of the States and the
Congress," with the final remedy in the hands of the latter.[534]


State Taxing Power and Foreign Commerce


BROWN _v._ MARYLAND; THE ORIGINAL PACKAGE DOCTRINE

The leading case under this heading is Brown _v._ Maryland,[535] decided
in 1827, the issue in which was the validity of a Maryland statute
requiring "all importers of foreign articles or commodities,"
preparatory to selling the same, to take out a license. Holding this act
to be void under both article I, sec. 10, and the commerce clause, the
Court, speaking through Chief Justice Marshall, advanced the following
propositions: (1) that "commerce is intercourse; one of its most
ordinary ingredients is traffic"; (2) that the right to import includes
the right to sell; (3) that a tax on the 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
packages," the law may treat them as part and parcel of such property;
(6) that even while in the original package imports are subject to the
incidental operation of police measures adopted by the State in good
faith for the protection of the public against apparent dangers. Lastly,
in determining whether a State law amounts to a regulation of commerce
the Court would, Marshall announced, be guided by "substance" and not by
"form"--a proposition which has many times opened the way to extensive
inquiries by the Court into the actualities both of commercial practice
and of State administration.

The decision in Brown _v._ Maryland, but more especially the "original
package doctrine" there laid down, has been sometimes criticised as
going too far. It would have been sufficient, the critics contend, for
the Court to have held the Maryland act void on account of its obviously
discriminatory character; and they urge that original packages receiving
the protection of the State ought to be subject to nondiscriminatory
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 rather as a stop-gap
principle. History has proved, however, that in this he builded better
than he knew. For in the field of foreign commerce the original package
doctrine has never been disturbed, and it has scarcely been added to;
and so confined, it has never been surpassed by any later piece of
judicial legislation, whether in point of durability or in that of
definiteness and easy comprehensibility.[536]


State Taxation of the Subject Matter of Interstate Commerce


GENERAL CONSIDERATIONS

The task of drawing the line between State power and the commercial
interest has proved a comparatively simple one in the field of foreign
commerce, the two things being in great part territorially distinct.
With "commerce among the States" it is very different. This is conducted
in the interior of the country, by persons and corporations that are
ordinarily engaged also in local business; its usual incidents are acts
which, if unconnected with commerce among the States, would fall within
the State's powers of police and taxation; while the things it deals in
and the instruments by which 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 such adjustment is inherent in a Federal Government like ours, where
the same transaction has aspects that may concern the interests and
involve the authority of both the central government and the constituent
States. The history of this problem is spread over hundreds of volumes
of our Reports. To attempt to harmonize all that has been said in the
past would neither clarify what has gone before nor guide the future.
Suffice it to say that especially in this field opinions must be read in
the setting of the particular cases and as the product of preoccupation
with their special facts."[537]


THE STATE FREIGHT TAX CASE

The great leading case dealing with the relation of the State's taxing
power to interstate commerce is that of the State Freight Tax,[538]
decided in 1873. The question before the Court was the validity of a
Pennsylvania statute, passed eight years earlier, which required every
company transporting freight within the State, with certain exceptions,
to pay a tax at specified rates on each ton of freight carried by it.
Overturning the act, the Court held: "(1) The transportation 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 passengers or merchandise through a State, or from one
State to another, is of this nature; (5) hence a statute of a State
imposing a tax upon freight, taken up within the State and carried out
of it, or taken up without the State and brought within it, is repugnant
to that provision of the Constitution of the United States, which
ordains that 'Congress shall have power to regulate commerce with
foreign nations and among the several States, and with the Indian
tribes.'"[539]


GOODS IN TRANSIT

States, therefore, may not tax property in transit in interstate
commerce. A nondiscriminatory tax, however, is permitted if the goods
have not yet started in interstate commerce, or have completed the
interstate transit even though 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 current of
interstate commerce. Such is the law in brief. Two questions arise,
first, when do goods originating in a State pass from under its power to
tax; and, second, when do goods arriving from another State lose their
immunity?

The leading case dealing with the first of these questions is Coe _v._
Errol,[540] in which the matter at issue was the right of the town of
Errol, New Hampshire, to tax certain logs on their way to points in
Maine, while they lay in the river before the town or along its shore
awaiting the spring freshets and consequent rise of the river. As to the
logs in the river, which had come from Maine on their way to 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 of their owners to send them out
of the State. Said Justice Bradley: "* * * goods do not cease to be part
of the general mass of property in the State, subject, as such, to its
jurisdiction, and to taxation in the usual way, until they have been
shipped, or entered with a common carrier for transportation to another
State, or have been started upon such transportation in a continuous
route or journey."[541]


STATE TAXATION OF MANUFACTURING AND MINING

Under the above rule, obviously, production is not interstate commerce
even though the thing produced is intended for the interstate market.
Thus a Pennsylvania _ad valorem_ tax on anthracite coal when prepared
and ready for shipment was held not to be an interference with
interstate commerce although applied to coal destined for a market in
other States;[542] and in Oliver Iron Company _v._ Lord[543] an
occupation tax on the mining of iron ore was upheld, although
substantially all of the ore was immediately and continuously loaded on
cars and shipped into other States. Said the Court: "Mining is not
interstate commerce, but, * * * subject to local regulation and
taxation. Its character 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 distinguishable from its transmission over wires to
consumers in another State, and hence taxable by the former State.
Likewise, a State statute imposing a privilege tax on the production of
mechanical power for sale or use did not contravene the interstate
commerce clause although applied to an engine operating a compressor to
increase the pressure of natural gas and thereby permit it to be
transported to purchasers in other States.[547] Similarly, a tax so much
per pound on shrimp taken within the three-mile belt of the coast of the
taxing State was valid, since the taxable event, the taking of the
shrimp, occurred before they could be said to have entered the
interstate commerce stream.[548]


PRODUCTION FOR AN ESTABLISHED MARKET

But while the production of goods intended for the interstate market is
taxable by the State where it takes place, their purchase for an
established market in another State is interstate commerce and as such
is neither regulatable nor taxable by the State of origin, 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 wells;[550] and a like result has been
reached as to natural gas.[551] "The typical and actual course of
events," says the Court, "marks the carriage of the greater part as
commerce among the States and theoretical possibilities may be left out
of account."[552]


REJECTION OF THE ORIGINAL PACKAGE CONCEPT IN INTERSTATE COMMERCE

But the question also arises as to when goods entering a State from
another State become part of the mass of property of the former and
hence taxable by it? In Brown _v._ Maryland,[553] Chief Justice
Marshall, had remarked at the close of his opinion, "We suppose the
principles laid down in this case, apply equally to importations from a
sister State."[554] Forty-two years later, in Woodruff _v._ Parham,[555]
an effort was made to induce the Court, in reliance on this dictum, to
apply the original package doctrine against a Mobile, Alabama tax on
sales at auction, so far as it reached "imports" from sister States.
The Court refused 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 citizens of one State with those of another."[556]
The same result was reached a few years later in Brown _v._
Houston,[557] where it was held that coal transported down the
Mississippi from Pennsylvania had been validly subjected by Louisiana to
a general _ad valorem_ property tax, having "come to its place of rest,
for final disposal or use," and hence become "a part of the general mass
of property in the State."[558] Again, however, a caveat was entered in
behalf of the power of Congress to impose a different rule affording "a
temporary exemption" of property transported from one State to another
from taxation by the latter.[559]


INSPECTION CHARGES

Woodruff _v._ Parham and Brown _v._ Houston are still good law for the
most part.[560] Nevertheless, there is one respect in which imports from
sister States are treated as "imports" in the sense of the Constitution,
and that is in being exempt from "unreasonable" inspection charges.[561]
It is 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 one thing, prohibition another. In the field of the police
power, where its applicability was not so much as suggested in Brown
_v._ Maryland, the original package doctrine has been frequently invoked
by the Court against State legislation, and even today, perhaps retains
a spark of life.[564]


LOCAL SALES: PEDDLERS

By the same token, local sales of goods brought into a State from
another State are subject to a nondiscriminatory exercise of its taxing
power. Such a tax, the Court has said, "has never been regarded as
imposing a direct burden upon interstate commerce and has no greater or
different effect upon that commerce than a general property tax to which
all those enjoying the protection of the State may be subjected"; and
this is true, even of goods immediately to be used in interstate
commerce.[565] The commerce clause, therefore, does not prohibit a State
from imposing special license taxes on merchants using profit sharing
coupons and trading stamps although the coupons may have been 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 character, the tax
having been construed by the highest court of the State as applying only
to the business of selling to local customers from the stock of
"original packages" shipped into the State without a previous sale or
contract to sell, and kept and held for sale in the ordinary course of
trade. Contrariwise, a tax on sales discriminatory in its incidence
against merchandise because of its origin in another State is _ipso
facto_ unconstitutional. The leading case is Welton _v._ Missouri,[569]
decided in 1876, in which a peddler's license tax confined to the sale
of goods manufactured outside the State was set aside. The doctrine of
Welton _v._ Missouri has been reiterated many times.[570]


STOPPAGE IN TRANSIT

It also follows logically from Coe _v._ Errol,[571] and the cases
deriving from it, that a State may impose a nondiscriminatory tax when
there is a break in interstate transit, and the goods have not been
restored to the current of interstate commerce. The effect of an
interruption upon the continuity of an interstate movement depends upon
its causes and purposes. If the delay is due to the necessities of the
journey, as in the Coe case, where the logs were 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, Tennessee for separation, distribution and reshipment, was
subject to the taxing power of the latter State.[573] The delay in
transportation resulting from these proceedings on the part of the
owners, the Court pointed out, was clearly designed for their own profit
and convenience and was not a necessary incident to the method of
transportation adopted, as had been the delay of the logs coming from
Maine in Coe _v._ Errol. The distinction is fundamental.[574]

Applying this rule in more recent cases, the Court has upheld State
taxation: on the use and storage of gasoline brought into the State by a
railroad company and unloaded and stored there, to be used for its
interstate trains;[575] on gasoline imported and stored by an airplane
company and withdrawn to fill airplanes that use it in their interstate
travel;[576] on supplies brought into the State by an interstate
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 interval after the
articles have reached the end of their interstate movement and before
their consumption in interstate operation has begun."[579] On the other
hand, in the absence of such an "interval," the Court declared invalid
State gasoline taxes imposed per gallon of gasoline imported by
interstate carriers as fuel for use in such vehicles, and used within
the State as well as in their interstate travel.[580]


THE DRUMMER CASES; ROBBINS _v._ SHELBY COUNTY TAXING DISTRICT

But there is one situation in which goods introduced into one State from
another have until recent years enjoyed a special immunity from taxation
by the former, and that is when they were introduced in consequence of a
contract of sale. The leading case is Robbins _v._ Shelby County Taxing
District,[581] in which the Court, after a penetrating survey of
commercial practices, ruled that "the negotiation of sales of goods"--in
this instance by sample--"which are in another State, for the purpose of
introducing them into the State in which the negotiation is made, is
interstate commerce." In short, whereas in foreign commerce, importation
is succeeded by the right to sell in the original package, in interstate
commerce sale was succeeded by the right of importation, which continued
until the goods reached the hands of the purchaser. The benefits of this
holding were extended in a series of rulings in which it was held to
apply whether solicitation of orders 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 law of sales. * * * The brooms were
specifically appropriated to specific contracts, in a practical, if not
in a technical, sense. Under such circumstances it is plain that,
wherever might have been the title, the transport of the brooms for the
purpose of fulfilling the contracts was protected commerce."[586] Nor
did it make any difference that the solicitor received his compensation
in form of down payment by the purchaser.[587] Moreover, sales under a
mail order business, with delivery taking place within the State to a
carrier for through shipment to another State to fill orders, was held
to be beyond the taxing power of the first State.[588] The fact that a
concern doing a strictly interstate business had goods on hand within
the State which were capable of being used in intrastate commerce, did
not, the Court declared, take the business out of the protection of the
commerce clause and allow the State to impose a privilege tax on such
concern.


LIMITATION OF THE ROBBINS CASE

On the other hand, it was early held that the rule laid down in the
Robbins case did not prevent a State from taxing a resident citizen who
engaged in a general commission business, on the profits thereof,
although the business consisted "for the time being, wholly or partially
in negotiating sales between resident and nonresident merchants, of
goods situated in another State."[589] Also, it has been held that a
stamp tax on transfers of corporate stock, as applied to a sale between
two nonresidents, of the stock of foreign railway corporations, was not
an interference with interstate commerce.[590] Likewise, the business of
taking orders on commission for the purchase and sale of grain and
cotton for future delivery not necessitating interstate shipment was
ruled not to be interstate commerce, and as such exempt from taxation,
although deliveries were sometimes made by interstate shipment.[591] And
in Banker Bros. Co. _v._ Pennsylvania[592] it was held that a tax upon a
domestic corporation 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 the business of buying or selling
cotton for themselves was found not to impose a forbidden burden upon
interstate commerce even though the cotton was purchased with a view to
ultimate shipment in some other State or country.[595] Nor was a
gallonage tax imposed by a State upon a distributor of liquid fuel
rendered repugnant to the commerce clause by the fact that the
distributor caused fuel sold to customers in the State to be shipped
from another State for delivery in tank cars--"deemed original
packages"--on purchaser's siding, as agreed. Said the Court: "The
contracts were executory and related to unascertained goods. * * * It
does not appear that when they were made appellant had any fuels of the
kinds covered, or that those to be delivered were then in existence.
There was no selection of goods by purchasers. Appellant was not
required by the contracts to obtain the fuels at Wilmington but was free
to effect performance by shipping from, any place within or without
Pennsylvania."[596]


THE ROBBINS CASE TODAY

In the cases reviewed in the preceding paragraph protestants against
local taxation appealed, but unavailingly, to the Robbins case. So it
would seem that the generative powers of that prolific precedent had
begun to wane somewhat even before the Depression, an event which
rendered judicial 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 second holding the same year seemed to reduce the
significance of the Robbins case itself to that of a reassertion of the
elementary rule against discrimination. "The commerce clause," Justice
Reed remarked sententiously, "forbids discrimination, whether forthright
or ingenious."[598]


DEPRESSION CASES: USE TAXES

With a majority of the States on the verge of bankruptcy, extensive
recourse was had to sales taxes and, as an offset to these in favor of
the local economy, "use" taxes on competing products coming from sister
States. The basic decision sustaining the use tax, in this novel
employment of it, was Henneford _v._ Silas Mason Co.,[599] in which was
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 opinion,
the Court said: "Equality is the theme that runs through all the
sections of the statute. * * * When the account is made up, the stranger
from afar is subject to no greater burdens as a consequence of ownership
than the dweller within the gates."[600] There being no actual
discrimination in favor of Washington products, the tax was valid.


DEPRESSION CASES: SALES TAXES

A companion piece of the Henneford case in motivation, although it
occurred three years later, was McGoldrick _v._ Berwind-White Coal
Mining Company,[601] in which it was held that in the absence of
Congressional action, a New York City general sales tax was applicable
to sales of coal under contracts entered into within the municipality
and calling for delivery therein. Speaking for the majority, Justice
Stone declared 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
imposed on the business of soliciting order for the purchase of goods to
be shipped interstate, * * *"[603] Three Justices, speaking by Chief
Justice Hughes, dissented. Three companion cases decided the same day
were found to follow the Berwind-White pattern,[604] while a fourth was
held not to, on the ground that foreign commerce was involved.[605] For
the time being Robbins and family looked to be on the way out.


END OF THE DEPRESSION CASES

Two cases, decided respectively in 1944 and 1946, signalized the end of
the Depression. In McLeod _v._ Dilworth Co.,[606] a divided Court ruled
that a sales tax could not be validly imposed by a State on sales to its
residents which were consummated by acceptance of orders in, and
shipment of goods from another State, in which title passed upon
delivery to the carrier. Said Justice Frankfurter for the majority: "A
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
on an interstate sale like the one before us and unlike the tax on the
enjoyment of the goods sold, involves an assumption of power by a State
which the Commerce Clause was meant to end."[607] He also
"distinguished" the Berwind-White case--just as it had "distinguished"
the Robbins case--but not to the satisfaction of three of his brethren,
who found the decision to mark a retreat from the Berwind-White
case.[608]

The second case, Nippert _v._ Richmond,[609] involved a municipal
ordinance imposing upon solicitors of orders for goods a license tax of
fifty dollars and one-half of one per cent of the gross earnings,
commissions, etc., for the preceding year in excess of $1,000. Speaking
for the same majority that had decided McLeod _v._ Dilworth Co., Justice
Rutledge found that "as the case has 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" this time, but also "explained." "The drummer," said
Justice Rutledge, "is a figure representative of a by-gone day," citing
Wright, Hawkers and Walkers in Early America (1927). "But his modern
prototype persists under more euphonious appellations. So endure the
basic reasons which brought about his protection from the kind of local
favoritism the facts of this case typify."[611]

A year later a Mississippi "privilege tax" laid upon each person
soliciting business for a laundry not licensed in the State, was set
aside directly on the authority of the Robbins case.[612] It would
appear that Robbins and his numerous progeny can once more claim full
constitutional status.[613]


TAXATION OF CARRIAGE OF PERSONS

Whether the carriage of persons from one State to another was a branch
of interstate commerce was a question which the Court was able to
side-step in Gibbons _v._ Ogden.[614] A quarter of a century later,
however, an affirmative answer was suggested in the Passenger
Cases,[615] in which a State tax on each passenger arriving on a vessel
from a foreign country was set aside, though chiefly in reliance on
existing treaties and acts of Congress. But similar cases arising after
the Civil War were disposed of by direct recourse to the commerce
clause.[616] Meantime, in 1865, the newly admitted State of Nevada, in
an endeavor 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
the most expeditious method. Two of the Justices, however, rejected this
line of reasoning and held the act to be void under the commerce
clause.[618] But it was not until 1885 that the Court, in deciding
Gloucester Ferry Company _v._ Pennsylvania,[619] stated flatly that
"Commerce among the States * * * includes the transportation of
persons,"[620] and hence was not taxable by the States, a proposition
which is still good law.[621] Four years earlier it had been held that
the transmission of telegraph messages from one State to another, being
interstate commerce, was something that the State of origin could not
tax.[622]


State Taxation of the Interstate Commerce Privilege: Foreign
Corporations


DOCTRINAL HISTORY

In the famous case of Paul _v._ Virginia,[623] decided in 1869, it was
held that a corporation chartered by one State could enter other States
only with their assent, which might "be granted upon such terms and
conditions as those States may think proper to impose";[624] but along
with this holding went the statement that "the power conferred upon
Congress to regulate commerce includes as well commerce carried on by
corporations as commerce carried on by individuals."[625] And in the
State Freight Tax Case it is implied that no State can regulate or
restrict the right of a "foreign" corporation--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 is the transmission of messages from one State to
another and between the United States and foreign countries, and which
is invested with the powers and privileges conferred by the act of
Congress passed July 24, 1866, and other acts incorporated in Title LXV
of the Revised Statutes? Can a State prohibit such a company from doing
such a business within its jurisdiction, unless it will pay a tax and
procure a license for the privilege? If it can, it can exclude such
companies, and prohibit the transaction of such business altogether. We
are not prepared to say that this can be done."[628]

In Crutcher _v._ Kentucky[629] a like result was reached, without
assistance from an act of Congress, with respect to a Kentucky statute
which provided that the agent of an express company not incorporated by
the laws of that State should not carry on business there without first
obtaining a license from the State, and that, preliminary thereto, he
must satisfy the 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 every citizen of the United States is
entitled to exercise under the Constitution and laws of the United
States; and the accession of mere corporate facilities, as a matter of
convenience in carrying on their business, cannot have the effect of
depriving them of such right, unless Congress should see fit to
interpose some contrary regulation on the subject."[630]


LICENSE TAXES

The demand for what in effect is a license is, of course, capable of
assuming various guises. In Ozark Pipe Line _v._ Monier[631] an annual
franchise tax on foreign corporations equal to one-tenth of one per cent
of the par value of their capital stock and surplus employed in business
in the State was found to be a privilege tax, and hence one which could
not be exacted of a foreign corporation whose business in the taxing
State consisted exclusively of the operation of a pipe line for
transporting petroleum through the State in interstate commerce, and of
activities the sole purpose of which was the furtherance of its
interstate business. Likewise a Massachusetts tax based on "the
corporate surplus" of a foreign corporation having only an office in the
State for the transaction of interstate business was held in Alpha
Portland Cement Co. _v._ Massachusetts to be virtually an attempt 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 State
occupation tax measured by the entire gross receipts of the business of
a radio broadcasting station, licensed by the Federal Communications
Commission, and engaged in broadcasting advertising "programs" for
customers for hire to listeners within and beyond the State, since it
did not "appear that any of the taxed income ... [was] allocable to
interstate commerce";[635] a State occupation tax on the business of
loading and unloading vessels engaged in interstate and foreign
commerce;[636] an Indiana income tax imposed on the gross receipts from
commerce inasmuch as the tax reached indiscriminately and without
apportionment the gross income from both interstate commerce and
intrastate activities;[637] an Arkansas statute making entry into the
State of motor vehicles carrying more than twenty gallons of gasoline
conditional on the payment of an excise on the excess.[638]


DOCTRINE OF WESTERN UNION TELEGRAPH _v._ KANSAS EX REL. COLEMAN

One of the most striking concessions ever made by the Court to the
interstate commercial interest at the expense of the State's taxing
power was that which appeared originally in 1910, in Western Union
Telegraph. Co. _v._ Kansas ex rel. Coleman,[639] which involved a
percentage tax upon the total 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 the commerce clause and the due process
of law clause of the Fourteenth Amendment. The decision was
substantially aided by the fact that the company had been doing a
general telegraphic business within the State for more than fifty years
without having been subjected to such an exaction.[640]


SPREAD OF THE DOCTRINE

The doctrine of the case, however, soon cast off these initial
limitations. In Looney _v._ Crane Company[641] a similar tax by the
State of Texas was disallowed as to an Illinois corporation, engaged in
its home State in the manufacture of hardware, but maintaining in Texas
depots and warehouses from which orders were filled and sales made,
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 companies." On the
same occasion the general proposition was laid down that "the power of a
State to regulate the transaction of a local business within its
borders by a foreign corporation, ... is not unrestricted or absolute,
but must be exerted in subordination to the limitations which the
Constitution places on State action."[643]


STATUS OF THE DOCTRINE TODAY

The precise standing of this doctrine is, nevertheless, seriously
clouded by certain more recent holdings. In Sprout _v._ South Bend,[644]
decided in 1928, the doctrine was still applied, to disallow a license
tax on concerns operating a bus interstate. Pointing to the fact that
the ordinance made no distinction between busses engaged exclusively
interstate and those engaged intrastate or both interstate and
intrastate, the Court said: "In order that the fee or tax shall be
valid, it must appear that it is imposed solely on account of the
intrastate business; that the amount exacted is not increased because of
the interstate business done; that one engaged exclusively in interstate
commerce would not be subject to the imposition; and that the person
taxed could discontinue the intrastate business 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
tax, like other taxes and expenses, lessens the benefit derived by
interstate commerce from the joint operation with it of the intrastate
business of the carrier; but it is not an undue burden on interstate
commerce where, as in this case, the advantage to the carrier, and to
the interstate commerce, of continuing the intrastate business is
greatly in excess of the tax. And subsequent holdings in cases involving
foreign corporations doing a mixed business, comprising both interstate
and intrastate elements, have tended on the whole to restore the rule
stated in Paul _v._ Virginia[649] shortly after the Civil War, that the
Constitution does not confer upon a foreign corporation the right to
engage in local business in a State without its assent, which it may
give on such terms as it chooses.[650]


State Taxation of Property Engaged in, and of the Proceeds From,
Interstate Commerce


GENERAL ISSUE

In this area of Constitutional Law the principle asserted in the State
Freight Tax Case,[651] that a State may not tax interstate commerce, is
confronted with the principle that a State may tax all purely domestic
business within its borders and all property "within its jurisdiction."
Inasmuch as most large concerns prosecute both an interstate and a
domestic business, while the instrumentalities of interstate commerce
and the pecuniary returns from such commerce are ordinarily property
within the jurisdiction of some State 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 the commerce clause has worked affirmatively on the whole,
its implied negative operation on State power has been uneven, at times
highly variable. * * * Into what is thus left open for inference to
fill, divergent ideas of meaning may be read much more readily than into
what has been made explicit by affirmation. That possibility is
broadened immeasurably when not logic alone, but large choices of
policy, affected in this instance by evolving experience of federalism,
control in giving content to the implied negation."[652]


DEVELOPMENT OF THE APPORTIONMENT RULE

At the outset the Court appears to have thought that it could solve all
difficulties by the simple device of falling back on Marshall's opinion
in Brown _v._ Maryland;[653] and on the same day that it set aside
Pennsylvania's freight tax by appeal to that transcendent precedent, it
sustained, by reference to the same authority, a Pennsylvania tax on the
gross receipts of all railroads chartered by it, the theory being that
such receipts had, by tax time, become "part of the mass of property of
the State."[654] This precedent stood fourteen years, being at last
superseded by a ruling in which substantially the same tax was held void
as to a Pennsylvania chartered steamship company.[655] A year later the
Court sustained Massachusetts in levying a tax on Western Union, a New
York corporation, on account of property owned 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 later Pennsylvania, still in quest of
revenue, was sustained in applying the Massachusetts idea to Pullman's
Palace Car Company, a "foreign" corporation.[659] Pointing to the fact
that the company had at all times substantially the same number of cars
within the State and continuously and constantly used there a portion of
its property, the Court commended the State for taking "as a basis of
assessment such proportion of the capital stock of the company as the
number of miles over which it ran cars within the State bore to the
whole number of miles, in that and other States, * * *" This, said the
Court, was "a just and equitable method of assessment;" one which, "if
it were adopted by all the States through which these cars ran, the
company would be assessed upon the whole value of its capital stock, and
no more."[660]


THE UNIT RULE

And pursuing the same course of thought, the Court, in Adams Express
Company _v._ Ohio,[661] decided in 1897, sustained that State in taxing
property worth less than $70,000.00 at a valuation of more than half a
million, on the ground that the latter figure did not exceed, in
relation to the total capital value of the company, the proportion borne
by the 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 taxation,"[662] which obviously does not meet the issue.
What the case indubitably establishes is that a State may tax property
within its limits "as part of a going concern" and hence "at its value
as it is in its organic relations," although those relations constitute
interstate commerce.[663] In short, values created by interstate
commerce _are_ taxed.

Thus emerged the concept of an "apportioned" tax, or as it is called
when applied to the problem of property valuation, the "unit rule,"
which till 1938 afforded the Court its chief reliance in the field of
Constitutional Law now under review. The theory underlying 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 "measure" a tax, without
unconstitutionally burdening or interfering with interstate commerce,
while at the same time exacting from it a fair return for the protection
which the State gives it. The question in each case is, of course,
whether the State has guessed right.


APPORTIONED PROPERTY TAXES

In reliance on the apportionment concept the Court has at various times
sustained, in the case of a sleeping car company, as we have seen, a
valuation based on the ratio of the miles of track over which the
company runs within the State to the whole track mileage over which it
runs;[664] in the case of a railroad company, a valuation based on the
ratio of its mileage within the State to its total mileage;[665] in the
case of a telegraph company, a valuation based upon the ratio of its
length of line within the State to its total length;[666] in the case of
an express company, as we have just seen, a valuation based upon the
ratio of miles covered by it in the State to the mileage covered by it
in all States.[667] Also, a tax has been upheld as to a railroad line
whose principal business was hauling 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 objection that
the mileage formula was inapplicable in this instance because of the
disparity of the revenue-producing capacity between the lines in and out
of the State, the Court answered that mathematical exactitude in making
an apportionment had never been a constitutional requirement.
"Wherever," it explained, "the State's taxing authorities have been held
to have intruded upon the protected domain of interstate commerce in
their use of a mileage formula, the special circumstances of the
particular situation, in the view which this Court took of them,
precluded a defensible utilization of the mileage basis."[670] The
principle of apportionment is, moreover, applicable to the intangible
property of a company engaged in both interstate and local commerce, as
well as to its tangible property.[671]


APPORTIONED GROSS RECEIPTS TAXES

The first State to attempt to employ the apportionment device in order
to tax the gross receipts of companies engaged in interstate commerce
was Maine, in connection with a so-called "franchise tax," which was
levied on such proportion of the revenues of railroads operating in the
State as their mileage there bore to their total mileage. In Maine _v._
Grand Trunk Railway Company,[672] a sharply divided Court upheld the tax
on the basis of its designation, giving scant attention to its
apportionment feature. Said Justice Field for the majority: "The
privilege 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
policy."[673] Four Justices, speaking by Justice Bradley, protested
forcefully that the decision directly contradicted a whole series of
decisions holding that the States are without power to tax interstate
commerce;[674] and seventeen years later another sharply divided Court
endorsed this contention when it overturned a Texas gross receipts tax
drawn on the lines of the earlier Maine statute.[675] The Maine tax,
however, the later Court suggested, had been in the nature of a
commutation tax in lieu of all taxes, which the Texas tax was not.[676]


FRANCHISE TAXES

Today the term, franchise tax, possesses no specific saving quality of
its own. If the tax is merely a "just equivalent" of other taxes it is
valid however calculated.[677] Conversely, when such taxes 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 ordinarily the apportionment
concept, and if the basis of apportionment adopted by the taxing State
is deemed by the Court to be a fair and reasonable one, the tax will be
sustained; otherwise, not.

Thus a franchise tax may be measured by such proportion of the company's
net income as its capital invested in the taxing State and its business
carried on there bear to its total capital and business;[679] also by
the net income justly attributable to business done within the State
although a part of this was derived from foreign or interstate
commerce;[680] also by such proportion of the company's outstanding
capital stock, surplus and undivided profits, 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 engaged in interstate commerce, was, as we saw above, held
void;[683] as was also one which was measured by assigning to the
company's property in the State the same proportion of the total value
of its stocks and bonds as its mileage in the State bore to its total
mileage, no account being taken of the greater cost of construction of
the company's lines in other States or of its valuable terminals
elsewhere.[684] Other examples were given earlier.[685]


GROSS RECEIPTS TAXES, CLASSES OF

The late Justice Rutledge classified gross receipts taxes which have
been sustained by the Court as follows: (a) those which were judged to
be fairly apportioned;[686] (b) those which were justified on a "local
incidence" theory, or the burden of which on interstate commerce was
held to be "remote";[687] (c) those which were justified as not inviting
the danger of multiple 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 which a discriminatory
element was detected in that they were directed exclusively at
transportation or communication;[691] (d) those in which there was no
discrimination but a possible multiple burden;[692] and, of course, any
tax which it disallows the Court is always free to stigmatize as an
unconstitutional attempt to tax or license the interstate commerce
privilege.[693]


"MULTIPLE TAXATION" TEST

That the Depression--allowing for the customary judicial lag--greatly
altered the Court's conception of Congress's powers under the commerce
clause, was pointed out earlier.[694] To a less, but appreciable degree,
it also affected its views as to the allowable scope under the clause of
the taxing power of the States, a majority of which were on the verge
of bankruptcy. The more evident proofs of this fact occurred in relation
to State taxation of the subject matter of interstate commerce, as is
indicated above.[695] But a certain revision of doctrine, apparently
temporary in nature, however, is to be seen in the connection with State
taxes impinging on property engaged in interstate commerce and the
revenues from such commerce, the principal manifestation of which is to
be seen in the emphasis which was for a time given the "multiple
taxation" test. Thus in his opinion in the Western Live Stock Case,[696]
cited above, Justice Stone seems to be engaged in an endeavor to erect
this into an almost exclusive test of the validity, or invalidity of
State taxation affecting 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 commerce is being done, so
that without the protection of the commerce clause it would bear
cumulative burdens not imposed on local commerce. * * * The
multiplication of State taxes measured by the gross receipts from
interstate transactions would spell the destruction of interstate
commerce and renew the barriers to interstate trade which it was the
object of the commerce clause to remove," citing cases, most of which
have been discussed above.[698] And speaking again for the Court eleven
months later, in Gwin, White and Prince _v._ Henneford,[699] Justice
Stone applied the test to invalidate a State of Washington tax. "Such a
tax," said he, "at least when not apportioned to the activities carried
on within the State, * * * would, if sustained, expose it [interstate
commerce] to multiple tax burdens, each measured by the entire amount of
the commerce, to which local commerce is not subject." The tax thus
discriminated against interstate commerce; and threatened to
"reestablish the barriers to interstate trade which it was the object of
the commerce clause to remove."[700]

The adoption by the Court of the multiple taxation principle as an
exclusive test of State taxing power in relation to interstate commerce
would have enlarged the former; but this was not the sole reason for its
temporary vogue with the Court, or at least a section of it. Discontent
with the difficulties 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 'multiple taxation' or
'apportionment'" should be left to Congress,[701] a suggestion which
Justice Black, speaking also for Justices Frankfurter and Douglas a year
later, made the basis of a dissenting opinion,[702] from the doctrines
of which, however, Justice Frankfurter appears since to have
recanted.[703]


RECENT CASES

In Freedman _v._ Hewit,[704] decided in 1946, the Court held void as an
"unconstitutional burden on interstate commerce" an Indiana gross income
tax of the proceeds from certain securities sent outside the State to be
sold. Justice Frankfurter spoke for the Court; Justice Rutledge
concurred in an opinion deploring the majority's failure to employ the
multiple taxation test;[705] three Justices dissented.[706] In Joseph
_v._ Carter and Weekes Stevedoring Co.,[707] also decided in 1947, the
Court, reaffirming an earlier ruling, held void the application of a
Washington gross receipts tax to the receipts of a stevedoring company
from loading and unloading vessels employed in interstate and foreign
commerce, or to the privilege of engaging in such business measured by
their receipts. Said Justice Reed for the Court: "Although State laws do
not discriminate against interstate commerce or * * * subject it to the
cumulative burden of multiple levies, those laws may be unconstitutional
because they burden or interfere with [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 the company to the danger of multiple taxation. In
Memphis Natural Gas Co. _v._ Stone,[712] also of the 1948 grist, a
Mississippi franchise tax, measured by the value of capital invested or
employed in the State, was sustained in the case of a gas pipeline
company a portion of whose line passed through the State but which did
no local business there. Three Justices, speaking by Justice Reed, held
that the tax was on the intrastate activities of the company in
maintaining its facilities there, and was no more burdensome than the
concededly valid _ad valorem_ tax on the company's property in the
State. Justice Rutledge held that the tax was valid because it did not
discriminate against interstate commerce nor invite multiple taxation,
while Justice Black concurred without opinion. Four Justices, speaking
by Justice Frankfurter, contended that the pipeline already paid the _ad
valorem_ tax to which Justice Reed had adverted, and that the franchise
tax must therefore be regarded as being on the interstate commerce
privilege.

This survey of recent cases leaves the impression that the Court is at
loose ends for intermediate guiding principles in this field of
Constitutional Law. The "leave it to Congress" formula is evidently in
the discard, although Justice Black's successive dissents without
opinion may indicate that he still thinks it sound. The multiple tax
test seems to be in an equally bad way, with both Chief Justice Stone
and Justice Rutledge in the grave. The concept of an apportioned tax
still has some vitality however, although just how much is difficult to
assess. Thus in Interstate Oil Pipe Line 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 franchise
taxes on a foreign corporation for the privilege of carrying on or the
actual doing of solely interstate business," even though the tax is not
discriminatory and is fairly apportioned between the corporation's
intrastate and interstate business. The tax in controversy was sustained
by the vote of the ninth Justice, who construed it as being levied only
on the privilege of engaging in intrastate commerce, a conclusion which
obviously ignores the question of the tax's actual impact on interstate
commerce, the precise question on which many previous decisions have
turned.[714]


TAXES ON NET INCOME

The leading case under this caption is United States Glue Co. _v._ Oak
Creek[715] where it was held that the State of Wisconsin, in laying a
general income tax upon the gains and profits of a domestic corporation,
was entitled to include in the computation the net income derived from
transportations in interstate commerce. Pointing out the difference
between such a tax and one on gross receipts, 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 not arise at all unless a gain is shown over and above
expenses and losses, and the tax cannot be heavy unless the profits are
large." Such a tax "constitutes one of the ordinary and general burdens
of government, from which persons and corporations otherwise subject to
the jurisdiction of the States are not exempted * * * because they
happen to be engaged in commerce among the States."[716]

Adhering to this precedent, the Court has held that a tax upon the net
income of a nonresident from business carried on by him in the State is
not a burden on interstate commerce merely because the products of the
business are shipped out 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 unreasonable.[718]
Where, however, the method of allocating the net income of a foreign
corporation attributed to the State an amount of income out of all
proportion to the business there transacted by the corporation, it was
held void.[719]

Also, a State may impose a tax upon the net income of property, as
distinguished from the net income of him who owns or operates it,
although the property is used in interstate commerce;[720] also a
"franchise tax" measured by the net income justly attributable to
business done by corporations within the State, although part of the
income so attributable comes 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] Indeed it was asserted
that even if the taxpayer's business were wholly interstate commerce,
such a nondiscriminatory tax upon its net income "is not prohibited by
the commerce clause," there being no showing that the income was not on
net earnings partly attributable to the taxing State;[723] but a more
recent holding appears to contradict this position.[724]


MISCELLANEOUS TAXES AFFECTING INTERSTATE COMMERCE


Vessels

In Gloucester Ferry Company _v._ Pennsylvania,[725] decided in 1885, the
Court held inapplicable to a New Jersey corporation which was engaged
solely in transporting passengers across the Delaware River and entered
Pennsylvania only to discharge and receive passengers and freight, a
statute which taxed the capital stock of all corporations doing business
within the State. Such transactions, the Court held, were interstate
commerce; nor were the company's vessels subject to taxation by
Pennsylvania, their taxing _situs_ being in the company's home State.
The only property held by the company in Pennsylvania was the lease
there of a wharf which could be taxed by the State according to its
appraised value; and the State could also levy reasonable charges by way
of tolls 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 States and engaged in the coastwise trade, that the domicile
of the owner is deemed to be the _situs_ of the vessel for purposes of
taxation,[728] unless the vessel has acquired actual _situs_ in another
State, by continuous employment there, in which event it may be taxed
there.[729] Recently, however, this long standing rule has been amended
by the addition to it of the apportionment rule as developed in the
Pullman case. This occurred in Ott _v._ Mississippi Barge Line Co.,[730]
decided in 1949, in which the Court sustained Louisiana in levying an
_ad valorem_ tax on vessels owned by an interstate carrier and used
within the State, the assessment for the tax being based on the ratio
between the number of miles of the carrier's lines within the State and
its total mileage.


Airplanes

When, however, it was confronted by an attempt on the part of the State
of Minnesota to impose a personal property tax on the entire air fleet
owned and operated by a company in interstate commerce although only a
part of it was in the State on tax day, the Court found itself unable to
recruit a majority for any of the above formulas.[731] Pointing to the
fact that the company was a Minnesota corporation and that its principal
place of business was located in the State, Justice Frankfurter 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
somewhat neglected but to me wise authorities cited," to wit, the Hays
case and those decided by analogy to it.[735] Four Justices, speaking by
Chief Justice Stone dissented, urging the Pullman Case[736] as an
applicable model and the fact that "the rationale found necessary to
support the present tax leaves other States free to impose comparable
taxes on the same property."[737] Evidently in this area of
Constitutional Law the Court is still much at sea or better perhaps, "up
in the air."


Motor Vehicles

In the matter of motor vehicle taxation, on the other hand, durable and
consistent results have been achieved. This is because most such
taxation has been readily classifiable as the exaction of a toll for the
use of the State's highways, and the only question was whether the toll
was exorbitant. Moreover, such taxatio