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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]


Résumé

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, § 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., § 137.

[37] Ibid., § 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_, § 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, § 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 § 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 § 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 § 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, § 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 § 3 independently of
§ 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 § 3 of the act of 1887, as interpreted
in the Shreveport Case, was greatly enlarged by § 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 employés who are
connected with the movement of trains in interstate transportation is
comprehended within this sphere of authorized legislation. This question
admits of but one answer. The length of hours of service has direct
relation to the efficiency of the human agencies upon which protection
of life and property necessarily depends. * * * In its power suitably to
provide for the safety of the employés 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 § 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,
§§ 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, § 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, § 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 résumé 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 taxation is apt to be designed not merely
to raise revenue but to promote safety on the highways. In the leading
case, Hendrick _v._ Maryland,[738] decided in 1915, the Court took
cognizance of the fact that "the movement of motor vehicles over the
highways is attended by constant and serious dangers to the public, and
is also abnormally destructive to the ways themselves";[739] and on this
factual basis it has held that registration may be required by a State
for out-of-State vehicles operated therein,[740] or passing through from
one State to another;[741] that a special fee may be exacted for the
privilege of transporting motor vehicles on their own wheels in
caravans,[742] unless excessive;[743] that taxes may also be imposed on
carriers based on capacity[744] or mileage,[745] or as a flat fee;[746]
but that a privilege tax on motor busses operated exclusively in
interstate commerce, cannot be sustained unless it appears affirmatively
in some way, that it is levied only as compensation for use of the
highways in the State or to defray the expense of regulating motor
traffic.[747] Later decisions follow in the same general track,[748] the
most recent one being Capitol Greyhound Lines _v._ Brice,[749] in which
the Court, speaking by Justice Black passed upon a Maryland excise tax
on the fair market value of motor vehicles used in interstate commerce
as a condition to the issuance of certificates of title as prerequisites
to the registration and operation of motor vehicles in the State.
Because the tax was applied to vehicles used in both interstate and
intrastate commerce and the proceeds were used for road purposes and
because the Court considered the tax, though actually separate, to be an
adjunct of Maryland's mileage tax, it was able to find that the total
charge varied substantially with the mileage travelled, and on that
ground sustained it, being constant, it said with "rough approximation
rather than precision," no showing having been made that Maryland's
taxes considered as a whole exceeded "fair compensation for the
privilege of using State roads." Justice Frankfurter, who was joined by
Justice Jackson, dissented, and in so doing contributed as an Appendix
to his opinion a useful analysis of decisions involving State taxation
of motor vehicles engaged in interstate commerce, for highway
purposes.[750]


Public Utilities; Regulatory Charges

"The principles governing decision [in this class of cases] have
repeatedly been announced and were not questioned below.[751] In the
exercise of its police power the State may provide for the supervision
and regulation of public utilities, such as railroads; may delegate the
duty to an officer or commission; and may exact the reasonable cost of
such supervision and regulation from the utilities concerned and
allocate the exaction amongst the members of the affected class without
violating the rule of equality imposed by the Fourteenth Amendment.[752]
The supervision and regulation of the local structures and activities of
a corporation engaged in interstate commerce, and the imposition of the
reasonable expense thereof upon such corporation, is not a burden upon,
or regulation of, interstate commerce in violation of the commerce
clause of the Constitution.[753] A law exhibiting the intent to impose a
compensatory fee for such a legitimate purpose is _prima facie_
reasonable.[754] If the exaction be so unreasonable and disproportionate
to the service as to impugn the good faith of the law[755] it cannot
stand either under the commerce clause or the Fourteenth Amendment.[756]
The State is not bound to adjust the charge after the fact, but may, in
anticipation, fix what the legislature deems to be a fair fee for the
expected service, the presumption being that if, in practice, the sum
charged appears inordinate the legislative body will reduce it in the
light of experience.[757] Such a statute may, in spite of the
presumption of validity, show on its face that some part of the exaction
is to be used for a purpose other than the legitimate one of supervision
and regulation and may, for that reason, be void.[758] And a statute
fair upon its face may be shown to be void and unenforceable on account
of its actual operation.[759] If the exaction be clearly excessive it is
bad _in toto_ and the State cannot collect any part of it."[760]


Dominance of Congress

The Supreme Court has never forgotten the lesson which was administered
it by the act of Congress of August 31, 1852,[761] which pronounced the
Wheeling Bridge "a lawful structure," thereby setting aside the Court's
determination to the contrary earlier the same year.[762] This lesson,
stated in the Court's own language thirty years later, was, "It is
Congress, and not the Judicial Department, to which the Constitution has
given the power to regulate commerce * * *."[763] A parallel to the
Wheeling Bridge episode occurred in 1945.


THE McCARRAN ACT: REGULATION OF INSURANCE

Less than a year after the ruling in United States _v._ South-Eastern
Underwriters Association[764] that insurance transactions across State
lines constituted interstate commerce, thereby logically establishing
their immunity from discriminatory State taxation, Congress passed the
McCarran Act[765] authorizing State regulation and taxation of the
insurance business; and in Prudential Insurance Co. _v._ Benjamin,[766]
a statute of South Carolina which imposed on foreign insurance
companies, as a condition of their doing business in the State, an
annual tax of three per cent of premiums from business done in South
Carolina, while imposing no similar tax on local corporations, was
sustained. "Obviously," said Justice Rutledge for the Court, "Congress'
purpose was broadly to give support to the existing and future State
systems for regulating and taxing the business of insurance. This was
done in two ways. One was by removing obstructions which might be
thought to flow from its own power, whether dormant or exercised,
except as otherwise expressly provided in the Act itself or in future
legislation. The other was by declaring expressly and affirmatively that
continued State regulation and taxation of this business is in the
public interest and that the business and all who engage in it 'shall be
subject to' the laws of the several States in these respects. * * * The
power of Congress over commerce exercised entirely without reference to
coordinated action of the States is not restricted, except as the
Constitution expressly provides, by any limitation which forbids it to
discriminate against interstate commerce and in favor of local trade.
Its plenary scope enables Congress not only to promote but also to
prohibit interstate commerce, as it has done frequently and for a great
variety of reasons. * * * This broad authority Congress may exercise
alone, subject to those limitations, or in conjunction with coordinated
action by the States, in which case limitations imposed for the
preservation of their powers become inoperative and only those designed
to forbid action altogether by any power or combination of powers in our
governmental system remain effective."[767] The generality of this
language enforces again the sweeping nature of Congress's power to
prohibit interstate commerce.[768]


The Police Power and Foreign Commerce


ORIGIN OF POLICE POWER

In Gibbons _v._ Ogden[769] cognizance was taken of the existence in the
States of an "immense mass" of legislative power to be used for the
protection of their welfare and the promotion of local interests.[770]
In Marshall's opinion in Brown _v._ Maryland[771] this power is
christened "the Police Power," a name which has since come to supply one
of the great titles of Constitutional Law. Counsel for Maryland had
argued that if the State was not permitted to _tax_ imports in the
original package before they left the hands of the importer, it would
also be unable to prevent their introduction into its midst although
they might comprise articles dangerous to the public health and safety.
"The power to direct the removal of gunpowder," the Chief Justice
answered, "is a branch of the police power, which unquestionably
remains, and ought to remain, with the States;" and the power to direct
"the removal or destruction of infectious or unsound articles" fell
within the same category.[772]


STATE CURBS ON ENTRY OF FOREIGNERS

In short, the power to tax was one thing, the police power something
quite different. To concede the former would be to concede a power which
could be exercised to any extent and at the will of its possessor;[773]
to concede the latter was to concede a power which was limited of its
own inherent nature to certain necessary objectives. In New York _v._
Miln,[774] however, the Court which came after Marshall inclined toward
the notion of a power of internal police which was also unlimited; and
on this ground upheld a New York statute which required masters of all
vessels arriving at the port of New York to make reports as to
passengers carried, and imposed fines for failure to do so. "We are of
opinion," the Court said, "that the act is not a regulation of commerce,
but of police." But, when New York, venturing a step further, passed an
act to authorize State health commissioners to collect certain fees from
captains arriving in ports of that State, and when Massachusetts enacted
a statute requiring captains of ships to give bonds as to immigrants
landed, both measures were pronounced void, either as conflicting with
treaties and laws of the United States or as invading the "exclusive"
power of Congress to regulate foreign commerce.[775] Following the Civil
War, indeed, New York _v._ Miln was flatly overruled, and a New York
statute similar to the one sustained in 1837 was pronounced void as
intruding upon Congress's powers.[776] Nothing was gained, said the
Court, by invoking "[the police power] * * *, it is clear, from the
nature of our complex form of government, that, whenever the statute of
a State invades the domain of legislation which belongs exclusively to
the Congress of the United States, it is void, no matter under what
class of powers it may fall, or how closely allied to powers conceded to
belong to the States."[777] At the same time a California statute
requiring a bond from shipowners as a condition precedent to their being
permitted to land persons whom a State commissioner of immigration might
choose to consider as coming within certain enumerated classes, e.g.,
"debauched women," was also disallowed. Said the Court: "If the right of
the States to pass statutes to protect themselves in regard to the
criminal, the pauper, and the diseased foreigner, landing within their
borders, exists at all, it is limited to such laws as are absolutely
necessary for that purpose; and this mere police regulation cannot
extend so far as to prevent or obstruct other classes of persons from
the right to hold personal and commercial intercourse with the people of
the United States."[778]


STATE QUARANTINE LAWS

On the other hand, it has been repeatedly held that the States may, in
the absence of legislation by Congress, enact quarantine laws, even
though in effect they thereby regulate foreign commerce; and furthermore
that such legislation may be, in the interest of effective enforcement,
applied beyond the mere exclusion of diseased persons. Thus in the
leading case the State of Louisiana was sustained in authorizing its
Board of Health in its discretion to prohibit the introduction into any
infected portion of the State of "persons acclimated, unacclimated or
said to be immune, when in its judgment the introduction of such persons
would add to or increase the prevalence of the disease."[779] At the
same time it was emphasized that all such legislation was subject to be
supplanted by Congress at any time.


STATE GAME PROTECTION AND FOREIGN COMMERCE

The Court's tolerance of legal provisions which might not standing alone
be constitutional, when they are designed to make legislation within the
police power practically enforceable, is also illustrated in connection
with State game laws. In the case of Silz _v._ Hesterberg[780] the Court
was confronted with a New York statute establishing a closed season for
certain game, during which season it was a penal offense to take or
possess any of the protected animals, fish or birds; and providing
farther that the ban should equally apply "to such fish, game or flesh
coming from without the State as to that taken within the State." This
provision was held to have been validly applied in the case of a dealer
in imported game who had in his possession during the closed season "one
dead body of an imported grouse, ..., and taken in Russia." Again the
absence of conflicting legislation by Congress was adverted to.[781]


The Police Power and Interstate Commerce


GENERAL PRINCIPLES

In Southern Pacific Co. _v._ Arizona,[782] decided in 1945, Chief
Justice Stone made the following systematic statement of principles
which have guided the Court in the exercise of its power of judicial
review of State legislation affecting interstate commerce: "Although the
commerce clause conferred on the national government power to regulate
commerce, its possession of the power does not exclude all state power
of regulation. Ever since Willson _v._ Black-Bird Creek Marsh Co., 2
Pet. 245, and Cooley _v._ Board of Wardens, 12 How. 299, it has been
recognized that, in the absence of conflicting legislation by Congress,
there is a residuum of power in the state to make laws governing matters
of local concern which nevertheless in some measure affect interstate
commerce or even, to some extent, regulate it.[783] Thus the states may
regulate matters which, because of their number and diversity, may never
be adequately dealt with by Congress.[784] When the regulation of
matters of local concern is local in character and effect, and its
impact on the national commerce does not seriously interfere with its
operation, and the consequent incentive to deal with them nationally is
slight, such regulation has been generally held to be within state
authority.[785]

"But ever since Gibbons _v._ Ogden, 9 Wheat. 1, the states have not been
deemed to have authority to impede substantially the free flow of
commerce from state to state, or to regulate those phases of the
national commerce which, because of the need of national uniformity,
demand that their regulation, if any, be prescribed by a single
authority.[786] Whether or not this long-recognized distribution of
power between the national and the state governments is predicated upon
the implications of the commerce clause itself,[787] or upon the
presumed intention of Congress, where Congress has not spoken,[788] the
result is the same.

"In the application of these principles some enactments may be found to
be plainly within and others plainly without state power. But between
these extremes lies the infinite variety of cases, in which regulation
of local matters may also operate as a regulation of commerce, in which
reconciliation of the conflicting claims of state and national power is
to be attained only by some appraisal and accommodation of the competing
demands of the state and national interests involved.[789]

"For a hundred years it has been accepted constitutional doctrine that
the commerce clause, without the aid of Congressional legislation, thus
affords some protection from state legislation inimical to the national
commerce, and that in such cases, where Congress has not acted, this
Court, and not the state legislature, is under the commerce clause the
final arbiter of the competing demands of state and national
interests.[790]

"Congress has undoubted power to redefine the distribution of power over
interstate commerce. It may either permit the states to regulate the
commerce in a manner which would otherwise not be permissible,[791] or
exclude state regulation even of matters of peculiarly local concern
which nevertheless affect interstate commerce.[792]

"But in general Congress has left it to the courts to formulate the
rules thus interpreting the commerce clause in its application,
doubtless because it has appreciated the destructive consequences to the
commerce of the nation if their protection were withdrawn,[793] and has
been aware that in their application state laws will not be invalidated
without the support of relevant factual material which will 'afford a
sure basis' for an informed judgment.[794] Meanwhile, Congress has
accommodated its legislation, as have the states, to these rules as an
established feature of our constitutional system. There has thus been
left to the states wide scope for the regulation of matters of local
state concern, even though it in some measure affects the commerce,
provided it does not materially restrict the free flow of commerce
across state lines, or interfere with it in matters with respect to
which uniformity of regulation is of predominant national concern."


State Regulation of Agencies of Interstate Commerce


RAILWAY RATE REGULATION

In one of the Granger Cases decided in 1877 the Court upheld the power
of the legislature of Wisconsin in the absence of legislation by
Congress, to prescribe by law the maximum charges to be made by a
railway company for fare and freight upon the transportation of persons
and property within the State, or taken up outside the State and brought
within it, or taken up inside and carried without it.[795] Ten years
later, in Wabash, St. Louis and Pacific Railway Co. _v._ Illinois[796]
this decision was reversed as to persons and property taken up within
the State and transported out of it and as to persons and property
brought into the State from outside. As to these, the Court held that
the regulation of rates and charges must be uniform and that, therefore,
the States had no power to deal with the subject even when Congress had
not acted. The following year Congress passed the Interstate Commerce
Act[797] to fill the gap created by the Wabash decision. Today, the
States still exercise the power to regulate railway rates for the
carriage of persons and property taken up and put down within their
borders, but do so subject to the rule, which is enforced by the
Interstate Commerce Commission, that such rates may not discriminate
against interstate commerce.[798]


ADEQUATE SERVICE REGULATIONS

In many other respects the power still remains with the States to
require by statute or administrative order a fair and adequate service
for their inhabitants from railway companies, including interstate
carriers operating within their borders, so long as the burdens thus
imposed upon interstate commerce are, in the judgment of the Court,
"reasonable." In an instructive brace of cases the Court was asked to
say whether a carrier, in the interest of providing proper local
facilities of commerce, could be required to stop its interstate trains.
In one case a State regulation requiring all regular passenger trains
operating wholly within the State to stop at all county seats was held
to have been validly applied to interstate connection trains;[799] while
in the other case a statute requiring _all_ passenger trains to stop at
county seats was held invalid, there being "other and ample
accommodation."[800] Comparing these and other like decisions, the Court
has stated "the applicable general doctrine" to be as follows: (1) It is
competent for a State to require adequate local facilities, even to the
stoppage of interstate trains or the rearrangement of their schedules.
(2) Such facilities existing--that is, the local conditions being
adequately met--the obligation of the railroad is performed, and the
stoppage of interstate trains becomes an improper and illegal
interference with interstate commerce. (3) And this, whether the
interference be directly by the legislature or by its command through
the orders of an administrative body. (4) The fact of local facilities
this court may determine, such fact being necessarily involved in the
determination of the Federal question whether an order concerning an
interstate train does or does not directly regulate interstate commerce,
by imposing an arbitrary requirement.[801] "There is, however," it later
added, "no inevitable test of the instances; the facts in each must be
considered."[802]

In the same way a State regulation requiring intersecting railways to
make track connections was held valid,[803] as was also a regulation
requiring equality of car service between shippers;[804] while a
regulation requiring the delivery of shipments on private sideways[805]
and one requiring cars for local shipments to be furnished on demand,
were held to be invalid.[806] In the first brace of decisions, the
application of the local regulation to interstate commerce was found
not to be "unduly" burdensome; in the second brace the contrary
conclusion was reached.


SAFETY AND OTHER REGULATIONS

A class of regulations as to which the Court has exhibited marked
tolerance although they "incidentally" embrace interstate transportation
within their operation are those which purport to be in furtherance of
"public safety."[807] The leading case is Smith _v._ Alabama,[808] in
which the Court held it to be within the police power of the State to
require locomotive engineers to be examined and licensed, and to enforce
this requirement until Congress should decree otherwise in the case of
an engineer employed exclusively in interstate transportation. Also
upheld as applicable to interstate trains were a statute which forbade
the heating of passenger cars by stoves;[809] a municipal ordinance
restricting the speed of trains within city limits;[810] the order of a
public utility commission requiring the elimination of grade
crossings;[811] a statute requiring electric headlights of a specified
minimum capacity;[812] a statute requiring three brakemen on freight
trains of over twenty-five cars.[813] In the last case the Court
admitted that "under the evidence," there was "some room for
controversy" as to whether the statute was necessary, but thought it
"not so unreasonable as to justify the Court in adjudging it" to be
"merely an arbitrary exercise of power" and "not germane" to objects
which the State was entitled to accomplish.[814] And in 1943 the Court
sustained, though again in somewhat doubtful terms, the order of a State
railroad commission requiring a terminal railroad which served both
interstate and local commerce to provide caboose cars for its
employees.[815] At times, indeed, the Court has made surprising
concession to local views that had nothing to do with safety. Hennington
_v._ Georgia,[816] decided in 1896, where was sustained a Georgia
statute forbidding freight trains to run on Sunday, is perhaps the
supreme example. Whether such an act would pass muster today is
doubtful. And earlier statutes reinforcing the legal liability of
railroads as common carriers and the carriers of passengers were
sustained in the absence of legislation by Congress.[817]


INVALID STATE REGULATIONS

"The principle that, without controlling Congressional action, a State
may not regulate interstate commerce so as substantially to affect its
flow or deprive it of needed uniformity in its regulation is not to be
avoided by 'simply invoking the convenient apologetics of the police
power.'" So remarks Chief Justice Stone in his summarizing opinion cited
above, in Southern Pacific Co. _v._ Arizona.[818] Among others he lists
the following instances in which State legislation was invalidated on
the basis of this rule: "In the Kaw Valley case[819] the Court held that
the State was without constitutional power to order a railroad to remove
a railroad bridge over which its interstate trains passed, as a means of
preventing floods in the district and of improving its drainage, because
it was 'not pretended that local welfare needs the removal of the
defendants' bridges at the expense of the dominant requirements of
commerce with other States, but merely that it would be helped by
raising them.' And in Seaboard Air Line R. Co. _v._ Blackwell,[820] it
was held that the interference with interstate rail transportation
resulting from a State statute requiring as a safety measure that trains
come almost to a stop at grade crossings, outweigh the local interest in
safety, when it appealed that compliance increased the scheduled running
time more than six hours in a distance of one hundred and twenty-three
miles."[821] And "more recently in Kelly _v._ Washington,"[822] the
Chief Justice continued, "we have pointed out that when a State goes
beyond safety measures which are permissible because only local in their
effect upon interstate commerce, and 'attempts to impose particular
standards as to structure, design, equipment and operation [of vessels
plying interstate] which in the judgment of its authorities may be
desirable but pass beyond what is plainly essential to safety and
seaworthiness, the State will encounter the principle that such
requirements, if imposed at all, must be through the action of Congress
which can establish a uniform rule. Whether the State in a particular
matter goes too far must be left to be determined when the precise
question arises.'"


STATE REGULATION OF LENGTH OF TRAINS

Applying the test of these precedents, the Chief Justice concluded that
Arizona, in making it unlawful to operate within the State a railroad
train of more than fourteen passenger or seventy freight cars, had gone
"too far"; and in support of this conclusion he recites the following
facts: "In Arizona, approximately 93% of the freight traffic and 95% of
the passenger traffic is interstate. Because of the Train Limit Law
appellant is required to haul over 30% more trains in Arizona than would
otherwise have been necessary. The record shows a definite relationship
between operating costs and the length of trains, the increase in length
resulting in a reduction of operating costs per car. The additional cost
of operation of trains complying with the Train Limit Law in Arizona
amounts for the two railroads traversing that State to about $1,000,000
a year. The reduction in train lengths also impedes efficient operation.
More locomotives and more manpower are required; the necessary
conversion and reconversion of train lengths at terminals and the delay
caused by breaking up and remaking long trains upon entering and leaving
the state in order to comply with the law, delays the traffic and
diminishes its volume moved in a given time, especially when traffic is
heavy.

"At present the seventy freight car laws are enforced only in Arizona
and Oklahoma, with a fourteen car passenger car limit in Arizona. The
record here shows that the enforcement of the Arizona statute results in
freight trains being broken up and reformed at the California border and
in New Mexico, some distance from the Arizona line. Frequently it is not
feasible to operate a newly assembled train from the New Mexico yard
nearest to Arizona, with the result that the Arizona limitation governs
the flow of traffic as far east as El Paso, Texas. For similar reasons
the Arizona law often controls the length of passenger trains all the
way from Los Angeles to El Paso.

"If one State may regulate train lengths, so may all the others, and
they need not prescribe the same maximum limitation. The practical
effect of such regulation is to control train operations beyond the
boundaries of the State exacting it because of the necessity of breaking
up and reassembling long trains at the nearest terminal points before
entering and after leaving the regulating State. The serious impediment
to the free flow of commerce by the local regulation of train lengths
and the practical necessity that such regulation, if any, must be
prescribed by a single body having a nation-wide authority are apparent.

"The trial court found that the Arizona law had no reasonable relation
to safety, and made train operation more dangerous. Examination of the
evidence and the detailed findings makes it clear that this conclusion
was rested on facts found which indicate that such increased danger of
accident and personal injury as may result from the greater length of
trains is more than offset by the increase in the number of accidents
resulting from the larger number of trains when train lengths are
reduced. In considering the effect of the statute as a safety measure,
therefore, the factor of controlling significance for present purposes
is not whether there is basis for the conclusion of the Arizona Supreme
Court that the increase in length of trains beyond the statutory maximum
has an adverse effect upon safety of operation. The decisive question is
whether in the circumstances the total effect of the law as a safety
measure in reducing accidents and casualties is so slight or
problematical as not to outweigh the national interest in keeping
interstate commerce free from interferences which seriously impede it
and subject it to local regulation which does not have a uniform effect
on the interstate train journey which it interrupts."[823]


THE LESSON OF SOUTHERN PACIFIC CO. _v._ ARIZONA

The lesson to be extracted from Southern Pacific Co. _v._ Arizona is a
threefold one: 1) Where uniformity is judged by the Court to be
"essential for the functioning of commerce, a State may not interpose
its regulation"; 2) in resolving this question the Court will canvass
what it considers to be relevant facts extensively; 3) its task is,
however, in the last analysis, one of weighing competing values, in
brief, arbitral rather than strictly judicial.

The lesson of Southern Pacific is further exemplified by the more recent
holding in Morgan _v._ Virginia,[824] in which the Court was confronted
with a State statute which, in providing for the segregation of white
and colored passengers, required passengers to change seats from time to
time as might become necessary to increase the number of seats available
to the one race or the other. First, reciting the rule of uniformity,
Justice Heed, for the Court, said: "Congress, within the limits of the
Fifth Amendment, has authority to burden [interstate] commerce if that
seems to it a desirable means of accomplishing a permitted end. * * *
As no State law can reach beyond its own border nor bar transportation
of passengers across its boundaries, diverse seating requirements for
the races in interstate journeys result. As there is no federal act
dealing with the separation of races in interstate transportation, we
must decide the validity of this Virginia statute on the challenge that
it interferes with commerce, as a matter of balance between the exercise
of the local police power and the need for national uniformity in the
regulations for interstate travel. It seems clear to us that seating
arrangements for the different races in interstate motor travel require
a single, uniform rule to promote and protect national travel.
Consequently, we hold the Virginia statute in controversy invalid."


STATE REGULATION OF MOTOR VEHICLES; VALID REGULATIONS

Cases arising under this caption further illustrate the competition for
judicial recognition between the interstate commerce interest and local
interests, especially that of public safety. A new element enters the
problem, however, which lends some added weight to the claims of the
police power, the fact, namely, that motor vehicles use highways
furnished and maintained by the State.

A State is entitled to enact a comprehensive scheme for the licensing
and regulation of motor vehicles using its highways with a view to
insuring itself of reasonable compensation for the facilities afforded
and to providing adequate protection of the public safety; and such
scheme may embrace out-of-State vehicles using the State's
highways.[825] Thus legislation limiting the net loads of trucks using
the State's highways is valid;[826] as are also, in the absence of
national legislation on the subject, State regulations limiting the
weight and width of the vehicles themselves, provided such regulations
are applied without discrimination as between vehicles moving in
interstate commerce and those operating only intrastate.[827] Likewise,
a State may deny a certificate of public convenience and necessity to
one desiring to operate a common carrier over a particular highway to an
out-of-State destination in an adjacent State, on the ground that the
specified route is already congested. So it was held in Bradley _v._
Public Utilities Commission of Ohio,[828] in which the Court took
cognizance of the full hearing accorded the appellant, and of his
failure to choose another route, although he was at liberty to do so.
And in Maurer _v._ Hamilton a Pennsylvania[829] statute prohibiting the
operation over its highways of any motor vehicle carrying any other
vehicle over the head of the operator was upheld in the absence of
conflicting Congressional legislation. Similarly, in Welch _v._ New
Hampshire[830] a statute of that State establishing maximum hours for
drivers of motor vehicles was held not to be superseded by the Federal
Motor Carrier Act prior to the effective date of regulations by the
Interstate Commerce Commission dealing with the subject. Nor was
pendency before the Interstate Commerce Commission of an application
under the Motor Carrier Act for a license to operate a motor carrier in
interstate commerce found to supersede as to the applicant the authority
of a State to enforce "reasonable regulations" of traffic upon its
highways. "In the absence of the exercise of federal authority," said
the Court, "and in the light of local exigencies, the State is free to
act in order to protect its legitimate interests even though interstate
commerce is directly affected."[831] And for the same reason New York
City was entitled to apply to trucks engaged in the delivery of goods
from New Jersey a traffic regulation forbidding the operation on the
streets of an advertising vehicle.[832] Said Justice Douglas for the
Court: "Many of these trucks are engaged in delivering goods in
interstate commerce from New Jersey to New York. Where traffic control
and the use of highways are involved and where there is no conflicting
federal regulation, great leeway is allowed local authorities, even
though the local regulation materially interferes with interstate
commerce."[833] Also, the Court has consistently sustained State
regulations requiring motor carriers to provide adequate insurance
protection for injuries caused by the negligent operation of their
vehicles.[834]


INVALID STATE ACTS AFFECTING MOTOR CARRIERS

A State law which imposes upon all persons engaged in transporting for
hire by motor vehicle over the public highways of the State the burdens
and duties of common carriers and requires them to furnish bonds to
secure the payment of claims and liabilities resulting from injury to
property carried, may not be validly applied to a private carrier which
is engaged exclusively in hauling from one State to another State the
goods of particular factories under standing contracts with their
owners, the said carrier enjoying neither a special franchise nor using
the eminent domain power.[835] On the other hand, a State statute which
prohibits common carriers for hire from using the highways of the State
between fixed termini or over regular routes without having first
obtained from a director of public works a certificate of public
convenience, is primarily not a regulation to secure safety on the
highways or to conserve them, but a ban on competition and, as applied
to a common carrier by motor vehicle of passengers and express purely in
interstate commerce, is both violation of the Commerce Clause and
defeats the express purpose of Congressional legislation rendering
federal aid for the construction of interstate highways.[836]


TRANSPORTATION AGENCIES

The special characteristics of motor travel have brought about a
reversal of the Court's attitude toward State control of transportation
agencies. Sustaining in 1941 a California statute requiring that agents
engaged in negotiating for the transportation of passengers in motor
vehicles over the highways of the State take out a license, Justice
(later Chief Justice) Stone, speaking for the Court, said: "In Di Santo
_v._ Pennsylvania,[837] this Court took a different view * * *, it held
that a Pennsylvania statute requiring others than railroad or steamship
companies, who engage in the intrastate sale of steamship tickets or of
orders for transportation to and from foreign countries, to procure a
license by giving proof of good moral character and filing a bond as
security against fraud and misrepresentation to purchasers, was an
infringement of the Commerce Clause. Since the decision in that case
this Court has been repeatedly called upon to examine the
constitutionality of numerous local regulations affecting interstate
motor vehicle traffic. It has uniformly held that in the absence of
pertinent Congressional legislation there is constitutional power in the
States to regulate interstate commerce by motor vehicle wherever it
affects the safety of the public or the safety and convenient use of its
highways, provided only that the regulation does not in any other
respect unnecessarily obstruct interstate commerce."[838]


NAVIGATION; GENERAL DOCTRINE

In Gibbons _v._ Ogden[839] the Court, speaking by Chief Justice
Marshall, held that New York legislation which excluded from the
navigable waters of that State steam vessels enrolled and licensed
under an act of Congress to engage in the coasting trade was in conflict
with the act of Congress and hence void. In Willson _v._ Blackbird Creek
and Marsh Co.[840] the same Court held that in the absence of an act of
Congress, "the object of which was to control State legislation over
those small navigable creeks into which the tide flows," the State of
Delaware was entitled to incorporate a company vested with the right to
erect a dam across such a creek. From these two cases the Court in
Cooley _v._ the Board of Wardens,[841] decided in 1851, extracted the
rule that in the absence of conflicting legislation by Congress States
were entitled to enact legislation adapted to the local needs of
interstate and foreign commerce, that a pilotage law was of this
description, and was, accordingly, constitutionally applicable until
Congress acted to the contrary to vessels engaged in the coasting trade.
In the main, these three holdings have controlled the decision of cases
under the above and the following caption, there being generally no
applicable act of Congress involved. But the power which the rule
attributed to the States, they must use "reasonably," something they
have not always done in the judgment of the Court.

Thus an Alabama statute which required that owners of vessels using the
public waters of the enacting State be enrolled, pay fees, file
statements as to ownership, etc., was held to be inapplicable to vessels
licensed under the act of Congress to engage in the coasting trade;[842]
as was also a Louisiana statute ordering masters and wardens of the port
of Orleans to survey the hatches of all vessels arriving there and to
enact a fee for so doing.[843] "The unreason and the oppressive
character of the act" was held to take it out of the class of local
legislation protected by the rule of the Cooley case.[844] Likewise,
while control by a State of navigable waters wholly within its borders
has been often asserted to be complete in the absence of regulation by
Congress,[845] Congress may assume control at any time;[846] and when
such waters connect with other similar waters "so as to form a waterway
to other States or foreign nations, [they] cannot be obstructed or
impeded so as to impair, defeat, or place any burden upon a right to
their navigation granted by Congress."[847]

On the other hand, in Kelly _v._ Washington,[848] decided in 1937, the
Court sustained the State in applying to motor-driven tugs operating in
navigable waters of the United States legislation which provided for the
inspection and regulation of every vessel operated by machinery if the
same was not subject to inspection under the laws of the United States.
It was conceded that there was "elaborate" federal legislation in the
field, but it was asserted that the Washington statute filled a gap.
"The principle is thoroughly established," said Chief Justice Hughes for
the Court, "that the exercise by the State of its police power, which
would be valid if not superseded by federal action, is superseded only
where the repugnance or conflict is so 'direct and positive' that the
two acts cannot 'be reconciled or consistently stand together.'"[849]
And in Bob-Lo Excursion Co. _v._ Michigan,[850] the Court, elbowing
aside a decision of many years standing,[851] ruled that the commerce
clause does not preclude a State, in the absence of federal statute or
treaty, from forbidding racial discrimination by one carrying passengers
by vessel to and from a port in the United States to an island situated
in Canadian territory.


BRIDGES, DAMS, FERRIES, WHARVES

The holding in Willson _v._ Blackbird Creek Marsh Co.[852] has been
invoked by the Court many times in support of State legislation
permitting the construction across navigable streams of dams, booms, and
other shore protections,[853] as well as in support of State legislation
authorizing the erection of bridges and the operation of ferries across
such streams.[854] Bridges, it is true, may obstruct some commerce, but
they may more than compensate for this by aiding other commerce.[855] In
Justice Field's words in Huse _v._ Glover,[856] it should not be
forgotten that: "the State is interested in the domestic as well as in
the interstate and foreign commerce conducted on the Illinois River, and
to increase its facilities, and thus augment its growth, it has full
power. It is only when, in the judgment of Congress, its action is
deemed to encroach upon the navigation of the river as a means of
interstate and foreign Commerce, that that body may interfere and
control or supersede it. * * * How the highways of a State, whether on
land or by water, shall be best improved for the public good is a matter
for State determination, subject always to the right of Congress to
interpose in the cases mentioned."[857] The same principle applies to
the construction of piers and wharves in a navigable stream,[858] as
well as to harbor improvements by a State for the aid and protection of
navigation;[859] and reasonable tolls may be charged for the use of
such aids, and reasonable regulations laid down governing their
employment.[860]


Ferries

A State may license individuals to operate a ferry across an interstate
river bounding its territory, or may incorporate a company for the
purpose.[861] Nor may a neighbor State make the securing of its consent
and license a condition precedent to the operation of such a ferry to
one of its towns.[862] Earlier the right of a State to regulate the
rates to be charged by an interstate bridge company for passage across
its structure was denied by a closely divided Court.[863] The ruling
does not, however, control the regulation of rates to be charged by an
interstate ferry company. These the chartering State may, in the absence
of action by Congress, regulate except in the case of ferries operated
in connection with railroads,[864] as to which Congress has acted with
the result of excluding all State action.[865] A State may also regulate
the rates of a vessel plying between two points within the State
although the journey is over the high seas; although again action by
Congress may supersede State action at any time.[866]


TELEGRAPHS AND TELEPHONES

An Indiana statute which required telegraph companies to deliver
dispatches by messenger to the persons to whom they were addressed if
the latter resided within one mile of the telegraph station or within
the city or town where it was located, and which prescribed the order of
preference to be given various kinds of messages, was held to be an
unconstitutional interference with interstate commerce;[867] as was also
the order of the Massachusetts Public Service Commission interfering
with the transmission to firms within the State's borders of continuous
quotations of the New York Stock Exchange by means of ticker
service.[868] But a Virginia statute which imposed a penalty on a
telegraph company for failure in its "clear common-law duty" of
transmitting messages without unreasonable delay, was held, in the
absence of legislation by Congress, to be valid;[869] as was also a
Michigan statute which prohibited the stipulation by a company against
liability for nonperformance of such duty.[870] However, a South
Carolina statute which sought to make mental anguish caused by the
negligent nondelivery of a telegram a cause of action, was held to be,
as applied to messages transmitted from one State to another or to the
District of Columbia, an unconstitutional attempt to regulate interstate
commerce.[871] A State has no authority to interfere with the operation
of the lines of telegraph companies constructed along postal routes
within its borders under the authority of the Post Road Act of
1866,[872] nor to exclude altogether a company proposing to take
advantage of the act;[873] but that act does not deprive the State or a
municipality of the right to subject telegraph companies to reasonable
regulations, and an ordinance regulating the erection and use of poles
and wires in the streets does not interfere with the exercise of
authority under that act.[874] The jurisdiction conferred by The
Transportation Act of 1920 upon the Interstate Commerce Commission, and
since transferred to the Federal Communications Commission, over
accounts and depreciation rates of telephone companies does not, in the
absence of exercise by the federal agency of its power, operate to
curtail the analogous State authority;[875] nor is an unconstitutional
burden laid upon interstate commerce by the action of a State agency in
requiring a telephone company to revise its intrastate toll rates so as
to conform to rates charged for comparable distances in interstate
service.[876]


GAS AND ELECTRICITY

The business of piping natural gas from one State to another to local
distributors which sell it locally to consumers is a branch of
interstate commerce which a State may not regulate.[877] Likewise, an
order by a State commission fixing rates on electric current generated
within the States and sold to a distributor in another State, imposes an
unconstitutional burden on interstate commerce, although the regulation
of such rates would necessarily benefit local consumers of electricity
furnished by the same company.[878] In the absence, on the other hand,
of contrary regulation by Congress a State may regulate the sale to
consumers in its cities of natural gas produced in and transmitted from
another State;[879] nor did Congress, by the National Gas Act of 1938,
impose any such contrary regulation.[880] Likewise, a State is left free
by the same act to require a gas company engaged in interstate commerce
to obtain a certificate of convenience before selling directly to
customers in the State.[881] And where a pipe line is used to distribute
both gas that is brought in from without the State and gas that is
produced and used within the State, and the two are commingled, but
their proportionate quantities are known, an order by the State
commission directing the gas company to continue supplying gas from the
line to a certain community does not burden interstate commerce.[882]
The transportation of natural gas from sources outside the State to
local consumers in its municipalities ceases to be interstate commerce
at the point where it passes from a pressure producing station into
local distributing stations, and from that point is subject to State
regulation.[883] A State public utilities commission is entitled to
require a natural gas distributing company seeking an increase of rates
to show the fairness and reasonableness of the rate paid by it to the
pipe line company from which it obtains its supplies, both companies
being subsidiaries of a third.[884] A State agency may require a company
which sells natural gas to local consumers and distributing companies,
transporting it in pipe lines from other States, to file contracts,
agreements, etc., for sales and deliveries to the distributing
companies;[885] nor does the fact that a natural gas pipe line from the
place of production to the distributing points in the same State cuts
across a corner of another State render it improper, in determining
maximum rates for gas sold by the owner of the pipe line to distributing
companies, to include the value of the total line in the rate base.[886]
A State may, as a conservation measure, fix the minimum prices at the
wellhead on natural gas produced in the State and sold interstate.[887]


FOREIGN CORPORATIONS

A State may require that a foreign corporation as a condition of its
being admitted to do a local business or to having access to its courts
obtain a license, and in connection therewith furnish information as to
its home State or country, the location of its principal office, the
names of its officers and directors, its authorized capitalization, and
the like, and that it pay a reasonable license fee;[888] nor is a
corporation licensed by the National Government to act as a customs
broker thereby relieved from meeting such conditions.[889] So it was
decided in 1944. The holding does not necessarily disturb one made
thirty years earlier in which the Court ruled that a statute which
closed the courts of the enacting State to any action on any contract in
the State by a foreign corporation unless it had previously appointed a
resident agent to accept process, could not be constitutionally applied
to the right of a foreign corporation to sue on an interstate
transaction.[890] A suit brought in a State court by a foreign
corporation having its principal place of business in the State against
another foreign corporation engaged in interstate commerce on a cause of
action arising outside the State does not impose an undue burden on such
commerce; and the forum being in other respects appropriate, its
jurisdiction is not forfeited because the property attached is an
instrumentality of interstate commerce.[891] There is nothing in the
commerce clause which immunizes a foreign corporation doing business in
a State from any fair inquiry, judicial or legislative, that is required
by local laws.[892]


MISCELLANEOUS


Banks and Banking

A State statute which forbids individuals or partnerships to engage in
the banking business without a license is not, as to one whose business
chiefly consists in receiving deposits for periodic shipment to other
States and to foreign countries, invalid as a regulation of interstate
and foreign commerce.[893]


Brokers

A statute which requires dealers in securities evidencing title or
interest in property to obtain a license from a State officer, is not
invalid as applied to dispositions within the State securities
transported from other States.[894]


Commission Men

A statute requiring commission merchants to give bonds for the
protection of consignees may be validly applied to commission merchants
handling produce shipped to them from without the State.[895]


Attachment and Garnishment

Railway cars are not exempt from attachment under State laws, although
they may have been or are intended to be used in interstate
commerce.[896]


Statutory Liens

A State statute which gives a lien upon all vessels whether domestic or
foreign, and whether engaged in interstate commerce or not, for injuries
to persons and property within the State, does not as applied to
nonmaritime torts offend the commerce clause, there being no act of
Congress in conflict.[897] Nor can the enforcement of a lien for
materials used in the construction of a vessel be avoided because the
vessel is engaged in interstate commerce.[898]


The Police Power and the Subject-Matter of Commerce


SCOPE OF THE POLICE POWER

"Quarantine regulations are essential measures of protection which the
States are free to adopt when they do not come into conflict with
Federal action. In view of the need of conforming such measures to local
conditions, Congress from the beginning has been content to leave the
matter for the most part, notwithstanding its vast importance, to the
States and has repeatedly acquiesced in the enforcement of State laws.
* * * Such laws undoubtedly operate upon interstate and foreign
commerce. They could not be effective otherwise. They cannot, of course,
be made the cover for discriminations and arbitrary enactments having no
reasonable relation to health * * *; but the power of the State to take
steps to prevent the introduction or spread of disease, although
interstate and foreign commerce are involved (subject to the paramount
authority of Congress if it decides to assume control), is beyond
question.[899] * * * State inspection laws and statutes designed to
safeguard the inhabitants of a State from fraud and imposition are valid
when reasonable in their requirements and not in conflict with Federal
rules, although they may affect interstate commerce in their relation to
articles prepared for export or by including incidentally those brought
into the State and held for sale in the original imported
packages."[900]


QUARANTINE LAWS

In two earlier cases a Missouri statute which prohibited the driving of
all Texan, Mexican, and Indian cattle into the state during certain
seasons of the year was held void;[901] while a statute making anybody
in the State who had Texas cattle which had not wintered north of a
certain line liable for damage through the communication of disease from
these to other cattle was sustained;[902] as were also the regulations
of a sanitary commission which excluded all cattle, horses, and mules,
from the State at a certain period when anthrax was prevalent.[903]
Reviewing previous cases in the one last cited, the Court declared their
controlling principle to be simply whether the police power of the State
had been exerted to exclude "_beyond what is necessary for any proper
quarantine_," a question predominantly of fact, and one therefore to be
determined for each case with only general guidance from earlier
decisions.[904]

More recent cases conform to the same pattern. Among measures sustained
are the following: an Ohio statute forbidding the sale in that State of
condensed milk unless made from unadulterated milk;[905] a New York
statute penalizing the sale with intent to defraud of preparations
falsely represented to be Kosher;[906] a New York statute requiring that
cattle shall not be imported for dairy or breeding purposes unless
accompanied by the certificate of a proper sanitary official in the
State of origin, in order to prevent the spread of an infectious
disease;[907] an order of a State Department of Agriculture, pursuant
to a State law, regulating the standards of containers in which
agricultural products (berries) may be marketed within the State;[908] a
State statute restricting the processing of fish found within the waters
of the State with the purpose of conserving it for food, even though it
also operates upon fish brought into the State from without;[909] the
price fixing and licensing provisions of a State Milk and Cream Act, not
applicable to transactions in interstate commerce, by declaration of the
act;[910] a Maine statute requiring the registration with the State
Health Department of cosmetic preparations for the purpose of
ascertaining whether the products are harmless;[911] an Indiana Animals
Disposal Act requiring that animal carcasses, not promptly disposed of
by the owner, be delivered to the representative of a disposal plant
licensed by the State, and prohibiting their transportation on the
public highways for any other purpose;[912] a Pennsylvania statute
providing for the licensing and bonding of all milk dealers and fixing a
minimum price to be paid producers, as applied to a dealer purchasing
milk within the State for shipment to points outside it.[913]


STATE INSPECTION LAWS

The application of State inspection laws to imports from outside the
State has been sustained as warranted by local interests and as not
discriminating against out-of-state products, in the following
instances: A North Carolina statute providing that "every bag, barrel,
or other package" of commercial fertilizer offered for sale in the State
should bear a label truly describing its chemical composition, which
must comply with certain requirements, and charging 25 cents per ton to
meet the cost of inspection;[914] an Indiana statute forbidding the sale
in the original package of concentrated feeding stuffs prior to
inspection and analysis for the purpose of ascertaining whether certain
minimum standards as to composition had been met;[915] a Minnesota
statute requiring as a precondition of its being offered for sale in the
State, the inspection of illuminating oil and gasoline;[916] a Kansas
statute forbidding any moving picture film or reel to be exhibited in
the State unless it had been examined by the State Superintendent of
Instruction and certified by him as moral and instructive and not
tending to debase or corrupt the morals.[917] A Minnesota statute, on
the other hand, which forbade the sale in any city of the State of any
beef, mutton, lamb, or pork which, had not been inspected on the hoof
by local inspectors within twenty-four hours of slaughter, was held
void.[918] Its "necessary operation," said the Court, was to ban from
the State wholesome and properly inspected meat from other States.[919]
Also a Virginia statute which required the inspection and labelling of
all flour brought into the State for sale was disallowed because flour
produced in the State was not subject to inspection;[920] likewise a
Florida statute providing for the inspection of all cement imported into
the State and enacting a fee therefor, but making no provision for the
inspection of the local product, met a like fate;[921] as did also a
Madison, Wisconsin ordinance which sought to exclude a foreign
corporation from selling milk in that city solely because its
pasteurization plants were more than five miles away.[922]


STATE PROHIBITION LAWS; THE ORIGINAL PACKAGE DOCTRINE

The original package doctrine made its debut in Brown _v._
Maryland,[923] where it was applied to remove imports from abroad which
were still in the hands of the importer in the original package, out of
the reach of the State's taxing power. This rule the Court, overriding a
dictum in Marshall's opinion in Brown _v._ Maryland,[924] rejected
outright after the Civil War as to imports from sister States.[925]
However, when in the late eighties and early nineties State-wide
Prohibition laws began making their appearance, the Court seized on the
rejected dictum and began applying it as a brake on the operation of
such laws with respect to interstate commerce in intoxicants, which the
Court denominated "legitimate articles of commerce." While holding that
a State was entitled to prohibit the manufacture and sale within its
limits of intoxicants,[926] even for an outside market--manufacture
being no part of commerce[927]--it contemporaneously laid down the rule,
in Bowman _v._ Chicago and Northwestern Railroad Co.,[928] that so long
as Congress remained silent in the matter, a State lacked the power,
even as part and parcel of a program of Statewide prohibition of the
traffic in intoxicants, to prevent the shipment into it of intoxicants
from a sister State; and this holding was soon followed by another to
the effect that, so long as Congress remained silent, a State had no
power to prevent the sale in the original package of liquors introduced
from another State.[929] The effect of the latter decision was soon
overcome by an act of Congress, the so-called Wilson Act, repealing its
alleged silence,[930] but the Bowman decision still stood, the act in
question being interpreted by the Court not to subject liquors from
sister States to local authority until their arrival in the hands of the
person to whom consigned.[931] Not till 1913 was the effect of the
decision in the Bowman case fully nullified by the Webb-Kenyon Act,[932]
which placed intoxicants entering a State from another State under the
control of the former for all purposes whatsoever.


OLEOMARGARINE AND CIGARETTES

Long before this the immunity temporarily conferred by the original
package doctrine upon liquors had been extended to cigarettes[933] and,
with an instructive exception, to oleomargarine. The exception referred
to was made in Plumley _v._ Massachusetts,[934] where the Court held
that a statute of that State forbidding the sale of oleomargarine
colored to look like butter could validly be applied to oleomargarine
brought from another State and still in the original package. The
justification of the statute to the Court's mind was that it sought "to
suppress false pretenses and promote fair dealing in the sale of an
article of food." Nor did Leisy and Co. _v._ Hardin[935] apply, said
Justice Harlan for the Court, because the beer in that case was "genuine
beer, and not a liquid or drink colored artificially so as to cause it
to look like beer." That decision was never intended, he continued, to
hold that "a State is powerless to prevent the sale of articles
manufactured in or brought from another State, and subjects of traffic
and commerce, if their sale may cheat the people into purchasing
something they do not intend to buy * * *."[936] Obviously, the argument
was conclusive only on the assumption that a State has a better right to
prevent frauds than it has to prevent drunkenness and like evils; and
doubtless that is the way the Court felt about the matter at that date.
On the one hand, the liquor traffic was a very ancient, if not an
altogether, venerable institution, while oleomargarine was then a
relatively novel article of commerce whose wholesomeness was suspect. On
the other hand, laws designed to secure fair dealing and condemnatory of
fraud followed closely the track of the common law, while anti-liquor
laws most decidedly did not. The real differentiation of the two cases
had to be sought in historical grounds. Yet the State must not put
unreasonable burdens upon interstate commerce even in oleomargarine.
Thus a Pennsylvania statute forbidding the sale of this product even in
the unadulterated condition was pronounced invalid so far as it operated
to prevent the introduction of such oleomargarine from another State and
its sale in the original package;[937] as was also a New Hampshire
statute which required that all oleomargarine marketed in the State be
colored pink.[938] A little later in the case above mentioned involving
cigarettes, the Court discovered some of the difficulties of the
original package doctrine when applied to interstate commerce, in which
the package is not so apt to be standardized as it is in foreign
commerce.[939]


DEMISE OF THE ORIGINAL PACKAGE DOCTRINE

What importance has the original package doctrine today as a restraint
on State legislation affecting interstate commerce? The answer is, very
little, if any. State laws prohibiting the importation of intoxicating
liquor, have since the passage of the Twenty-first Amendment
consistently been upheld, even when imposing a burden on interstate
commerce or discriminating against liquor imported from another
State.[940] Indeed the Court has, without appealing to the Twenty-first
Amendment, even gone so far as to uphold a statute requiring a permit
for transportation of liquor through the enacting State.[941] In
Whitfield _v._ Ohio,[942] moreover, the Court upheld a State law
prohibiting the sale in open market of convict-made goods including
sales of goods imported from other States and still in the original
package. While the decision is based on the Hawes-Cooper Act of
1929,[943] which follows the pattern of the Webb-Kenyon Act, Justice
Sutherland speaking for the Court, takes pains to disparage the
"unbroken-package doctrine, as applied to interstate commerce, * * *, as
more artificial than sound."[944] Indeed, earlier cases make it clear
that the enforcement of State quarantine and inspection acts, otherwise
constitutional, is not to be impeded by the doctrine in any way.[945]


CURBS ON THE INTERSTATE MOVEMENT OF PERSONS

Prior to the Civil War the slaveholding States, ever fearful of a slave
uprising, adopted legislation meant to exclude from their borders free
Negroes whether hailing from abroad or from sister States, and in 1823 a
South Carolina Negro Seamen's Act embodying this objective was held void
by Justice William Johnson, himself a South Carolinian, in a case
arising in the Carolina circuit and involving a colored British
sailor.[946] The basis of the ruling, which created tremendous uproar in
Charleston,[947] was the commerce clause and certain treaties of the
United States. There followed two rulings of Attorneys General, the
earlier by Attorney General Wirt, denouncing such legislation as
unconstitutional;[948] the latter by Attorney General Berrien,
sustaining it;[949] and in City of New York _v._ Miln[950] the Court,
speaking by Justice Barbour of Virginia, asserted, six years after Nat
Turner's rebellion, the power of the States to exclude undesirables in
sweeping terms, which in the Passenger Cases,[951] decided in 1840, a
narrowly divided Court considerably qualified. Shortly after the Civil
War the Court overturned a Nevada statute which sought to halt the
further loss of population by a special tax on railroads on every
passenger carried out of the State.[952] This time only two Justices
invoked the commerce clause; the majority, speaking by Justice Miller
held the measure to be an unconstitutional interference with a right of
national citizenship--a holding today translatable, in the terminology
of the Fourteenth Amendment, as an abridgment of a privilege or immunity
of citizens of the United States.

Against this background the Court in 1941, in Edwards _v._
California,[953] held void a statute which penalized the bringing into
that State, or the assisting to bring into it, any nonresident knowing
him to be "an indigent person." Five Justices, speaking by Justice
Byrnes, held the act to be even as to "persons who are presently
destitute of property and without resources to obtain the necessities of
life, and who have no relatives or friends able and willing to support
them,"[954] an unconstitutional interference with interstate commerce.
"The State asserts," Justice Byrnes recites, "that the huge influx of
migrants into California in recent years has resulted in problems of
health, morals, and especially finance, the proportions of which are
staggering. It is not for us to say that this is not true. We have
repeatedly and recently affirmed, and we now reaffirm, that we do not
conceive it our function to pass upon 'the wisdom, need, or
appropriateness' of the legislative efforts of the States to solve such
difficulties. * * * But this does not mean that there are no boundaries
to the permissible area of State legislative activity. There are. And
none is more certain than the prohibition against attempts on the part
of any single State to isolate itself from difficulties common to all of
them by restraining the transportation of persons and property across
its borders. It is frequently the case that a State might gain a
momentary respite from the pressure of events by the simple expedient of
shutting its gates to the outside world. But, in the words of Mr.
Justice Cardozo: 'The Constitution was framed under the dominion of a
political philosophy less parochial in range. It was framed upon the
theory that the peoples of the several States must sink or swim
together, and that in the long run prosperity and salvation are in union
and not division'."[955] Four of the Justices would have preferred to
rest the holding of unconstitutionality on the rights of national
citizenship under the privileges and immunities clause of Amendment
XIV.[956]


STATE CONSERVATION AND EMBARGO MEASURES

In Geer _v._ Connecticut[957] the Court sustained the right of the State
to forbid the shipment beyond its borders of game taken within the
State--this on the ground, in part, that a State has an underlying
property right to wild things found within its limits, and so is
entitled to qualify the right of individual takers thereof to any
extent it chooses; and a similar ruling was laid down in a later case as
to the prohibition by a State of the transportation out of it of water
from its important streams.[958] In Oklahoma _v._ Kansas Natural Gas
Co.,[959] however, this doctrine was held inapplicable to the case of
natural gas, on the ground: first, that "gas, when reduced to
possession, is a commodity, the individual property" of the owner; and
secondly, that "the business welfare of the State," is subordinated by
the commerce clause to that of the nation as a whole. If the States had
the power asserted in the Oklahoma statute, said Justice McKenna, "a
singular situation might result. Pennsylvania might keep its coal, the
Northwest its timber, the mining States their minerals. And why may not
the products of the field be brought within the principle? * * * And yet
we have said that 'in matters of foreign and interstate commerce there
are no State lines.' In such commerce, instead of the States, a new
power appears and a new welfare, a welfare which transcends that of any
State. But rather let us say it is constituted of the welfare of all the
States and that of each State is made greater by a division of its
resources, * * *, with every other State, and those of every other State
with it. This was the purpose, as it is the result, of the interstate
commerce clause of the Constitution of the United States."[960] In
Pennsylvania _v._ West Virginia[961] the same doctrine was enforced in
disallowance of a West Virginia statute whereby that State sought to
require that a preference be accorded local consumers of gas produced
within the State. West Virginia's argument that the supply of gas within
the State was waning and no longer sufficed for both the local and the
interstate markets, and that therefore the statute was a legitimate
measure of conservation in the interest of the people of the State, was
answered in the words just quoted.

In the above cases the State prohibition overturned was directed
specifically to shipments beyond the State. In two other cases the State
enactments involved reached all commerce, both domestic and interstate
without discrimination. In the first of these, Sligh _v._ Kirkwood,[962]
the Court upheld the application to oranges which were intended for the
interstate market of a Florida statute prohibiting the sale, shipment,
or delivery for shipment of any citrus fruits which were immature or
otherwise unfit for consumption. The burden thus imposed upon interstate
commerce was held by the Court to be incidental merely to the effective
enforcement of a measure intended to safeguard the health of the people
of Florida. Moreover, said the Court, "we may take judicial notice of
the fact that the raising of citrus fruits is one of the great
industries of the State of Florida. It was competent for the
legislature to find that it was essential for the success of that
industry that its reputation be preserved in other States wherein such
fruits find their most extensive market."[963] In Lemke _v._ Farmers
Grain Co.,[964] on the other hand, a North Dakota statute which confined
the purchase of grain within that State to those holding licenses from
the State and which regulated prices, was pronounced void under the
commerce clause. To the argument that such legislation was "in the
interest of the grain growers and essential to protect them from
fraudulent purchases, and to secure payment to them of fair prices for
the grain actually sold," the Court answered that, "Congress is amply
authorized to pass measures to protect interstate commerce if
legislation of that character is needed."

The differentiation of the above two cases is twofold. The statute under
review in the earlier one was of the ordinary type of inspection law and
was applied without discrimination to fruits designed for the home and
the interstate market. The North Dakota act was far more drastic,
approximating an attempt on the part of the State to license interstate
commerce. What is even more important, however, the later case
represents a new rule of law, and one which at the time the Florida act
was before the Court had not yet been heard of. This is embodied in the
head note of the case in the following words: "The business of buying
grain in North Dakota, practically all of which is intended for shipment
to, and sale at, terminal markets in other States, conformably to the
usual and general course of business in the grain trade, is interstate
commerce."[965] The application of this rule in the field of state
taxation was mentioned on a previous page.[966]


STATE CONSERVATION AND EMBARGO MEASURES: THE MILK CASES

Certain recent cases have had to deal with State regulation of the milk
business. In Nebbia _v._ New York,[967] decided in 1934, that State's
law regulating the price of milk was sustained by the Court against
objections based on the due process clause of Amendment XIV. A year
later, in Baldwin _v._ Seelig[968] the refusal of a license under the
same act to a dealer who had procured his milk at a lower minimum price
than producers were guaranteed in New York, was set aside as an
unconstitutional interference with interstate commerce. However, a
Pennsylvania statute requiring dealers to obtain licenses was sustained
as to one who procured milk from neighboring farms and shipped it all
into a neighboring State for sale.[969] The purpose of the act,
explained Justice Roberts, was to control "a domestic situation in the
interest of the welfare of the producers and consumers," and its
application to the kind of case before the Court was essential to its
effective enforcement and affected interstate commerce only
incidentally.[970] But when a distributor of milk in Massachusetts, who
already had two milk stations in Eastern New York, was refused a license
for a third on the ground, among others, that the further diversion of
milk to Massachusetts would deprive the local market of a supply needed
during the short season, a narrowly divided Court interposed its veto on
the basis of Oklahoma _v._ Kansas Natural Gas Co.[971]


STATE CONSERVATION AND EMBARGO MEASURES: THE SHRIMP CASES

Meantime, Geer _v._ Connecticut has been somewhat overcast by subsequent
rulings. In a case, decided in 1928, it was held that a Louisiana
statute which permitted the shipment of shrimp taken in the tidal waters
of Louisiana marshes only if the heads and hulls have been previously
removed was unconstitutional.[972] Distinguishing Geer _v._ Connecticut
the Court said: "As the representative of its people, the State might
have retained the shrimp for [local] consumption and use therein." But
the object of the Louisiana statute was in direct opposition to the
conservation of a local food supply. Its object was to favor the canning
of shrimp for the interstate market. "* * * by permitting its shrimp to
be taken and all the products thereof to be shipped and sold in
interstate commerce, the State necessarily releases its hold and, as to
the shrimp so taken, definitely terminates its control. * * * And those
taking the shrimp under the authority of the act necessarily thereby
become entitled to the rights of private ownership and the protection of
the commerce clause."[973] On the same reasoning a South Carolina
statute which required that owners of shrimp boats, fishing in the
marine waters off the coast of the State, dock at a State port and
unload, pack and stamp their catch with a tax stamp before shipping or
transporting it to another State, was pronounced void in 1948.[974]
However, a California statute which restricted the processing of fish,
both that taken in the waters of the State and that brought into the
State in a fresh condition, was found by the Court to be purely a food
conservation measure, and hence valid.[975] The application of the act
to fish brought from outside was held to be justified "by rendering
evasion of it less easy."[976]


Concurrent Federal and State Legislation


THE GENERAL ISSUE

Since the turn of the century federal legislation under the commerce
clause has penetrated more and more deeply into areas once occupied
exclusively by the police power of the States. The result has been that
State laws have come under increasingly frequent attack as being
incompatible with acts of Congress operating in the same general field.
The Court's decisions resolving such alleged conflicts fall into three
groups: _first_, those which follow Webster's theory, advanced in
Gibbons _v._ Ogden, that when Congress acts upon a particular phase of
interstate commerce, it designs to appropriate the entire field with the
result that no room is left for supplementary State action; _second_,
those in which, in the absence of conflict between specific provisions
of the State and Congressional measures involved, the opposite result is
reached; _third_, those in which the State legislation involved is found
to conflict with certain acts of Congress, and in which the principle of
national supremacy is invoked by the Court. Most of the earlier cases
stemming from State legislation affecting interstate railway
transportation fall in the first class; while illustrations of the
second category usually comprise legislation intended to promote the
public health and fair dealing. More recent cases are more difficult to
classify, especially as between the first and third categories.


THE HEPBURN ACT

No act ever passed by Congress was more destructive of legislation on
the State statute books than the Hepburn Act of 1906,[977] amending the
Interstate Commerce Act. Thus a State statute which, while prohibiting a
railway from giving free passes or free transportation, authorized the
issuance of transportation in payment for printing and advertising, was
found to conflict with the unqualified prohibition by Congress of free
interstate transportation.[978] Likewise, a State statute which
penalized a carrier for refusing to receive freight for transportation
whenever tendered at a regular station was found to conflict with the
Congressional provision that no carrier "shall engage or participate in
the transportation of passengers or property, as defined in this act,
unless the rates, fares, and charges upon which the same are transported
by said carrier have been filed and published in accordance with the
provisions of this act."[979] In enacting this provision, the Court
found, Congress had intended to occupy the entire field. In a third
case, it was held that the Hepburn Act had put it outside the power of a
State to regulate the delivery of cars for interstate shipments;[980]
and on the same ground, a State statute authorizing recovery of a
penalty for delay in giving notice of the arrival of freight was
disallowed;[981] as was also the similar rule of a State railroad
commission with respect to failure to deliver freight at depots and
warehouses within a stated time limit.[982] And in Adams Express Co.
_v._ Croninger[983] it was sweepingly ruled that the so-called Carmack
Amendment to the Hepburn Act, which puts the responsibility for loss of,
or injury to, cargo upon the initial carrier, had superseded all State
statutes limiting recovery for loss or injury to goods in transportation
to an agreed or declared value. Substantially contemporaneous with these
holdings were others in which the Court ruled that the federal
Employers' Liability Act of 1908, as amended in 1910;[984] the federal
Hours of Service Act (Railroads) of 1907;[985] and the federal Safety
Appliance Acts of 1893, as amended in 1903[986] superseded all State
legislation dealing with the same subjects so far as such legislation
affected interstate commerce.[987] However, the States were still able
to regulate the time and manner of payment of the employees of
railroads, including those engaged in interstate commerce,[988] Congress
having not legislated on the subject.


QUARANTINE CASES

In 1904 it was held that a New York statute prohibiting the manufacture
or sale of any adulterated food or drug, or the coloring or coating of
food whereby it is made to appear better than it really is, was not, as
applied to imported coffee, repugnant to either the commerce clause or
the Meat Inspection Act of 1890,[989] prohibiting the importation into
the United States of adulterated and unwholesome food, but as exertion
by the State of power to legislate for the protection of the health and
safety of the community and to provide against deception and fraud.[990]
And in 1912 it was held that an Indiana statute regulating the sale of
concentrated commercial feeding stuff and requiring the disclosure of
ingredients by certificate and label, and providing for inspection and
analysis, was not in conflict with the Pure Food and Drugs Act of
1906.[991] However, when Wisconsin about the same time passed an act
requiring that when certain commodities were offered for sale in that
State they should bear the label required by State law and no other, she
was informed that she could not validly apply it to articles which had
been labeled in accordance with the federal statute nor did it make any
difference that the goods in question had been removed from the
container in which they had been shipped into the State, inasmuch as
they could still be proceeded against under the act of Congress.[992]
The original package doctrine, it was added, "was not intended to limit
the right of Congress, * * *, to keep the channels of interstate
commerce free from the carriage of injurious or fraudulently branded
articles and to choose appropriate means to that end."[993] But a North
Dakota statute requiring that lard compound or substitutes, unless sold
in bulk, should be put up in pails or containers holding one, three, or
five pounds net weight, or some multiple of these numbers, was held not
to be repugnant to the Pure Food and Drugs Act.[994] On the other hand,
a decade later the Court found that the Plant Quarantine Act of 1912, as
amended in 1917,[995] had so completely occupied the field indicated by
its title that a State was left without power to prevent the importation
of plants infected by a particular disease to which the Secretary of
Agriculture's regulations did not apply.[996] Congress promptly
intervened by further amending the federal statute to permit the States
to impose quarantines in such overlooked cases.[997]


RECENT CASES SUSTAINING STATE LEGISLATION

In 1935, it was held[998] that an order of the New York Commissioner of
Agriculture prohibiting the importation of cattle for dairy or breeding
purposes unless such cattle and the herds from which they come had been
certified by the chief sanitary officer of the State of origin as being
free from Bang's disease, was not in conflict with the Cattle Contagious
Diseases Acts.[999] In 1937, it was ruled[1000] that a Georgia statute
fixing maximum charges for handling and selling leaf tobacco did not, as
applied to sales of tobacco destined for export, conflict with the
Tobacco Inspection Act.[1001] In 1942,[1002] it was held that an order
of the Wisconsin Employment Relations Board which commanded a union, its
agents, and members, to desist from mass picketing of a factory,
threatening personal injury or property damage to employees desiring to
work, obstructing the streets about the factory, and picketing the homes
of employees, was not in conflict with the National Labor Relations
Act,[1003] to which the employer was admittedly subject but which had
not been invoked. An "intention of Congress," said the Court, "to
exclude States from exerting their police power must be clearly
manifested."[1004] In 1943,[1005] the Court sustained the marketing
program for the 1940 California raisin crop, adopted pursuant to the
California Agricultural Prorate Act. Although it was conceded that the
program and act operated to eliminate competition among producers
concerning terms of sale and price as to product destined for the
interstate market, they were held not to conflict with the commerce
clause or with the Sherman Act or the Agricultural Marketing Agreement
Act.[1006] To the contrary, said Chief Justice Stone, speaking for the
unanimous court, the program "is one which it has been the policy of
Congress to aid and encourage through federal agencies" under federal
act.[1007] The case was not one, he further observed, which was to be
resolved by "mechanical test," but with the object in view of
accommodating "the competing demands of the State and national interests
involved."[1008] In 1944,[1009] the Court upheld the right of Minnesota
to exclude from its courts a firm licensed by the National Government to
carry on the business of customs broker because of its failure to comply
with a State statute requiring foreign corporations to obtain a license
to do business in the State. Speaking for the Court, Justice
Frankfurter, again disparaged "the generalities" to which certain cases
had given utterance. Actually, he asserted, "the fate of State
legislation in these cases has not been determined by these generalities
but by the weight of the circumstances and the practical and experienced
judgment in applying these generalities to the particular
instances."[1010] In cases, decided in 1947,[1011] the Court ruled that
Indiana had not violated the Natural Gas Act[1012] by attempting to
regulate the rates for natural gas sold within the State by an
interstate pipe line company to local industrial consumers; and that
Illinois was not precluded by the Commodity Exchange Act[1013] from
imposing upon grain exchanges doing business within her borders
regulations not at variance with the provisions of the act or with
regulations promulgated under it by the Secretary of Agriculture. Nor,
it was held by a bare majority of the Court in 1949, did the Motor
Carrier Act of 1935, as amended in 1942,[1014] prevent California from
prohibiting the sale or arrangement of any transportation over its
public highways if the transporting carrier has no permit from the
Interstate Commerce Commission.[1015] The opposed opinions line up most
of the cases on either side of the question.


RECENT CASES NULLIFYING STATE ACTION

On the other side of the ledger appear the following cases, decided
contemporaneously with those just reviewed: one in 1942 in which it was
held that a gas company engaged in the business of piping natural gas
from without the State of Illinois and selling it wholesale to
distributors in that State was subject to the jurisdiction of the
Federal Power Commission under the Natural Gas Act,[1016] and hence
could not be required by the Illinois Commerce Commission to extend its
facilities in the absence of a certificate of convenience from the
Federal Power Commission;[1017] one, in the same year, in which it was
held, by a sharply divided Court, that federal regulation of the
production of renovated butter under the Internal Revenue Code[1018]
prevented the State of Alabama from inspecting, seizing and detaining
stock butter from which such butter was made, some of it being intended
for interstate commerce;[1019] one in 1947 holding that the United
States Warehouse Act, as amended,[1020] must be construed as superseding
State authority to regulate licenses thereunder, and hence overruled the
stricter requirements of Illinois law dealing with such subject as rate
discrimination, the dual position of grain warehousemen storing their
own grain, the mixing of inferior grain owned by the warehousemen with
superior grain of other users of the facility, delay in loading grain,
the sacrificing or rebating of storage charges, retraining desirable
transit tonnage, utilizing preferred storage space, maintenance of
unsafe and inadequate grain elevators, inadequate and ineffectual
warehouse service, the obtaining of a license, the abandonment of
warehousing service, and the rendition of warehousing service without
filing and publishing rate schedules;[1021] one decided the same year in
which it was held that the authority of the Federal Power Commission
under the Natural Gas Act[1022] extended to and superseded State
regulatory power over sales made within a State by a natural gas
producing company to pipe line companies which transported the purchased
gas to markets in other States;[1023] one in 1948, in which a sharply
divided Court held that Michigan law governing the rights of dissenting
stockholders could not be applied to embarrass a merger agreement
between two railroad companies which had been approved by the Interstate
Commerce Commission under the Interstate Commerce Act[1024] as "just and
reasonable";[1025] and finally one decided the same year in which it was
held by a unanimous Court that the Interstate Commerce Commission may,
in approving the acquisition by a railroad corporation of one State of
railroad lines in another, relieve such corporation from being
incorporated under the laws of the latter State.[1026]


FEDERAL VERSUS STATE LABOR LAWS

One group of cases, which has caused the Court some difficulty and its
attitude in which has perhaps shifted in some measure, deals with the
question of the effect of the Wagner, and, latterly, of the Taft-Hartley
Act on State power to govern labor union activities. In a case decided
in 1945[1027] it was held that a Florida statute which required business
agents of a union operating in the State to file annual reports and pay
an annual fee of one dollar conflicted with the Wagner Act,[1028]
standing, as the Court put it, "'as an obstacle to the accomplishment
and execution of the full purposes and objectives of Congress.'"[1029]
In two cases decided in 1949, however, State legislation regulative of
labor relations was sustained. In one a "cease and desist" order of the
Wisconsin Employment Relations Board[1030] implementing the State
Employment Peace Act, which made it an unfair labor practice for an
employee to interfere with production except by leaving the premises in
an orderly manner for the purpose of going on strike, was found not to
conflict with either the Wagner or the Taft-Hartley Act,[1031] both of
which, the Court asserted, designedly left open an area for State
control. In the other,[1032] the Wisconsin board, acting under the same
statute, was held to be within its powers in labelling as "an unfair
labor practice" the discharge by an employer of an employee under a
maintenance of membership clause which had been inserted in the contract
of employment in 1943 under pressure from the National War Labor Board,
but which was contrary to provisions of the Wisconsin Act. On the other
hand, in 1950, the Court invalidated a Michigan mediation statute, and
in 1951, a Wisconsin Public Utility Anti-Strike Act, on the ground that
these matters were governed by the policies embodied in the Wagner and
Taft-Hartley Acts.[1033]


Commerce With Indian Tribes


UNITED STATES _v._ KAGAMA

Congress is given power to regulate commerce "with the Indian tribes."
Faced in 1886 with a Congressional enactment which prescribed a system
of criminal laws for Indians living on their reservations, the Court
rejected the government's argument which sought to base the act on the
commerce clause. It sustained the act, however, on the following
grounds: "From their very weakness and helplessness, so largely due to
the course of dealing of the Federal Government with them and the
treaties in which it has been promised, there arises the duty of
protection, and with it the power. This has always been recognized by
the Executive and by Congress, and by this Court, whenever the question
has arisen. * * * The power of the General Government over these
remnants of a race once powerful, now weak and diminished in numbers,
is necessary to their protection, as well as to the safety of those
among whom they dwell. It must exist in that government, because it
never has existed anywhere else, because the theatre of its exercise is
within the geographical limits of the United States, because it has
never been denied, and because it alone can enforce its laws on all the
tribes." Moreover, such power was operative within the States.[1034]

Obviously, this line of reasoning renders the commerce clause
superfluous as a source of power over the Indian tribes; and some years
earlier, in 1871, Congress had forbidden the further making of treaties
with them.[1035] However, by a characteristic judicial device the effort
has been made at times to absorb the doctrine of the Kagama case into
the commerce clause,[1036] although more commonly the Court, in
sustaining Congressional legislation, prefers to treat the commerce
clause and "the recognized relations of tribal Indians," as joint
sources of Congress's power.[1037] Most of the cases have arisen, in
fact, in connection with efforts by Congress to ban the traffic in "fire
water" with tribal Indians. In this connection it has been held that
even though an Indian has become a citizen, yet so long as he remains a
member of his tribe, under the charge of an Indian agent, and so long as
the United States holds in trust the title to land which has been
allotted him, Congress can forbid the sale of intoxicants to him.[1038]
Also Congress can prohibit the introduction of intoxicating liquors into
land occupied by a tribe of uncivilized Indians within territory
admitted to statehood.[1039] Nor can a State withdraw Indians within its
borders from the operation of acts of Congress regulating trade with
them by conferring on them rights of citizenship and suffrage, whether
by its constitution or its statutes.[1040] And when a State is admitted
into the Union Congress may, in the enabling act, reserve authority to
legislate in the future respecting the Indians residing within the new
State, and may declare that existing acts of Congress relating to
traffic and intercourse with them shall remain in force.[1041]


Clause 4. _The Congress shall have Power_ * * * To establish an uniform
Rule of Naturalization, and uniform Laws on the subject of Bankruptcies
throughout the United States.


Naturalization and Citizenship


CATEGORIES OF NATURALIZED PERSONS

Naturalization has been defined by the Supreme Court as "the act of
adopting a foreigner, and clothing him with the privileges of a native
citizen, * * *"[1042] In the Dred Scott Case,[1043] the Court asserted
that the power of Congress under this clause applies only to "persons
born in a foreign country, under a foreign government."[1044] These
dicta are much too narrow to sustain the power which Congress has
actually exercised on the subject. The competence of Congress in this
field merges, in fact, with its indefinite, inherent powers in the field
of foreign relations. In the words of the Court: "As a government, the
United States is invested with all the attributes of sovereignty. As it
has the character of nationality it has the powers of nationality,
especially those which concern its relations and intercourse with other
countries."[1045] By the Immigration and Nationality Act of June 27,
1952,[1046] which codifies much previous legislation, it is enacted that
the following shall be citizens of the United States at birth:

"(1) a person born in the United States, and subject to the jurisdiction
thereof;

"(2) a person born in the United States to a member of an Indian, Eskimo,
Aleutian, or other aboriginal tribe: _Provided_, That the granting of
citizenship under this subsection shall not in any manner impair or
otherwise affect the right of such person to tribal or other property;

"(3) a person born outside of the United States and its outlying
possessions of parents both of whom are citizens of the United States
and one of whom has had a residence in the United States or one of its
outlying possessions, prior to the birth of such person;

"(4) a person born outside of the United States and its outlying
possessions of parents one of whom is a citizen of the United States who
has been physically present in the United States or one of its outlying
possessions for a continuous period of one year prior to the birth of
such person, and the other of whom is a national, but not a citizen of
the United States;

"(5) a person born in an outlying possession of the United States of
parents one of whom is a citizen of the United States who has been
physically present in the United States or one of its outlying
possessions for a continuous period of one year at any time prior to the
birth of such person;

"(6) a person of unknown parentage found in the United States while under
the age of five years, until shown, prior to his attaining the age of
twenty-one years, not to have been born in the United States;

"(7) a person born outside the geographical limits of the United States
and its outlying possessions of parents one of whom is an alien, and the
other a citizen of the United States who, prior to the birth of such
person, was physically present in the United States or its outlying
possessions for a period or periods totaling not less than ten years, at
least five of which were after attaining the age of fourteen years:
_Provided_, That any periods of honorable service in the Armed Forces of
the United States by such citizen parent may be included in computing
the physical presence requirements of this paragraph."[1047] By the same
act, "persons born in the Canal Zone and Panama after February 26, 1904,
one or both of whose parents were at the time of birth of such person
citizens of the United States, are declared to be citizens of the United
States; as likewise are of certain categories of persons born in Puerto
Rico, Alaska, Hawaii, the Virgin Islands and Guam on or after certain
stated dates."[1048]


WHO ARE ELIGIBLE FOR NATURALIZATION

Naturalization is a privilege to be given, qualified, or withheld as
Congress may determine, which an alien may claim only upon compliance
with the terms which Congress imposes. Earlier the privilege was
confined to white persons and persons of African descent, but was
extended by the Act of December 17, 1943, to descendants of races
indigenous to the Western Hemisphere and Chinese persons or persons of
Chinese descent;[1049] and by the Act of June 27, 1952, "the rights of a
person to become a naturalized citizen of the United States shall not be
denied or abridged because of race or sex or because the person is
married."[1050] But, any person "who advocates or teaches or who is a
member of or affiliated with any organization that advocates or teaches
* * *" opposition to all organized government, or "who advocates or
teaches or who is a member of or affiliated with any organization that
advocates or teaches the overthrow by force or violence or other
unconstitutional means of the Government of the United States" may not
be naturalized as a citizen of the United States.[1051] These
restrictive provisions are, moreover, "applicable to any applicant for
naturalization who at any time within a period of ten years immediately
preceding the filing of the petition for naturalization or after such
filing and before taking the final oath of citizenship is, or has been
found to be within any of the classes enumerated within this section,
notwithstanding that at the time the petition is filed he may not be
included within such classes."[1052]


THE PROCEDURE OF NATURALIZATION

This involves as its principal and culminating event the taking in open
court by the applicant of an oath: "(1) to support the Constitution of
the United States; (2) to renounce and abjure absolutely and entirely
all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty of whom or which the petitioner was before a subject or
citizen; (3) to support and defend the Constitution and the laws of the
United States against all enemies, foreign and domestic; (4) to bear
true faith and allegiance to the same; and (5)(A) to bear arms on behalf
of the United States when required by the law, or (B) to perform
noncombatant service in the Armed Forces of the United States when
required by the law, or (C) to perform work of national importance under
civilian direction when required by law."[1053] Any naturalized person
who takes this oath with mental reservations or conceals beliefs and
affiliations which under the statute disqualify one for naturalization,
is subject, upon these facts being shown in a proceeding brought for the
purpose, to have his certificate of naturalization cancelled.[1054]
Furthermore, if a naturalized person shall within five years "following
his naturalization become a member of or affiliated with any
organization, membership in or affiliation with which at the time of
naturalization would have precluded such person from naturalization
under the provisions of section 313, it shall be considered prima facie
evidence that such person was not attached to the principles of the
Constitution of the United States and was not well disposed to the good
order and happiness of the United States at the time of naturalization,
and, in the absence of countervailing evidence, it shall be sufficient
in the proper proceeding to authorize the revocation and setting aside
of the order admitting such person to citizenship and the cancellation
of the certificate of naturalization as having been obtained by
concealment of a material fact or by willful misrepresentation. * * *"
[1055]


RIGHTS OF NATURALIZED PERSONS

Chief Justice Marshall early stated the dictum that "a naturalized
citizen * * * become[s] a member of the society, possessing all the
rights of a native citizen, and standing, in the view of the
Constitution, on the footing of a native. The Constitution does not
authorize Congress to enlarge or abridge those rights. The simple power
of the national legislature is, to prescribe a uniform rule of
naturalization, and the exercise of this power exhausts it, so far as
respects the individual."[1056] A similar idea was expressed in 1946 in
Knauer _v._ United States:[1057] "Citizenship obtained through
naturalization is not a second-class citizenship. * * * [It] carries
with it the privilege of full participation in the affairs of our
society, including the right to speak freely, to criticize officials and
administrators, and to promote changes in our laws including the very
Charter of our Government."[1058] But, as shown above, a naturalized
citizen is subject at any time to have his good faith in taking the oath
of allegiance to the United States inquired into, and to lose his
citizenship if lack of such faith is shown in proper proceedings.[1059]
Also, "a person who has become a national by naturalization" may lose
his nationality by "having a continuous residence for three years in the
territory of a foreign state of which he was formerly a national or in
which the place of his birth is situated," or by "having a continuous
residence for five years in any other foreign state or states."[1060]
However, in the absence of treaty or statute to the contrary effect, a
child born in the United States who is taken during minority to the
country of his parents' origin, where his parents resume their former
allegiance, does not thereby lose his American citizenship provided that
on attaining his majority he elects to retain it and returns to the
United States to assume its duties.[1061]


CONGRESS' POWER EXCLUSIVE

Congress' power over naturalization is an exclusive power. A State
cannot denationalize a foreign subject who has not complied with federal
naturalization law and constitute him a citizen of the United States, or
of the State, so as to deprive the federal courts of jurisdiction over a
controversy between him and a citizen of a State.[1062] But power to
naturalize aliens may be, and early was, devolved by Congress upon state
courts having a common law jurisdiction.[1063] Also States may confer
the right of suffrage upon resident aliens who have declared their
intention to become citizens, and have frequently done so.[1064]


RIGHT OF EXPATRIATION: LOSS OF CITIZENSHIP

Notwithstanding evidence in early court decisions[1065] and in the
Commentaries of Chancellor Kent of a brief acceptance of the ancient
English doctrine of perpetual and unchangeable allegiance to the
government of one's birth, whereby a citizen is precluded from
renouncing his allegiance without permission of that government, the
United States, since enactment of the act of 1868,[1066] if indeed not
earlier, has expressly recognized the right of everyone to expatriate
himself and choose another country. Retention of citizenship is not
dependent entirely, however, upon the desires of the individual; for,
although it has been "conceded that a change of citizenship cannot be
arbitrarily imposed, that is, imposed without the concurrence of the
citizen," the United States, by virtue of the powers which inhere in it
as a sovereign nation, has been deemed competent to provide that an
individual voluntarily entering into certain designated conditions
shall, as a consequence thereof, suffer the loss of citizenship.[1067]


Exclusion of Aliens

The power of Congress "to exclude aliens from the United States and to
prescribe the terms and conditions on which they come in" is absolute,
being an attribute of the United States as a sovereign nation. In the
words of the Court: "That the government of the United States, through
the action of the legislative department, can exclude aliens from its
territory is a proposition which we do not think open to controversy.
Jurisdiction over its own territory to that extent is an incident of
every independent nation. It is a part of its independence. If it could
not exclude aliens, it would be to that extent subject to the control of
another power. * * * The United States, in their relation to foreign
countries and their subjects or citizens are one nation, invested with
powers which belong to independent nations, the exercise of which can be
invoked for the maintenance of its absolute independence and security
throughout its entire territory."[1068] By the Immigration and
Nationality Act of June 27, 1952, some thirty-one categories of aliens
are excluded from the United States[1069] including "aliens who are, or
at any time have been, members * * * of or affiliated with any
organization that advocates or teaches * * * the overthrow by force,
violence, or other unconstitutional means of the Government of the
United States * * *"[1070]

With this power of exclusion goes also the power to assert a
considerable degree of control over aliens after their admission to the
country. By the Alien Registration Act of 1940[1071] it was provided
that all aliens in the United States, fourteen years of age and over,
should submit to registration and finger printing, and wilful failure to
do so was made a criminal offense against the United States. This Act,
taken in conjunction with other laws regulating immigration and
naturalization, has constituted a comprehensive and uniform system for
the regulation of all aliens and precludes enforcement of a State
registration act. Said the Court, speaking by Justice Black: "With a
view to limiting prospective residents from foreign lands to those
possessing the qualities deemed essential to good and useful citizenship
in America, carefully defined qualifications are required to be met
before aliens may enter our country. These qualifications include rigid
requirements as to health, education, integrity, character, and
adaptability to our institutions. Nor is the alien left free from the
application of federal laws after entry and before naturalization. If
during the time he is residing here he should be found guilty of conduct
contrary to the rules and regulations laid down by Congress, he can be
deported. At the time he enters the country, at the time he applies for
permission to acquire the full status of citizenship, and during the
intervening years, he can be subjected to searching investigations as to
conduct and suitability for citizenship."[1072] The Act of June 27,
1952, repeats these requirements of the Act of 1940.[1073]

Recent cases underscore the sweeping nature of the powers of the
National Government to exclude aliens from the United States and to
deport by administrative process members of excluded classes. In Knauff
_v._ Shaughnessy,[1074] decided early in 1950, an order of the Attorney
General excluding, on the basis of confidential information, a wartime
bride who was prima facie entitled to enter the United States under The
War Brides Act of 1945,[1075] was held to be not reviewable by the
courts; nor were regulations on which the order was based invalid as
representing an undue delegation of legislative power. Said the Court:
"Normally Congress supplies the conditions of the privilege of entry
into the United States. But because the power of exclusion of aliens is
also inherent in the executive department of the sovereign, Congress may
in broad terms authorize the executive to exercise the power, e.g., as
was done here, for the best interests of the country during a time of
national emergency. Executive officers may be entrusted with the duty of
specifying the procedures for carrying out the congressional
intent."[1076]

In cases decided in March and April, 1952, comparable results were
reached: The Internal Security Act of 1950, section 23, in authorizing
the Attorney General to hold in custody, without bail, aliens who are
members of the Communist Party of the United States, pending
determination as to their deportability, is not unconstitutional.[1077]
Nor was it unconstitutional to deport under the Alien Registration Act
of 1940[1078] a legally resident alien because of membership in the
Communist Party, although such membership ended before the enactment of
the Act. Such application of the Act did not make it _ex post facto_,
being but an exercise of the power of the United States to terminate its
hospitality _ad libitum_.[1079] And a statutory provision[1080] which
makes it a felony for an alien against whom a specified order of
deportation is outstanding "to willfully fail or refuse to make timely
application for travel or other documents necessary to his departure" is
not on its face void for "vagueness."[1081]

The power of Congress to legislate with respect to the conduct of alien
residents is, however, a concomitant of its power to prescribe the terms
and conditions on which they may enter the United States; to establish
regulations for sending out of the country such aliens as have entered
in violation of law; and to commit the enforcement of such conditions
and regulations to executive officers. It is not a power to lay down a
special code of conduct for alien residents or to govern private
relations with them. Purporting to enforce the above distinction, the
Court, in 1909, held void a statutory provision which, in prohibiting
the importation of "any alien woman or girl for the purpose of
prostitution," provided further that whoever should keep for the purpose
of prostitution "any alien woman or girl within three years after she
shall have entered the United States" should be deemed guilty of a
felony and punished therefor.[1082] Three Justices, however, thought the
measure justifiable on the principle that "for the purpose of excluding
those who unlawfully enter this country Congress has power to retain
control over aliens long enough to make sure of the facts. * * * To this
end it may make their admission conditional for three years. * * *"
[And] "if Congress can forbid the entry * * *, it can punish those who
cooperate in their fraudulent entry."[1083]


Bankruptcy


PERSONS WHO MAY BE RELEASED FROM DEBT

In an early case on circuit Justice Livingston suggested that inasmuch
as the English statutes on the subject of bankruptcy from the time of
Henry VIII down had applied only to traders it might "well be doubted,
whether an act of Congress subjecting to such a law every description of
persons within the United States, would comport with the spirit of the
powers vested in them in relation to this subject."[1084] Neither
Congress nor the Supreme Court has ever accepted this limited view. The
first bankruptcy law, passed in 1800, departed from the English practice
to the extent of including bankers, brokers, factors and underwriters as
well as traders.[1085] Asserting that the narrow scope of the English
statutes was a mere matter of policy, which by no means entered into the
nature of such laws, Justice Story defined a law on the subject of
bankruptcies in the sense of the Constitution as a law making provisions
for cases of persons failing to pay their debts.[1086] This
interpretation has been ratified by the Supreme Court. In Hanover
National Bank _v._ Moyses,[1087] it held valid the Bankruptcy Act of
1898 which provided that persons other than traders might become
bankrupts and that this might be done on voluntary petition. The Court
has given tacit approval to the extension of the bankruptcy laws to
cover practically all classes of persons and corporations,[1088]
including even municipal corporations.[1089]


LIBERALIZATION OF RELIEF GRANTED

As the coverage of the bankruptcy laws has been expanded, the scope of
the relief afforded to debtors has been correspondingly enlarged. The
act of 1800, like its English antecedents, was designed primarily for
the benefit of creditors. Beginning with the act of 1841, which opened
the door to voluntary petitions, rehabilitation of the debtor has become
an object of increasing concern to Congress. An adjudication in
bankruptcy is no longer requisite to the exercise of bankruptcy
jurisdiction. In 1867 the debtor for the first time was permitted,
either before or after adjudication of bankruptcy, to propose terms of
composition which would become binding upon acceptance by a designated
majority of his creditors and confirmation by a bankruptcy court. This
measure was held constitutional,[1090] as were later acts which provided
for the reorganization of corporations which are insolvent or unable to
meet their debts as they mature,[1091] and for the composition and
extension of debts in proceedings for the relief of individual
farmer-debtors.[1092] Nor is the power of Congress limited to adjustment
of the rights of creditors. The Supreme Court has also ruled that the
rights of a purchaser at a judicial sale of the debtor's property are
within reach of the bankruptcy power, and may be modified by a
reasonable extension of the period for redemption from such sale.[1093]
The sympathetic attitude with which the Court has viewed these
developments is reflected in the opinion in Continental Illinois
National Bank and Trust Co. _v._ Chicago, R.I. and P.R. Co.,[1094] where
Justice Sutherland wrote, on behalf of a unanimous court: "* * * these
acts, far-reaching though they may be, have not gone beyond the limit of
Congressional power; but rather have constituted extensions into a field
whose boundaries may not yet be fully revealed."[1095]


CONSTITUTIONAL LIMITATIONS ON THE POWER

In the exercise of its bankruptcy powers Congress must not transgress
the Fifth and Tenth Amendments. It may not take from a creditor specific
property previously acquired from a debtor nor circumscribe the
creditor's right to such an unreasonable extent as to deny him due
process of law;[1096] neither may it subject the fiscal affairs of a
political subdivision of a State to the control of a federal bankruptcy
court.[1097] Since Congress may not supersede the power of a State to
determine how a corporation shall be formed, supervised and dissolved, a
corporation which has been dissolved by a decree of a State court may
not file a petition for reorganization under the Bankruptcy Acts.[1098]
But Congress may impair the obligation of a contract and may extend the
provisions of the bankruptcy laws to contracts already entered into at
the time of their passage.[1099] It may also empower courts of
bankruptcy to entertain petitions by taxing agencies or
instrumentalities for a composition of their indebtedness where the
State has consented to the proceeding and the federal court is not
authorized to interfere with the fiscal or governmental affairs of the
petitioner.[1100] Also bankruptcy legislation must be uniform, but the
uniformity required is geographic, not personal. Congress may recognize
the laws of the States relating to dower, exemption, the validity of
mortgages, priorities of payment and similar matters, even though such
recognition leads to different results from State to State.[1101]


THE POWER NOT EXCLUSIVE

Prior to 1898 Congress exercised the power to establish "uniform laws on
the subject of bankruptcies" only very intermittently. The first
national bankruptcy law was not enacted until 1800 to be repealed in
1803; the second was passed in 1841 and repealed two years later; the
third was enacted in 1867 and repealed in 1878.[1102] Thus during the
first 89 years under the Constitution a national bankruptcy law was in
existence only sixteen years altogether. Consequently the most important
problems of interpretation which arose during that period concerned the
effect of this clause on State law. The Supreme Court ruled at an early
date that in the absence of Congressional action the States may enact
insolvency laws since it is not the mere existence of the power but
rather its exercise which is incompatible with the exercise of the same
power by the States.[1103] Later cases were to settle further that the
enactment of a national bankruptcy law does not invalidate State laws in
conflict therewith but serves only to relegate them to a state of
suspended animation with the result that upon repeal of the national
statute they again come into operation without reenactment.[1104]


CONSTITUTIONAL STATUS OF STATE INSOLVENCY LAWS

A State is, of course, without power to enforce any law governing
bankruptcies which impairs the obligation of contracts,[1105] extends to
persons or property outside its jurisdiction,[1106] or conflicts with
the national bankruptcy laws.[1107] Giving effect to the policy of the
federal statute, the Supreme Court has held that a State statute
regulating the distribution of property of an insolvent was suspended by
that law,[1108] and that a State court was without power to proceed with
pending foreclosure proceedings after a farmer-debtor had filed a
petition in the federal bankruptcy court for a composition or extension
of time to pay his debts.[1109] A State law governing fraudulent
transfers was found to be compatible with the act of Congress,[1110] as
was a statute which provided that a discharge in bankruptcy should be
unavailing to terminate the suspension of the driver's license of a
person who failed to pay a judgment rendered against him for damages
resulting from his negligent operation of a motor vehicle.[1111] If a
State desires to participate in the assets of a bankrupt it must submit
to the appropriate requirements of the Bankruptcy Court with respect to
the filing of claims by a designated date; it cannot assert a claim for
taxes by filing a demand therefor at a later date.[1112]


Clauses 5 and 6. _The Congress shall have Power_ * * * 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.


Fiscal and Monetary Powers of Congress


COINAGE, WEIGHTS AND MEASURES

The power "to coin money" and "regulate the value thereof" has been
broadly construed to authorize regulation of every phase of the subject
of currency. Congress may charter banks and endow them with the right to
issue circulating notes,[1113] and may restrain the circulation of notes
not issued under its own authority.[1114] To this end it may impose a
prohibitive tax upon the circulation of the notes of State banks[1115]
or of municipal corporations.[1116] It may require the surrender of gold
coin and of gold certificates in exchange for other currency not
redeemable in gold. A plaintiff who sought payment for the gold coin and
certificates thus surrendered in an amount measured by the higher market
value of gold, was denied recovery on the ground that he had not proved
that he would suffer any actual loss by being compelled to accept an
equivalent amount of other currency.[1117] Inasmuch as "every contract
for the payment of money, simply, is necessarily subject to the
constitutional power of the government over the currency, whatever that
power may be, and the obligation of the parties is, therefore, assumed
with reference to that power,"[1118] the Supreme Court sustained the
power of Congress to make Treasury notes legal tender in satisfaction of
antecedent debts,[1119] and, many years later, to abrogate the clauses
in private contracts calling for payment in gold coin, even though such
contracts were executed before the legislation was passed.[1120] The
power to coin money also imports authority to maintain such coinage as a
medium of exchange at home, and to forbid its diversion to other uses by
defacement, melting or exportation.[1121]


THE PUNISHMENTS OF COUNTERFEITING

In its affirmative aspect this clause has been given a narrow
interpretation; it has been held not to cover the circulation of
counterfeit coin or the possession of equipment susceptible of use for
making counterfeit coin.[1122] At the same time the Supreme Court has
rebuffed attempts to read into this provision a limitation upon either
the power of the States or upon the powers of Congress under the
preceding clause. It has ruled that a State may punish the utterance of
forged coins.[1123] On the ground that the power of Congress to coin
money imports "the correspondent and necessary power and obligation to
protect and to preserve in its purity this constitutional currency for
the benefit of the nation,"[1124] it has sustained federal statutes
penalizing the importation or circulation of counterfeit coin,[1125] or
the willing and conscious possession of dies in the likeness of those
used for making coins of the United States.[1126] In short, the above
clause is entirely superfluous. Congress would have had the power which
it purports to confer under the necessary and proper clause; and the
same is the case with the other enumerated crimes which it is authorized
to punish. The enumeration was unnecessary and is not exclusive.[1127]


THE BORROWING POWER VERSUS THE FISCAL POWER

Usually the aggregate of the fiscal and monetary powers of the National
Government--to lay and collect taxes, to borrow money and to coin money
and regulate the value thereof--have reinforced each other, and,
cemented by the necessary and proper clause, have provided a secure
foundation for acts of Congress chartering banks and other financial
institutions,[1128] or making its treasury notes legal tender in the
payment of antecedent debts.[1129] But in 1935 the opposite situation
arose--one in which the power to regulate the value of money collided
with the obligation incurred in the exercise of the power to borrow
money. By a vote of eight-to-one the Supreme Court held that the
obligation assumed by the exercise of the latter was paramount, and
could not be repudiated to effectuate the monetary policies of
Congress.[1130] In a concurring opinion Justice Stone declined to join
with the majority in suggesting that "the exercise of the sovereign
power to borrow money on credit, which does not override the sovereign
immunity from suit, may nevertheless preclude or impede the exercise of
another sovereign power, to regulate the value of money; or to suggest
that although there is and can be no present cause of action upon the
repudiated gold clause, its obligation is nevertheless, in some manner
and to some extent, not stated, superior to the power to regulate the
currency which we now hold to be superior to the obligation of the
bonds."[1131]


Clause 7. _The Congress shall have Power_ * * * To establish Post
Offices and post Roads.


The Postal Power


"ESTABLISH"

The great question raised in the early days with reference to the postal
clause concerned the meaning to be given to the word "establish"--did it
confer upon Congress the power to _construct_ post offices and post
roads, or only the power to _designate_ from existing places and routes
those that should serve as post offices and post roads? As late as 1855
Justice McLean stated that this power "has generally been considered as
exhausted in the designation of roads on which the mails are to be
transported," and concluded that neither under the commerce power nor
the power to establish post roads could Congress construct a bridge over
a navigable water.[1132] A decade earlier, however, the Court, without
passing upon the validity of the original construction of the Cumberland
Road, held that being "charged, * * *, with the transportation of the
mails," Congress could enter a valid compact with the State of
Pennsylvania regarding the use and upkeep of the portion of the road
lying in that State.[1133] The debate on the question was terminated in
1876 by the decision in Kohl _v._ United States[1134] sustaining a
proceeding by the United States to appropriate a parcel of land in
Cincinnati as a site for a post office and courthouse.


POWER TO PROTECT THE MAILS

The postal powers of Congress embrace all measures necessary to insure
the safe and speedy transit and prompt delivery of the mails.[1135] And
not only are the mails under the protection of the National Government,
they are in contemplation of law its property. This principle was
recognized by the Supreme Court in 1845 in holding that wagons carrying
United States mail were not subject to a State toll tax imposed for use
of the Cumberland Road pursuant to a compact with the United
States.[1136] Half a century later it was availed of as one of the
grounds on which the national executive was conceded the right to enter
the national courts and demand an injunction against the authors of any
wide-spread disorder interfering with interstate commerce and the
transmission of the mails.[1137]


ANTI-SLAVERY AND THE MAILS

Prompted by the efforts of Northern anti-slavery elements to disseminate
their propaganda in the Southern States through the mails, President
Jackson, in his annual message to Congress in 1835, suggested "the
propriety of passing such a law as will prohibit, under severe
penalties, the circulation in the Southern States, through the mail, of
incendiary publications intended to instigate the slaves to
insurrection."[1138] In the Senate John C. Calhoun resisted this
recommendation, taking the position that it belonged to the States and
not to Congress to determine what is and what is not calculated to
disturb their security. He expressed the fear that if Congress might
determine what papers were incendiary, and as such prohibit their
circulation through the mail, it might also determine what were not
incendiary and enforce their circulation.[1139]


POWER TO PREVENT HARMFUL USE OF THE POSTAL FACILITIES

Some thirty years later Congress passed the first of a series of acts to
exclude from the mails publications designed to defraud the public or
corrupt its morals. In the pioneer case of Ex parte Jackson,[1140] the
Court sustained the exclusion of circulars relating to lotteries on the
general ground that "the right to designate what shall be carried
necessarily involves the right to determine what shall be
excluded."[1141] The leading fraud order case, decided in 1904, holds to
the same effect.[1142] Pointing out that it is "an indispensable adjunct
to a civil government," to supply postal facilities, the Court restated
its premise that the "legislative body in thus establishing a postal
service, may annex such conditions to it as it chooses."[1143] Later
cases appear to have qualified these sweeping declarations. In upholding
requirements that publishers of newspapers and periodicals seeking
second-class mailing privileges file complete information regarding
ownership, indebtedness and circulation and that all paid advertisements
in such publications be marked as such, the Court emphasized that these
provisions were reasonably designed to safeguard the second-class
privilege from exploitation by mere advertising publications. Chief
Justice White warned that the Court by no means intended to imply that
it endorsed the government's "broad contentions concerning the existence
of arbitrary power through the classification of the mails, or by way of
condition * * *"[1144] Again, in Milwaukee Social Democratic Publishing
Co. _v._ Burleson,[1145] where the Court sustained an order of the
Postmaster General excluding from the second-class privilege a newspaper
which he found to have systematically published matter banned by the
Espionage Act of 1917, the claim of absolute power in Congress to
withhold this privilege was sedulously avoided. More recently, when
reversing an order denying the second-class privilege to a mailable
publication because of the poor taste and vulgarity of its contents, on
the ground that the Postmaster General exceeding his statutory
authority, Justice Douglas assumed, in the opinion of the Court, "that
Congress has a broad power of classification and need not open
second-class mail to publications of all types."[1146]


THE EXCLUSION POWER AS AN ADJUNCT TO OTHER POWERS

In the cases just reviewed the mails were closed to particular types of
communication which were deemed to be harmful. A much broader power of
exclusion was asserted in the Public Utility Holding Company Act of
1935.[1147] To induce compliance with the regulatory requirements of
that act, Congress denied the privilege of using the mails for any
purpose to holding companies which failed to obey that law, irrespective
of the character of the material to be carried. Viewing the matter
realistically, the Supreme Court treated this provision as a penalty.
While it held this statute constitutional because the regulations whose
infractions were thus penalized were themselves valid,[1148] it declared
that "Congress may not exercise its control over the mails to enforce a
requirement which lies outside its constitutional province,
* * *."[1149]


STATE REGULATIONS AFFECTING THE MAILS

In determining the extent to which State laws may impinge upon persons
or corporations whose services are utilized by Congress in executing its
postal powers, the task of the Supreme Court has been to determine
whether particular measures are consistent with the general policies
indicated by Congress. Broadly speaking, the Court has approved
regulations which have a trivial or remote relation to the operation of
the postal service, while disallowing those which constitute a serious
impediment to it. Thus a State statute which granted to one company an
exclusive right to operate a telegraph business in the State was found
to be incompatible with a federal law which, in granting to any
telegraph company the right to construct its lines upon post roads, was
interpreted as a prohibition of State monopolies in a field which
Congress was entitled to regulate in the exercise of its combined power
over commerce and post roads.[1150] An Illinois statute which, as
construed by the State courts, required an interstate mail train to make
a detour of seven miles in order to stop at a designated station, also
was held to be an unconstitutional interference with the power of
Congress under this clause.[1151] But a Minnesota statute which required
intrastate trains to stop at county seats was found to be
unobjectionable.[1152] Local laws classifying postal workers with
railroad employees for the purpose of determining a railroad's liability
for personal injuries,[1153] or subjecting a union of railway mail
clerks to a general law forbidding any "labor organization" to deny any
person membership because of his race, color or creed,[1154] have been
held not to conflict with national legislation or policy in this field.
Despite the interference _pro tanto_ with the performance of a federal
function, a State may arrest a postal employee charged with murder while
he is engaged in carrying out his official duties,[1155] but it cannot
punish a person for operating a mail truck over its highways without
procuring a driver's license from State authorities.[1156]


Clause 8. _The Congress shall have Power_ * * * 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.


Copyrights and Patents


SCOPE OF THE POWER

This clause is the foundation upon which the national patent and
copyright laws rest, although it uses neither of those terms. So far as
patents are concerned, modern legislation harks back to the Statute of
Monopolies of 1624, whereby Parliament endowed inventors with the sole
right to their inventions for fourteen years.[1157] Copyright law, in
turn, traces back to the statute of 1710 which secured to authors of
books the sole right of publishing them for designated periods.[1158]
Congress was not, however, by this provision, vested with anything akin
to the royal prerogative in the creation and bestowal of monopolistic
privileges. Its power is limited as to subject matter, and as to the
purpose and duration of the rights granted. Only the writings and
discoveries of authors and inventors may be protected, and then only to
the end of promoting science and the useful arts.[1159] While Congress
may grant exclusive rights only for a limited period, it may extend the
term upon the expiration of the period originally specified, and in so
doing may protect the rights of purchasers and assignees.[1160] The
copyright and patent laws do not have, of their own force, any
extraterritorial operation.[1161]


PATENTABLE DISCOVERIES

The protection afforded by acts of Congress under this clause is limited
to new and useful inventions,[1162] and while a patentable invention is
a mental achievement,[1163] yet for an idea to be patentable it must
have first taken physical form.[1164] Despite the fact that the
Constitution uses the term "discovery" rather than "invention," a patent
may not issue for the discovery of a hitherto unknown phenomenon of
nature; "if there is to be invention from such a discovery, it must come
from the application of the law of nature to a new and useful
end."[1165] Conversely, the mental processes which are thus applied must
display "more ingenuity * * * than the work of a mechanic skilled in the
art";[1166] and while combination patents have been at times
sustained,[1167] the accumulation of old devices is patentable "only
when the whole in some way exceeds the sum of its parts."[1168] The
Court's insistence on the presence of "inventive genius" as the test of
patentability goes far back and has been reiterated again and again in
slightly varying language,[1169] although it seems to have had little
effect on the point of view of the Patent Office.[1170]


PROCEDURE IN ISSUING PATENTS

The standard of patentability is a constitutional standard, and the
question of the validity of a patent is a question of law.[1171]
Congress may authorize the issuance of a patent for an invention by a
special, as well as by general law, provided the question as to whether
the patentees device is in truth an invention is left open to
investigation under the general law.[1172] The function of the
Commissioner of Patents in issuing letters patent is deemed to be
quasi-judicial in character. Hence an act granting a right of appeal
from the Commission to the Court of Appeals for the District of Columbia
is not unconstitutional as conferring executive power upon a judicial
body.[1173]


NATURE AND SCOPE OF THE RIGHT SECURED

The leading case bearing on the nature of the rights which Congress is
authorized to _secure_ is that of Wheaton _v._ Peters. Wheaton charged
Peters with having infringed his copyright on the twelve volumes of
"Wheaton's Reports" wherein are reported the decisions of the United
States Supreme Court for the years from 1816 to 1827 inclusive. Peters's
defense turned on the proposition that inasmuch as Wheaton had not
complied with all of the requirements of the act of Congress, his
alleged copyright was void. Wheaton, while denying this assertion of
fact, further contended that the statute was only intended to _secure_
him in his pre-existent rights at common law. These at least, he
claimed, the Court should protect. A divided Court held in favor of
Peters on the legal question. It denied, in the first place, that there
was any principle of the common law which protected an author in the
sole right to continue to publish a work once published. It denied, in
the second place, that there is any principle of law, common or
otherwise, which pervades the Union except such as are embodied in the
Constitution and the acts of Congress. Nor, in the third place, it held,
did the word "securing" in the Constitution recognize the alleged common
law principle which Wheaton invoked. The exclusive right which Congress
is authorized to _secure_ to authors and inventors owes its existence
solely to the acts of Congress securing it,[1174] from which it follows
that the rights granted by a patent or copyright are subject to such
qualifications and limitations as Congress, in its unhampered
consultation of the public interest, sees fit to impose.[1175]

In giving to authors the exclusive right to dramatize any of their
works, Congress did not exceed its powers under this clause. Even as
applied to pantomime dramatization by means of silent motion pictures,
the act was sustained against the objection that it extended the
copyright to ideas rather than to the words in which they were
clothed.[1176] But the copyright of the description of an art in a book
was held not to lay a foundation for an exclusive claim to the art
itself. The latter can be protected, if at all, only by letters
patent.[1177] Since copyright is a species of property distinct from the
ownership of the equipment used in making copies of the matter
copyrighted, the sale of a copperplate under execution did not pass any
right to print and publish the map which the copperplate was designed to
produce.[1178] A patent right may, however, be subjected, by bill in
equity, to payment of a judgment debt of the patentee.[1179]


POWER OF CONGRESS OVER PATENT RIGHTS

Letters patent for a new invention or discovery in the arts confer upon
the patentee an exclusive property in the patented invention which
cannot be appropriated or used by the Government without just
compensation.[1180] Congress may, however, modify rights under an
existing patent, provided vested property rights are not thereby
impaired,[1181] but it does not follow that it may authorize an inventor
to recall rights which he has granted to others or reinvest in him
rights of property which he had previously conveyed for a valuable and
fair consideration.[1182] Furthermore, the rights which the present
statutes confer are subject to the Anti-Trust Acts, though it can be
hardly said that the cases in which the Court has endeavored to draw the
line between the rights claimable by patentees and the kind of
monopolistic privileges which are forbidden by those acts exhibit entire
consistency in their holdings.[1183]


STATE POWER AFFECTING PATENTS AND COPYRIGHTS

Nor do the patent laws displace the police or taxing powers of the
States. Whatever rights are secured to inventors must be enjoyed in
subordination to the general authority of the State over all property
within its limits. A statute of Kentucky requiring the condemnation of
illuminating oils which were inflammable at less than 130 degrees
Fahrenheit, was held not to interfere with any right secured by the
patent laws, although the oil for which the patent was issued could not
be made to comply with State specifications.[1184] In the absence of
federal legislation, a State may prescribe reasonable regulations for
the transfer of patent rights so as to protect its citizens from fraud.
Hence a requirement of State law that the words "given for a patent
right" appear on the face of notes given in payment for such right is
not unconstitutional.[1185] Royalties received from patents or
copyrights are subject to a nondiscriminating State income tax, a
holding to the contrary in 1928 having been subsequently
overruled.[1186]


TRADE-MARKS AND ADVERTISEMENTS

In the famous Trade-Mark Cases,[1187] decided in 1879, the Supreme Court
held void acts of Congress which, in apparent reliance upon this clause,
extended the protection of the law to trade-marks registered in the
Patent Office. "The ordinary trade-mark" said Justice Miller for the
Court, "has no necessary relation to invention or discovery"; nor is it
to be classified "under the head of writings of authors." It does not
"depend upon novelty, invention, discovery, or any work of the
brain."[1188] Not many years later the Court, again speaking through
Justice Miller, ruled that a photograph may be constitutionally
copyright,[1189] while still more recently a circus poster was held to
be entitled to the same protection. In answer to the objection of the
Circuit Court that a lithograph which "has no other use than that of a
mere advertisement * * * (would not be within) the meaning of the
Constitution," Justice Holmes summoned forth the shades of Velasquez,
Whistler, Rembrandt, Ruskin, Degas, and others in support of the
proposition that it is not for the courts to attempt to judge the worth
of pictorial illustrations outside the narrowest and most obvious
limits.[1190]


Clause 9. _The Congress shall have Power_ * * * To constitute Tribunals
inferior to the supreme Court; _See_ article III, p. 528.

Clause 10. _The Congress shall have Power_ * * * To define and punish
Piracies and Felonies committed on the high Seas, and Offences against
the Law of Nations.


Piracies, Felonies, and Offenses Against the Law of Nations


ORIGIN OF THE CLAUSE

"When the United States ceased to be a part of the British empire, and
assumed the character of an independent nation, they became subject to
that system of rules which reason, morality, and custom had established
among civilized nations of Europe, as their public law. * * * The
faithful observance of this law is essential to national character,
* * *"[1191] These words of Chancellor Kent expressed the view of the
binding character of International Law which was generally accepted at
the time the Constitution was adopted. During the Revolutionary War,
Congress took cognizance of all matters arising under the law of nations
and professed obedience to that law.[1192] Under the Articles of
Confederation, it was given exclusive power to appoint courts for the
trial of piracies and felonies committed on the high seas, but no
provision was made for dealing with offenses against the law of
nations.[1193] The draft of the Constitution submitted to the Convention
of 1787 by its Committee of Detail empowered Congress "to declare the
law and punishment of piracies and felonies committed on the high seas,
and the punishment of counterfeiting the coin of the United States, and
of offences against the law of nations."[1194] In the debate on the
floor of the Convention the discussion turned on the question as to
whether the terms, "felonies" and the "law of nations," were
sufficiently precise to be generally understood. The view that these
terms were often so vague and indefinite as to require definition
eventually prevailed and Congress was authorized to define as well as
punish piracies, felonies and offenses against the law of nations.[1195]


DEFINITION OF OFFENSES

The fact that the Constitutional Convention considered it necessary to
give Congress authority to define offenses against the law of nations
does not mean that in every case Congress must undertake to codify that
law or mark its precise boundaries before prescribing punishments for
infractions thereof. An act punishing "the crime of piracy, as defined
by the law of nations" was held to be an appropriate exercise of the
constitutional authority to "define and punish" the offense, since it
adopted by reference the sufficiently precise definition of
International Law.[1196] Similarly, in Ex parte Quirin,[1197] the Court
found that by the reference in the Fifteenth Article of War to
"offenders or offenses that * * * by the law of war may be triable by
such military commissions * * *," Congress had "exercised its authority
to define and punish offenses against the law of nations by sanctioning,
within constitutional limitations, the jurisdiction of military
commissions to try persons for offenses which, according to the rules
and precepts of the law of nations, and more particularly the law of
war, are cognizable by such tribunals."[1198] Where, conversely,
Congress defines with particularity a crime which is "an offense against
the law of nations," the law is valid, even if it contains no recital
disclosing that it was enacted pursuant to this clause. Thus the duty
which the law of nations casts upon every government to prevent a wrong
being done within its own dominion to another nation with which it is at
peace, or to the people thereof, was found to furnish a sufficient
justification for the punishment of the counterfeiting within the United
States, of notes, bonds and other securities of foreign
governments.[1199]


EXTRATERRITORIAL REACH OF THE POWER

Since this clause contains the only specific grant of power to be found
in the Constitution for the punishment of offenses outside the
territorial limits of the United States, a lower federal court held in
1932[1200] that the general grant of admiralty and maritime jurisdiction
by article III, section 2, could not be construed as extending either
the legislative or judicial power of the United States to cover offenses
committed on vessels outside the United States but not on the high seas.
Reversing that decision, the Supreme Court held that this provision
"cannot be deemed to be a limitation on the powers, either legislative
or judicial, conferred on the National Government by article III, § 2.
The two clauses are the result of separate steps independently taken in
the Convention, by which the jurisdiction in admiralty, previously
divided between the Confederation and the States, was transferred to the
National Government. It would be a surprising result, and one plainly
not anticipated by the framers or justified by principles which ought to
govern the interpretation of a constitution devoted to the
redistribution of governmental powers, if part of them were lost in the
process of transfer. To construe the one clause as limiting rather than
supplementing the other would be to ignore their history, and without
effecting any discernible purpose of their enactment, to deny to both
the States and the National Government powers which were common
attributes of sovereignty before the adoption of the Constitution. The
result would be to deny to both the power to define and punish crimes of
less gravity than felonies committed on vessels of the United States
while on the high seas, and crimes of every grade committed on them
while in foreign territorial waters."[1201] Within the meaning of this
section an offense is committed on the high seas even where the vessel
on which it occurs is lying at anchor on the road in the territorial
waters of another country.[1202]


Clauses 11, 12, 13, and 14. _The Congress shall have power_ * * *:

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.


The War Power


SOURCE AND SCOPE

Three different views regarding the source of the war power found
expression in the early years of the Constitution and continued to vie
for supremacy for nearly a century and a half. Writing in The
Federalist,[1203] Hamilton elaborated the theory that the war power is
an aggregate of the particular powers granted by article I, section 8.
Not many years later, in 1795, the argument was advanced that the war
power of the National Government is an attribute of sovereignty and
hence not dependent upon the affirmative grants of the written
Constitution.[1204] Chief Justice Marshall appears to have taken a still
different view, namely that the power to wage war is implied from the
power to declare it. In McCulloch _v._ Maryland[1205] he listed the
power "to declare _and conduct_ a war"[1206] as one of the "enumerated
powers" from which the authority to charter the Bank of the United
States was deduced. During the era of the Civil War the two latter
theories were both given countenance by the Supreme Court. Speaking for
four Justices in Ex Parte Milligan, Chief Justice Chase described the
power to declare war as "necessarily" extending "to all legislation
essential to the prosecution of war with vigor and success, except such
as interferes with the command of the forces and conduct of
campaigns."[1207] In another case, adopting the terminology used by
Lincoln in his Message to Congress on July 4, 1861,[1208] the Court
referred to "the war power" as a single unified power.[1209]


AN INHERENT POWER

Thereafter we find the phrase, "the war power," being used by both Chief
Justice White[1210] and Chief Justice Hughes,[1211] the former declaring
the power to be "complete and undivided."[1212] Not until 1936 however
did the Court explain the logical basis for imputing such an inherent
power to the Federal Government. In United States _v._ Curtiss-Wright
Export Corp.,[1213] the reasons for this conclusion were stated by
Justice Sutherland as follows: "As a result of the separation from Great
Britain by the colonies acting as a unit, the powers of external
sovereignty passed from the Crown not to the colonies severally, but to
the colonies in their collective and corporate capacity as the United
States of America. Even before the Declaration, the colonies were a unit
in foreign affairs, acting through a common agency--namely the
Continental Congress, composed of delegates from the thirteen colonies.
That agency exercised the powers of war and peace, raised an army,
created a navy, and finally adopted the Declaration of Independence.
* * * 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 power 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."[1214]


A COMPLEXUS OF GRANTED POWERS

In the more recent case of Lichter _v._ United States,[1215] on the
other hand, the Court speaks of the "war powers" of Congress. Upholding
the Renegotiation Act, it declared that: "In view of this power 'To
raise and support Armies, * * *' and the power granted in the same
Article of the Constitution 'to make all Laws which shall be necessary
and proper for carrying into Execution the foregoing Powers, * * *' the
only question remaining is whether the Renegotiation Act was a law
'necessary and proper for carrying into Execution' the war powers of
Congress and especially its power to support armies."[1216] In a
footnote it listed the Preamble, the necessary and proper clause, the
provisions authorizing Congress to lay taxes and provide for the common
defense, to declare war, and to provide and maintain a navy, together
with the clause designating the President as Commander in Chief of the
Army and Navy, as being "among the many other provisions implementing
the Congress and the President with powers to meet the varied demands of
war, * * *"[1217]


A DECLARATION OF WAR, WHEN REQUIRED

In the first draft of the Constitution presented to the Convention of
1787 by its Committee of Detail Congress was empowered "to make
war."[1218] On the floor of the Convention according to Madison's
Journal "Mr. Madison and Mr. Gerry, moved to insert '_declare_' striking
out '_make_' war; leaving to the Executive the power to repel sudden
attacks"[1219] and their motion was adopted. When the Bey of Tripoli
declared war upon the United States in 1801 a sharp debate was
precipitated as to whether a formal declaration of war by Congress was
requisite to create the legal status of war. Jefferson sent a squadron
of frigates to the Mediterranean to protect our commerce but its mission
was limited to defense in the narrowest sense of the term. After one of
the vessels in this squadron had been engaged by, and had defeated, a
Tripolitan cruiser, the latter was permitted to return home. Jefferson
defended this course in a message to Congress saying, "Unauthorized by
the Constitution, without the sanction of Congress, to go beyond the
line of defence, the vessel being disabled from committing further
hostilities, was liberated with its crew."[1220] Hamilton promptly
espoused a different interpretation of the power given to Congress to
declare war. "It is the peculiar and exclusive province of Congress," he
declared "_when the nation is at peace_ to change that state into a
state of war; whether from calculations of policy, or from provocations,
or injuries received; in other words, it belongs to Congress only _to go
to War_. But when a foreign nation declares or openly and avowedly makes
war upon the United States, they are then by the very fact _already at
war_, and any declaration on the part of Congress is nugatory; it is at
least unnecessary."[1221] Apparently Congress shared the view that a
formal declaration of war was unnecessary. It enacted a statute which
authorized the President to instruct the commanders of armed vessels of
the United States to "seize and make prize of all vessels, goods and
effects, belonging to the Bey of Tripoli, * * *; and also to cause to be
done all such other acts of precaution or hostility as _the state of
war_ will justify, * * *"[1222]


THE PRIZE CASES, 1863

Sixty years later the Supreme Court, in sustaining the blockade of the
Southern ports which Lincoln had instituted in April 1861, at a time
when Congress was not in session, adopted virtually the same line of
reasoning as Hamilton had advanced. "This greatest of civil wars" said
the Court "was not gradually developed * * * it * * * sprung forth
suddenly from the parent brain, a Minerva in the full panoply of _war_.
The President was bound to meet it in the shape it presented itself,
without waiting for Congress to baptize it with a name; and no name
given to it by him or them could change the fact."[1223] This doctrine
was sharply challenged by a powerful minority of the Court on the ground
that while the President could unquestionably adopt such measures as the
statutes permitted for the enforcement of the laws against insurgents,
Congress alone could stamp an insurrection with the character of war and
thereby authorize the legal consequences which ensue a state of
war.[1224] Inasmuch as the Court finally conceded that the blockade had
been retroactively sanctioned by Congress, that part of its opinion
dealing with the power of the President, acting alone, was really
_obiter_. But a similar opinion was voiced by Chief Justice Chase on
behalf of a unanimous Court, after the war was over. In Freeborn _v._
The "Protector,"[1225] it became necessary to ascertain the exact dates
on which the war began and ended in order to determine whether the
statute of limitation had run against the asserted claim. To answer this
question the Chief Justice said that "it is necessary, therefore, to
refer to some public act of the political departments of the government
to fix the dates; and, for obvious reasons, those of the executive
department, which may be, and, in fact, was, at the commencement of
hostilities, obliged to act during the recess of Congress, must be
taken. The proclamation of intended blockade by the President may
therefore be assumed as marking the first of these dates, and the
proclamation that the war had closed, as marking the second."[1226]


The Power To Raise and Maintain Armed Forces


PURPOSE OF SPECIFIC GRANTS

The clauses of the Constitution which give Congress authority "to raise
and support armies, to provide and maintain a navy" and so forth, were
not inserted for the purpose of endowing the National Government with
power to do these things, but rather to designate the department of
government which should exercise such powers. Moreover, they permit
Congress to take measures essential to the national defense in time of
peace as well as during a period of actual conflict. That these
provisions grew out of the conviction that the Executive should be
deprived of the "sole power of raising and regulating fleets and armies"
which Blackstone attributed to the King under the British
Constitution,[1227] was emphasized by Story in his Commentaries. He
wrote: "Our notions, indeed, of the dangers of standing armies, in time
of peace, are derived in a great measure from the principles and
examples of our English ancestors. In England, the King possessed the
power of raising armies in the time of peace according to his own good
pleasure. And this prerogative was justly esteemed dangerous to the
public liberties. Upon the revolution of 1688, Parliament wisely
insisted upon a bill of rights, which should furnish an adequate
security for the future. But how was this done? Not by prohibiting
standing armies altogether in time of peace; but (as has been already
seen) by prohibiting them _without the consent of Parliament_. This is
the very proposition contained in the Constitution; for Congress can
alone raise armies; and may put them down, whenever they choose."[1228]


THE TIME LIMIT ON APPROPRIATIONS FOR THE ARMY

Prompted by the fear of standing armies to which Story alluded, the
framers inserted the limitation that "no appropriation of money to that
use shall be for a longer term than two years." In 1904 the question
arose whether this provision would be violated if the Government
contracted to pay a royalty for use of a patent in constructing guns and
other equipment where the payments were likely to continue for more than
two years. Solicitor-General Hoyt ruled that such a contract would be
lawful; that the appropriations limited by the Constitution "are those
only which are to raise and support armies in the strict sense of the
word 'support,' and that the inhibition of that clause does not extend
to appropriations for the various means which an army may use in
military operations, or which are deemed necessary for the common
defense, * * *"[1229] Relying on this earlier opinion, Attorney
General Clark ruled in 1948 that there was "no legal objection to a
request to the Congress to appropriate funds to the Air Force for the
procurement of aircraft and aeronautical equipment to remain available
until expended."[1230]


ESTABLISHMENT OF THE AIR FORCE

By the National Security Act of 1947[1231] there was established within
the National Military Establishment "an executive department to be known
as the Department of the Air Force" which was made coordinate with the
Departments of the Army and the Navy. Shortly after the passage of this
Act a Joint Resolution was offered in the House of Representatives,
proposing an amendment to the Constitution whereby Congress would be
authorized to "provide and maintain an Air Force and to make rules for
the government and regulation thereof," and the President would be
designated as Commander in Chief of the Air Force.[1232] Apparently in
the belief that the broad sweep of the war power warranted the creation
of the Air Force, without a constitutional amendment, Congress took no
action on this proposal.


CONSCRIPTION

The constitutions adopted during the Revolutionary War by at least nine
of the States sanctioned compulsory military service.[1233] Towards the
end of the War of 1812, conscription of men for the army was proposed by
James Monroe, then Secretary of War, but opposition developed and peace
came before the bill could be enacted.[1234] In 1863 a compulsory draft
law was adopted and put into operation without being challenged in the
federal courts.[1235] Not so the Selective Service Act of 1917. This
measure was attacked on the grounds that it tended to deprive the States
of the right to "a well-regulated militia," that the only power of
Congress to exact compulsory service was the power to provide for
calling forth the militia for the three purposes specified in the
Constitution, which did not comprehend service abroad, and finally that
the compulsory draft imposed involuntary servitude in violation of the
Thirteenth Amendment. The Supreme Court rejected all of these
contentions. It held that the powers of the States with respect to the
militia were exercised in subordination to the paramount power of the
National Government to raise and support armies, and that the power of
Congress to mobilize an army was distinct from its authority to provide
for calling the militia and was not qualified or in any wise limited
thereby.[1236] Before the United States entered the first World War, the
Court had anticipated the objection that compulsory military service
would violate the Thirteenth Amendment and had answered it in the
following words: "It introduced no novel doctrine with respect of
services always treated as exceptional, and certainly was not intended
to interdict enforcement of those duties which individuals owe to the
State, such as services in the army, militia, on the jury, etc. The
great purpose in view was liberty under the protection of effective
government, not the destruction of the latter by depriving it of
essential powers."[1237] Accordingly, in the Selective Draft Law
Cases[1238] it dismissed the objection under that amendment as a
contention that was "refuted by its mere statement."[1239]


CARE OF ARMED FORCES

Congress has a plenary and exclusive power to determine the age at which
a soldier or seaman shall be received, the compensation he shall be
allowed and the service to which he shall be assigned. This power may be
exerted to supersede parents' control of minor sons who are needed for
military service. Where the statute which required the consent of
parents for enlistment of a minor son did not permit such consent to be
qualified, their attempt to impose a condition that the son carry war
risk insurance for the benefit of his mother was not binding on the
Government.[1240] Since the possession of government insurance payable
to the person of his choice, is calculated to enhance the morale of the
serviceman, Congress may permit him to designate any beneficiary he
desires, irrespective of State law, and may exempt the proceeds from the
claims of creditors.[1241] To safeguard the health and welfare of the
armed forces, Congress may authorize the suppression of houses of ill
fame in the vicinity of the places where such forces are
stationed.[1242]


TRIAL AND PUNISHMENT OF OFFENSES

Under its power to make rules for the Government and regulation of the
land and naval forces, Congress may provide for the trial and punishment
of military and naval offenses in the manner practiced by civilized
nations. This authority is independent of the judicial power conferred
by article III.[1243] "Cases arising in the land and naval forces" are
expressly excepted from the provision of the Fifth Amendment requiring
presentment by a grand jury for capital or infamous and by implication
they are also excepted from Amendment VI,[1244] which relates to the
trial of criminal offenses. Also the Fifth Amendment's provision against
double-jeopardy apparently does not apply to military courts.[1245] A
statute which provided that offenses not specifically mentioned therein
should be punished "according to the laws and customs of such cases at
sea" was held sufficient to give a naval court-martial jurisdiction to
try a seaman of the United States Navy for the unspecified offense of
attempted desertion.[1246] In _habeas corpus_ proceedings a court can
consider only whether the military tribunal had jurisdiction to act in
the case under consideration.[1247] The acts of a court-martial, within
the scope of its jurisdiction and duty, cannot be controlled or reviewed
in the civil courts, by a writ of prohibition or otherwise.[1248]


War Legislation


THE REVOLUTIONARY WAR LEGISLATION

The American Revolution affords many precedents for extensive and
detailed regulation of the nation's economy in time of war. But since
the resolves of Congress under the Articles of Confederation were in
practical effect mere recommendations to the State legislatures, it was
the action of the latter which made these policies effective. On
November 22, 1777, for example, Congress recommended to the States that
they take steps "to regulate and ascertain the price of labour,
manufactures, [and] internal produce."[1249] A month later the same body
further recommended "to the respective legislatures of the United
States, forthwith to enact laws, appointing suitable persons to seize
and take, for the use of the continental army of the said States, all
woolen cloths, blankets, linens, shoes, stockings, hats, and other
necessary articles of clothing, * * *"[1250] Responding to such
appeals, or acting on their own initiative, the State legislatures
enacted measure after measure which entrenched upon the normal life of
the community very drastically. Laws were passed forbidding the
distillation of whiskey and other spirits in order to conserve grain
supplies;[1251] fixing prices of labor and commodities, sometimes in
greatest detail;[1252] levying requisitions upon the inhabitants for
supplies needed by the army;[1253] and so on. In one instance a statute
authorized the erection of an arms manufactory for the United
States;[1254] in another, Negro Slaves were impressed for labor on
fortifications.[1255] The fact that all this legislation came from the
State legislatures whereas the war power was attributed to the "United
States in Congress assembled" served to obscure the fact that the
former was really an outgrowth of the latter.


CIVIL WAR LEGISLATION

The most pressing economic problem of the Civil War was that of finance.
When Congress found itself unable to raise money to pay the soldiers in
the field, it authorized the issuance of Treasury notes which, although
not redeemable in specie, were made legal tender in payment of private
debts. Upon its first consideration of this measure, the Supreme Court
held it unconstitutional. It concluded that even if the circulation of
such notes was facilitated by giving them the quality of legal tender,
that result did not suffice to make the expedient an appropriate and
plainly adapted means for the execution of the power to declare and
carry on war.[1256] Three of the seven Justices then constituting the
Court dissented from this decision,[1257] and it was reversed within a
little more than a year, after two vacancies in the membership of the
Court had been filled. One of the grounds relied upon by the new
majority to sustain the statute was that the exigencies of war justified
its enactment under the necessary and proper clause.[1258]


WORLD WAR I LEGISLATION

In meeting the strain which World War I put on our national resources of
men and material, the economic activities of the people were directed or
restricted by the Government on a scale previously unparalleled. The
most sweeping measure of control was the Lever Food and Fuel Control
Act,[1259] which authorized the President to regulate by license the
importation, manufacture, storage, mining or distribution of
necessaries; to requisition foods, feeds, and fuels; to take over and
operate factories, packinghouses, pipelines, mines or other plants; to
fix a minimum price for wheat; to limit, regulate or prohibit the use of
food materials in the production of alcoholic beverages; and to fix the
price of coal and coke and to regulate the production, sale and
distribution thereof. Other statutes clothed him with power to determine
priority in car service,[1260] to license trade with the enemy and his
allies,[1261] and to take over and operate the rail and water
transportation system,[1262] and the telephonic and telegraphic
communication systems,[1263] of the country.


WORLD WAR II LEGISLATION

Several of these World War I measures were still on the statute books
when World War II broke out. Moreover, in the period of preparation
preceding the latter, Congress had enacted the Priorities Act of May 31,
1941[1264] which gave the President power to allocate any material where
necessary to facilitate the defense effort. By the Second War Powers
Act,[1265] passed early in 1942, the authority to allocate materials was
extended to facilities. These two acts furnished the statutory
foundation for the extensive system of consumer rationing administered
by the Office of Price Administration, as well as for the comprehensive
control of industrial materials and output which was exercised by the
War Production Board. Under the Emergency Price Control Act[1266] the
Office of Price Administration regulated the price of almost all
commodities, as well as the rentals for housing accommodations in scores
of defense rental areas. The War Labor Disputes Act[1267] permitted the
President to commandeer plants which were closed by strikes.


MOBILIZATION OF INDUSTRIAL RESOURCES

While the validity of several of the measures just reviewed was assailed
on one constitutional ground or another, the general power of Congress
to regulate their subject matter in time of war was not disputed. Not
until the Government sought to recover excessive profits realized on war
contracts did the Supreme Court have occasion to affirm the broad
authority of the National Government to mobilize the industrial
resources of the nation in time of war. Using the power of Congress to
conscript men for the armed forces as a measure of its power to regulate
industry, the Court sustained the legislation, saying: "The
Renegotiation Act was developed as a major wartime policy of Congress
comparable to that of the Selective Service Act. The authority of
Congress to authorize each of them sprang from its war powers. * * *
With the advent of * * * [global] warfare, mobilized property in the
form of equipment and supplies became as essential as mobilized
manpower. Mobilization of effort extended not only to the uniformed
armed services but to the entire population. Both Acts were a form of
mobilization. The language of the Constitution authorizing such
measures is broad rather than restrictive. * * * [It] * * * places
emphasis upon the supporting as well as upon the raising of armies. The
power of Congress as to both is inescapably express, not merely
implied."[1268]


DELEGATION OF LEGISLATIVE POWER IN WARTIME

While insisting that, "in peace or in war it is essential that the
Constitution be scrupulously obeyed, and particularly that the
respective branches of the Government keep within the powers assigned to
each,"[1269] the Supreme Court has recognized that in the conduct of a
war delegations of power may be valid which would not be admissible in
other circumstances. The cases in which this issue has been raised have
been few in number. In one, the Selective Draft Law cases,[1270] the
objection was dismissed without discussion. In a second, the
price-fixing authority exercised by the Office of Price Administration
during the second world war, was, on the issue of delegation of power,
sustained by reference to peace time precedents.[1271] Where the war
power has been the basis of decision, two different theories concerning
its significance can be recognized. The first is that since the war
power is an inherent power shared by the legislative and executive
departments rather than an enumerated power granted to the former,
Congress does not delegate _legislative_ power when it authorizes the
President to exercise the war power in a prescribed manner. Opposed to
this is the view that the right of Congress to delegate power to the
President is limited in this as in other cases but that where the
validity of the delegation depends upon whether or not too great a
latitude of discretion has been conferred upon the Executive, the
existence of a state of war is a factor to be considered in determining
whether the delegation in the particular case is necessary and hence
permissible.

The idea that a delegation of discretion in the exercise of the war
power stands on a different footing than delegation of authority to levy
a tax is implicit in Justice Bradley's opinion in Hamilton _v._
Dillin.[1272] The plaintiffs in that case contended that the sum they
were required to pay for the privileges of buying cotton in the South
was a tax, which, since it was imposed by the Secretary of the Treasury,
was invalid because the taxing power was not susceptible of delegation
to the Executive Department. To this argument the Court replied: "It is
hardly necessary, under the view we have taken of the character of the
regulations in question, * * *, to discuss the question of the
constitutionality of the act of July 13th, 1861, regarded as authorizing
such regulations. * * *, the power of the Government to impose such
conditions upon commercial intercourse with an enemy in time of war
* * * does not belong to the same category as the power to levy and
collect taxes, duties, and excises. It belongs to the war powers of the
Government * * *."[1273]


The Mergence of Legislative and Executive in Wartime

Both theories receive countenance in different passages in the opinion
of Chief Justice Stone in Hirabayashi _v._ United States.[1274] In
disposing of the contention that the curfew imposed upon a citizen of
Japanese descent involved an invalid delegation of legislative power,
the Chief Justice said: "The question then is not one of Congressional
power to delegate to the President the promulgation of the Executive
Order, but whether, acting in cooperation, Congress and the Executive
have constitutional authority to impose the curfew restriction here
complained of. * * *, we conclude that it was within the constitutional
power of Congress and the executive arm of the Government to prescribe
this curfew order for the period under consideration and that its
promulgation by the military commander involved no unlawful delegation
of legislative power. * * * Where, as in the present case, the standard
set up for the guidance of the military commander, and the action taken
and the reasons for it, are in fact recorded in the military orders, so
that Congress, the courts and the public are assured that the orders, in
the judgment of the commander, conform to the standards approved by the
President and Congress, there is no failure in the performance of the
legislative function."[1275] He went on to say, however, that: "The
essentials of [the legislative] * * * function are the determination by
Congress of the legislative policy and its approval of a rule of conduct
to carry that policy into execution. The very necessities which attend
the conduct of military operations in time of war in this instance as in
many others preclude Congress from holding committee meetings to
determine whether there is danger, before it enacts legislation to
combat the danger."[1276]


Doctrine of Lichter _v._ United States

A similar ambiguity is found in Lichter _v._ United States,[1277] but on
the whole the opinion seems to espouse the second theory, as the
following excerpts indicate: "_A constitutional power implies a power of
delegation of authority under it sufficient to effect its
purposes_.--This power is especially significant in connection with
constitutional war powers under which the exercise of broad discretion
as to methods to be employed may be essential to an effective use of its
war powers by Congress. The degree to which Congress must specify its
policies and standards in order that the administrative authority
granted may not be an unconstitutional delegation of its own legislative
power is not capable of precise definition.[1278] * * * Thus, while the
constitutional structure and controls of our Government are our guides
equally in war and in peace, they must be read with the realistic
purposes of the entire instrument fully in mind. In 1942, in the early
stages of total global warfare, the exercise of a war power such as the
power 'To raise and support Armies, * * *' and 'To provide and maintain
a Navy; * * *,' called for the production by us of war goods in
unprecedented volume with the utmost speed, combined with flexibility of
control over the product and with a high degree of initiative on the
part of the producers. Faced with the need to exercise that power, the
question was whether it was beyond the constitutional power of Congress
to delegate to the high officials named therein the discretion contained
in the Original Renegotiation Act of April 28, 1942, and the amendments
of October 21, 1942. We believe that the administrative authority there
granted was well within the constitutional war powers then being put to
their predestined uses."[1279]


WAR POWERS IN TIME OF PEACE

To some indeterminate extent the power to wage war embraces the power to
prepare for it and the further power to deal with the problem of
adjustment after hostilities have ceased. In his Commentaries, Justice
Story wrote as follows with specific reference to the question of
preparation for war: "'It is important also to consider, that the surest
means of avoiding war is to be prepared for it in peace. * * * How could
a readiness for war in time of peace be safely prohibited, unless we
could in like manner prohibit the preparations and establishments of
every hostile nation? The means of security can be only regulated by the
means and the danger of attack. * * * It will be in vain to oppose
constitutional barriers to the impulse of self-preservation.'"[1280]
Authoritative judicial recognition of the power is found in Ashwander
_v._ Tennessee Valley Authority,[1281] where, in sustaining the power of
the Government to construct and operate Wilson Dam and the power plant
connected with it, pursuant to the National Defense Act of June 3,
1916,[1282] the Court said: "While the District Court found that there
is no intention to use the nitrate plants or the hydroelectric units
installed at Wilson Dam for the production of war materials in time of
peace, 'the maintenance of said properties in operating condition and
the assurance of an abundant supply of electric energy in the event of
war, constitute national defense assets.' This finding has ample
support."[1283]


Atomic Energy Act

By far the most significant example of legislation adopted at a time
when no actual "shooting war" was in progress, with the object of
providing for the national defense, is the Atomic Energy Act of
1946.[1284] That law establishes an Atomic Energy Commission of five
members which is empowered to conduct through its own facilities, or by
contracts with, or loans to private persons, research and developmental
activity relating to nuclear processes, the theory and production of
atomic energy and the utilization of fissionable and radioactive
materials for medical, industrial and other purposes. The act further
provides that the Commission shall be the exclusive owner of all
facilities (with minor exceptions) for the production of fissionable
materials; that all fissionable material produced shall become its
property; that it shall allocate such materials for research and
developmental activities, and shall license all transfer of source
materials. The Commission is charged with the duty of producing atomic
bombs, bomb parts, and other atomic military weapons at the direction of
the President. Patents relating to fissionable materials must be filed
with the Commission, the "just compensation" payable to the owners to be
determined by a Patent Compensation Board designated by the Commission
from among its employees.


POSTWAR LEGISLATION

The war power "is not limited to victories in the field. * * * It
carries with it inherently the power to guard against the immediate
renewal of the conflict, and to remedy the evils which have arisen from
its rise and progress."[1285] Accordingly, the Supreme Court held in
1871 that it was within the competence of Congress to deduct from the
period limited by statute for the bringing of an action the time during
which plaintiff had been unable to prosecute his suit in consequence of
the Civil War. This principle was given a much broader application after
the first world war in Hamilton _v._ Kentucky Distilleries and Wine
Co.,[1286] where the War Time Prohibition Act adopted after the signing
of the Armistice was upheld as an appropriate measure for increasing war
efficiency. It was conceded that the measure was valid when enacted,
since the mere cessation of hostilities did not end the war or terminate
the war powers of Congress. The plaintiff contended however that in
October 1919, when the suit was brought, the war emergency had in fact
passed, and that the law was therefore obsolete. Inasmuch as the treaty
of peace had not yet been concluded and other war activities had not
been brought to a close, the Court said it was "unable to conclude" that
the act had ceased to be valid. But in 1924 it held upon the facts that
we judicially know that the rent control law for the District of
Columbia, which had previously been upheld,[1287] had ceased to operate
because the emergency which justified it had come to an end.[1288] A
similar issue was present after World War II in Woods _v._ Miller,[1289]
where the Supreme Court reversed a decision of a lower court to the
effect that the authority of Congress to regulate rents by virtue of the
war power ended with the Presidential proclamation terminating
hostilities on December 31, 1946. This decision was coupled with a
warning that: "We recognize the force of the argument that the effects
of war under modern conditions may be felt in the economy for years and
years, and that if the war power can be used in days of peace to treat
all the wounds which war inflicts on our society, it may not only
swallow up all other powers of Congress but largely obliterate the Ninth
and the Tenth Amendments as well. There are no such implications in
today's decision."[1290] In 1948, a sharply divided Court further ruled
that the power which Congress has conferred upon the President to deport
enemy aliens in time of a declared war was not exhausted when the
shooting war stopped. Speaking for the majority of five, Justice
Frankfurter declared: "It is not for us to question a belief by the
President that enemy aliens who were justifiably deemed fit subjects for
internment during active hostilites [sic] do not lose their potency for
mischief during the period of confusion and conflict which is
characteristic of a state of war even when the guns are silent but the
peace of Peace has not come."[1291]


Private Rights in Wartime


ENEMY COUNTRY

Although, broadly speaking, the constitutional provisions designed for
the protection of individual rights are operative in war as well as in
peace, the incidents of war repeatedly give rise to situations in which
judicially enforceable constitutional restraints are inapplicable. In
the first place persons in enemy territory are entirely beyond the reach
of constitutional limitations. They are subject, in relation to the war
powers of the National Government, to the laws of war as interpreted and
applied by Congress and by the President as Commander in Chief. To the
question: "What is the law which governs an army invading an enemy's
country?" the Court gave the following answer in Dow _v._ Johnson:[1292]
"It is not the civil law of the invaded country; it is not the civil law
of the conquering country: it is military law,--the law of war,--and its
supremacy for the protection of the officers and soldiers of the army,
when in service in the field in the enemy's country, is as essential to
the efficiency of the army as the supremacy of the civil law at home,
and, in time of peace, is essential to the preservation of
liberty."[1293]


THEATRE OF MILITARY OPERATIONS

That substantially the same rule, resting on the same considerations,
applies in the field of active military operations, was assumed by all
members of the Court in Ex parte Milligan.[1294] There the Court held
that the trial by a military commission of a civilian charged with acts
of disloyalty committed in a part of the country which was remote from
the theatre of military operations, and in which the civil courts were
open and functioning, was invalid under the Fifth and Sixth Amendments.
Although unanimous in holding that the military tribunal lacked
jurisdiction to try the case, the Court divided, five-to-four, as to the
grounds of the decision. The point on which the Justices differed was
which department of the Government had authority to say with finality
what regions lie within the theatre of military operation. Claiming this
as a function of the courts, the majority held that the theatre of war
did not embrace an area in which the civil courts were open and
functioning.[1295] The minority argued that this was a question to be
determined by Congress.[1296] All rejected the argument of the
government that the President's determination was conclusive in the
absence of restraining legislation. A similar result was reached in
Duncan _v._ Kahanamoku[1297] where, upon an examination of the
circumstances existing in Hawaii after Pearl Harbor, a divided Court
found that the authority which Congress had granted to the Territorial
Governor to declare martial law "in case of rebellion or invasion, or
imminent danger thereof," did not warrant the trial of civilians by
military tribunals.


ENEMY PROPERTY

The position of enemy property was dealt with by Chief Justice Marshall
in the early case of Brown _v._ United States.[1298] Here it was held
that the mere declaration of war by Congress does not effect a
confiscation of enemy property situated within the territorial
jurisdiction of the United States, but the right of Congress by further
enactment to subject such property to confiscation was asserted in the
most positive terms. Being an exercise of the war powers of the
Government, such confiscation is not affected by the restrictions of the
Fifth and Sixth Amendments. Since it has no relation to the personal
guilt of the owner, it is immaterial whether the property belongs to an
alien, a neutral, or even to a citizen of the United States. The whole
doctrine of confiscation is built upon the foundation that it is an
instrument of coercion, which, by depriving an enemy of property within
the reach of his power, whether within his territory or without it,
impairs his ability to resist the confiscating government, while at the
same time it furnishes to that government means for carrying on the war.
Any property which the enemy can use, either by actual appropriation, or
by the exercise of control over the owner, no matter what his
nationality, is a proper subject of confiscation. Congress may provide
for immediate seizure of property which the President or his agent
determines to be enemy property, leaving the question of enemy ownership
to be settled later at the suit of a claimant. For these reasons the
Confiscation Act of 1862,[1299] and the Trading with the Enemy Act of
1917 and amendments thereto, were held to be within the power of
Congress to "make rules concerning captures on land and water."[1300]


PRIZES OF WAR

The power of Congress with respect to prizes is plenary; no one can have
any interest in prizes captured except by permission of Congress.[1301]
Nevertheless, since International Law is a part of our law, the Court
will administer it so long as it has not been modified by treaty or by
legislative or executive action. Thus, during the Civil War, the Court
found that the Confiscation Act of 1861, and the Supplementary Act of
1863, which, in authorizing the condemnation of vessels, made provision
for the protection of interests of loyal citizens, merely created a
municipal forfeiture and did not override or displace the law of prize.
It decided, therefore, that when a vessel was liable to condemnation
under either law, the government was at liberty to proceed under the
more stringent rules of International Law, with the result that the
citizen would be deprived of the benefit of the protective provisions of
the statute.[1302] Similarly, when Cuban ports were blockaded during the
Spanish-American War, the Court held, over the vigorous dissent of three
of its members, that the rule of International Law exempting unarmed
fishing vessels from capture was applicable in the absence of any treaty
provision, or other public act of the Government in relation to the
subject.[1303]


POLICE REGULATIONS; RENT CONTROL

In enforcing the requirement of due process of law in its modern
expanded sense of "reasonable law" the Court has recognized that a war
emergency may justify legislation which would otherwise be an
unconstitutional invasion of private rights. Shortly after the first
world war, it sustained, by a narrow margin, a rent control law for the
District of Columbia, which not merely limited the rents which might be
charged but which also gave the existing tenants the right to continue
in occupancy of their dwellings at their own option, provided they paid
rent and performed other stipulated conditions. The Court, while
conceding that ordinarily such legislation would transcend
constitutional limitations, declared that "a public exigency will
justify the legislature in restricting property rights in land to a
certain extent without compensation. * * * A limit in time, to tide over
a passing trouble, well may justify a law that could not be upheld as a
permanent change."[1304] During World War II an apartment house owner
who complained that the rentals allowed by the Office of Price
Administration did not afford a "fair return" on the property was told
by the Court that, "a nation which can demand the lives of its men and
women in the waging of * * * war is under no constitutional necessity of
providing a system of price control * * * which will assure each
landlord a 'fair return' on his property."[1305] Moreover, such rentals
may be established without a prior hearing because "national security
might not be able to afford the luxuries of litigation and the long
delays which preliminary hearings traditionally have entailed. * * *
Where Congress has provided for judicial review after the regulations or
orders have been made effective it has done all that due process under
the war emergency requires."[1306] The more specific clauses of the Bill
of Rights yield less readily, however, to the impact of a war emergency.
In United States _v._ Cohen Grocery Company,[1307] the Court held that a
statute which penalized the making of "'any unjust or unreasonable rate
or charge in handling * * * any necessaries,'" was void on the ground
that it set up no "ascertainable standard of guilt" and so was
"repugnant to the Fifth and Sixth Amendments * * * which require due
process of law and that persons accused of crime shall be adequately
informed of the nature and cause of the accusation."[1308]


PERSONAL LIBERTY IN WARTIME

That the power of Congress to punish seditious utterances in time of war
is limited by the First Amendment was assumed by the Supreme Court in
the series of cases[1309] in which it affirmed convictions for violation
of the Espionage Act of 1917.[1310] But in the famous opinion of Justice
Holmes in Schenck _v._ United States,[1311] it held that: "When a nation
is at war many things that might be said in time of peace are such a
hindrance to its effort that their utterance will not be endured so long
as men fight and that no Court could regard them as protected by any
constitutional right."[1312] A State also has power to make it unlawful
to advocate that citizens of the State should not assist in prosecuting
a war against public enemies of the United States.[1313] The most
drastic restraint of personal liberty imposed during World War II was
the detention and relocation of the Japanese residents of the Western
States, including those who were native-born citizens of the United
States. When various phases of this program were challenged, the Court
held that in order to prevent espionage and sabotage, the freedom of
movement of such persons could be restricted by a curfew order,[1314]
even by a regulation excluding them from a defined area,[1315] but that
a citizen of Japanese ancestry whose loyalty was concerned could not be
detained against her will in a relocation camp.[1316]


ALIEN ENEMIES

The status of alien enemies was first considered in connection with the
passage of the Alien Act of 1798,[1317] whereby the President was
authorized to deport any alien or to license him to reside within the
United States at any place to be designated by the President. Critics of
the measure conceded its constitutionality so far as enemy aliens were
concerned, because, as Madison wrote, "The Constitution having expressly
delegated to Congress the power to declare war against any nation, and,
of course, to treat it and all its members as enemies."[1318] The
substance of this early law was reenacted during the first world war.
Under it the President is authorized, in time of war, to prescribe "the
manner and degree of the restraint to which [alien enemies] shall be
subject and in what cases, and upon what security their residence shall
be permitted," or to provide for their removal from the United
States.[1319] This measure was held valid in Ludecke _v._ Watkins.[1320]


EMINENT DOMAIN

An often-cited dictum uttered shortly after the Mexican War asserted the
right of an owner to compensation for property destroyed to prevent its
falling into the hands of the enemy, or for that taken for public
use.[1321] In United States _v._ Russell,[1322] decided following the
Civil War, a similar conclusion was based squarely on the Fifth
Amendment, although the case did not necessarily involve the point.
Finally, in United States _v._ Pacific Railroad,[1323] also a Civil War
case, the Court held that the United States was not responsible for the
injury or destruction of private property by military operations, but
added that it did not have in mind claims for property of loyal citizens
which was taken for the use of the national forces. "In such cases," the
Court said, "it has been the practice of the government to make
compensation for the property taken. * * *, although the seizure and
appropriation of private property under such circumstances by the
military authorities may not be within the terms of the constitutional
clauses."[1324] Meantime, however, in 1874, a committee of the House of
Representatives, in an elaborate report on war claims growing out of the
Civil War, had voiced the opinion that the Fifth Amendment embodied the
distinction between a taking of property in the course of military
operations or other urgent military necessity, and other takings for war
purposes, and required compensation of owners in the latter class of
cases.[1325] In determining what constitutes just compensation for
property requisitioned for war purposes during World War II, the Court
has assumed that the Fifth Amendment is applicable to such
takings.[1326]


Clause 15. _The Congress shall have Power_ * * * To provide for calling
forth the Militia to execute the Laws of the Union, suppress
Insurrections and repel Invasions.

Clause 16. _The Congress shall have Power_ * * * 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.


The Militia Clauses


CALLING OUT THE MILITIA

The States as well as Congress may prescribe penalties for failure to
obey the President's call of the militia. They also have a concurrent
power to aid the National Government by calls under their own authority,
and in emergencies may use the militia to put down armed
insurrection.[1327] The Federal Government may call out the militia in
case of civil war; its authority to suppress rebellion is found in the
power to suppress insurrection and to carry on war.[1328] The act of
February 28, 1795,[1329] which delegated to the President the power to
call out the militia, was held constitutional.[1330] A militiaman who
refused to obey such a call was not "employed in the service of the
United States so as to be subject to the article of war," but was liable
to be tried for disobedience of the act of 1795.[1331]


REGULATION OF THE MILITIA

The power of Congress over the militia "being unlimited, except in the
two particulars of officering and training them, * * *, it may be
exercised to any extent that may be deemed necessary by Congress. * * *
The power of the State government to legislate on the same subjects,
having existed prior to the formation of the Constitution, and not
having been prohibited by that instrument, it remains with the States,
subordinate nevertheless to the paramount law of the General Government,
* * *"[1332] Under the National Defense Act of 1916,[1333] the militia,
which hitherto had been an almost purely State institution, was brought
under the control of the National Government. The term "militia of the
United States" was defined to comprehend "all able-bodied male citizens
of the United States and all other able-bodied males who have * * *
declared their intention to become citizens of the United States,"
between the ages of eighteen and forty-five. The act reorganized the
National Guard, determined its size in proportion to the population of
the several States, required that all enlistments be for "three years in
service and three years in reserve," limited the appointment of officers
to those who "shall have successfully passed such tests as to * * *
physical, moral and professional fitness as the President shall
prescribe," and authorized the President in certain emergencies to
"draft into the military service of the United States to serve therein
for the period of the war unless sooner discharged, any and all members
of the National Guard and National Guard Reserve," who thereupon should
"stand discharged from the militia."


Clause 17. _Congress shall have power_ * * * 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


The Seat of Government

The jurisdiction of the United States over the District of Columbia
vested on the first Monday of December, 1800.[1334] By the act of
February 27, 1801,[1335] the District was divided into two counties and
in the following year the city of Washington was erected into a
municipality.[1336] The present form of government dates from 1876; all
legislative powers with respect to District affairs are retained by
Congress, while an executive board of three commissioners vested with
ordinance powers is appointed by the President.[1337] As a municipal
corporation, the District has the legal capacity to sue and be
sued.[1338] But the District Commissioners are merely administrative
officers, having only the ministerial powers given them by statute;
accordingly they were found to have no power to submit a claim against
the District to arbitration.[1339]


NATURE AND EXTENT OF RIGHTS CEDED TO UNITED STATES

In ceding the territory which became the District of Columbia, both
Maryland and Virginia provided that the United States should not acquire
any right of property in the soil except by transfer by the individual
owner. This proviso was held not to prevent the Federal Government from
exercising the power of eminent domain within the District.[1340] Under
the agreement made between the original proprietors of the land on which
the city of Washington was laid out, and the Commissioners appointed by
the President to survey, define and locate the district for the seat of
government, the United States became the owner in fee of the streets of
the city although the trustees never carried out their agreement to
convey them.[1341] Both the right of dominion and of property of
navigable waters and of the soil under them in the District, which
originally had been granted by Charles I, King of England to the Lord
Proprietary of Maryland, and to which Maryland succeeded upon the
American Revolution, became vested in the United States by the cession
from Maryland.[1342]


RETROCESSION OF ALEXANDRIA COUNTY

Originally the District of Columbia embraced the maximum area permitted
by the Constitution. In 1846, however, Congress authorized a referendum
on the question of retroceding Alexandria County to Virginia, and
declared that jurisdiction should be relinquished to that State if a
majority of the voters in the county voted in favor of the change. The
proposal was approved, whereupon, without any further action by
Congress, Virginia declared the county annexed and resumed full
jurisdiction over it. Thirty years later, in a suit to recover taxes
paid to the State, the Supreme Court called the retrocession "a
violation of the Constitution" but held that since Congress had
recognized the transfer as a settled fact, a resident of the county was
estopped from challenging it.[1343]


CONTINUANCE OF STATE LAWS

Under the act of July 16, 1790,[1344] which provided for the
establishment of the seat of government, State laws were continued in
operation until Congress created a government for the District. The
Supreme Court intimated that this was "perhaps, only declaratory of a
principle which would have been in full operation without such
declaration."[1345] In 1801 Congress declared that the laws of Virginia
and Maryland "as they now exist, shall be and continue in force" in the
respective portions of the District ceded by those States.[1346] The
only effect of the cession upon individuals was to terminate their State
citizenship and the jurisdiction of the State governments over
them;[1347] contract obligations were not affected,[1348] and liens on
property for debt were continued.[1349]


STATUS OF THE DISTRICT TODAY

Chief Justice Marshall ruled in the early case of Hepburn _v._
Ellzey[1350] that the District of Columbia is not a State within the
meaning of the diversity of citizenship clause of article III. This view
was consistently adhered to for nearly a century and a half in the
interpretation of later acts of Congress regulating the jurisdiction of
federal courts.[1351] In 1940, however, Congress expressly authorized
those courts to take jurisdiction of nonfederal controversies between
residents of the District of Columbia and citizens of a State. By a
five-to-four decision that statute was held constitutional, but the
Justices who voted to sustain it were not in agreement as to the grounds
of the decision.[1352] Three found it to be an appropriate exercise of
the power of Congress to legislate for the District of Columbia without
reference to article III.[1353] Six members of the Court rejected this
theory, but two of the six joined in upholding the act on another ground
which seven of their brethren considered untenable,--namely, that
Hepburn _v._ Ellzey was erroneously decided and that the District of
Columbia should be deemed to be a "State" within the meaning of article
III, section 2.[1354]

It is not disputed that the District is a part of "the United States,"
and that its residents are entitled to the privilege of trial by jury,
whether in civil or criminal cases,[1355] and of presentment by a grand
jury.[1356] Legislation which is restrictive of the rights of liberty
and property in the District must find justification in facts adequate
to support like legislation by a State in the exercise of its police
power.[1357]


LEGISLATIVE POWER OVER DISTRICT OF COLUMBIA

Congress possesses over the District of Columbia the blended powers of a
local and national legislature.[1358] Even when legislating for the
District, Congress remains the legislature of the Union, with the result
that it may give its enactments nation-wide operations so far as is
"necessary and proper" in order to make them locally effective. As was
pointed out in Cohens _v._ Virginia,[1359] if a felon escapes from the
State in which the crime was committed, the government of such State
cannot pursue him into another State and there apprehend him, "but must
demand him from the executive power of that other State." On the other
hand, a felon escaping from the District of Columbia or any other place
subject to the exclusive power of Congress, may be apprehended by the
National Government anywhere in the United States. "And the reason,"
declared Chief Justice Marshall, "is, that Congress is not a local
legislature, but exercises this particular power, [of exclusive
legislation], like all its other powers, in its high character, as the
legislature of the Union."[1360]


TAXATION IN THE DISTRICT

Persons and property within the District of Columbia are subject to
taxation by Congress under both the first and seventeenth clauses of
this section. A general tax levied throughout the United States may be
applied to the District of Columbia upon the same conditions as
elsewhere;--e.g., if a direct tax, it must be levied in proportion to
the census.[1361] But in laying taxes for District purposes only,
"Congress, like any State legislature unrestricted by constitutional
provisions, may its discretion wholly exempt certain classes of property
from taxation, or may tax them at a lower rate than other
property."[1362] It is no impediment to the exercise of either power
that residents of the District lack the suffrage and have politically no
voice in the expenditure of the money raised by taxation.[1363]


DELEGATION OF LEGISLATIVE POWER TO MUNICIPAL OFFICERS

Congress may delegate to municipal authorities legislative functions
which are strictly local in character.[1364] It may confer upon them the
power to improve or repair streets, to assess adjacent property
therefor,[1365] and to regulate public markets.[1366] It may confirm
assessments previously made by the District government without authority
of law.[1367] But in Stoutenburgh _v._ Hennick,[1368] the Court held
that Congress would not, and did not intend to, delegate to the District
the power to impose a license tax on commercial agents who offered
merchandise for sale by sample, since such a license amounted to a
regulation of interstate commerce.


COURTS OF THE DISTRICT

In its capacity as a local legislature Congress may create courts for
the District of Columbia and may confer upon them powers and duties
which lie outside the judicial power vested in "constitutional" courts.
On appeal from an order of the District Public Utilities Commission, a
court for the District of Columbia may be empowered to modify
valuations, rates and regulations established by the Commission and to
make such orders as in its judgment the Commission should have made. But
inasmuch as the issuance of such orders is a legislative as
distinguished from a judicial function, the provision for an appeal from
them to the Supreme Court was held unconstitutional.[1369]

Despite the fact that Congress, acting under this clause, imposed
nonjudicial duties upon the Supreme Court and the Court of Appeals for
the District of Columbia, those tribunals were held to be constitutional
courts, established under article III, with the result that the
compensation of the judges thereof may not be diminished during their
continuance in office.[1370] Since the courts established for the
District are courts of the United States, their judgments stand upon the
same footing, so far as concerns the obligations created by them, as
domestic judgments of the States, wherever rendered and wherever sought
to be enforced.[1371]


Authority Over Places Purchased


"PLACES"

This clause has been broadly construed to cover all structures necessary
for carrying on the business of the National Government.[1372] It
includes post offices,[1373] a hospital and a hotel located in a
national park,[1374] and locks and dams for the improvement of
navigation.[1375] But it does not cover lands acquired for forests,
parks, ranges, wild life sanctuaries or flood control.[1376]
Nevertheless the Supreme Court has held that a State may convey, and
that Congress may accept, either exclusive or qualified jurisdiction
over property acquired within the geographical limits of a State, for
purposes other than those enumerated in Clause 17.[1377]

After exclusive jurisdiction over lands within a State has been ceded to
the United States, Congress alone has the power to punish crimes
committed within the ceded territory.[1378] Private property located
thereon is not subject to taxation by the State,[1379] nor can State
statutes enacted subsequent to the transfer have any operation
therein.[1380] But the local laws in force at the date of cession which
are protective of private rights continue in force until abrogated by
Congress.[1381]


DURATION OF FEDERAL JURISDICTION

A State may qualify its cession of territory by a condition that
jurisdiction shall be retained by the United States only so long as the
place is used for specified purposes.[1382] Such a provision operates
prospectively and does not except from the grant that portion of a
described tract which is then used as a railroad right of way.[1383] In
1892, the Court upheld the jurisdiction of the United States to try a
person charged with murder on a military reservation, over the objection
that the State had ceded jurisdiction only over such portions of the
area as were used for military purposes, and that the particular place
on which the murder was committed was used solely for farming. The Court
held that the character and purpose of the occupation having been
officially established by the political department of the government, it
was not open to the Court to inquire into the actual uses to which any
portion of the area was temporarily put.[1384] A few years later,
however, it ruled that the lease to a city, for use as a market, of a
portion of an area which had been ceded to the United States for a
particular purpose, suspended the exclusive jurisdiction of the United
States.[1385]

Recently the question arose whether the United States retains
jurisdiction over a place which was ceded to it unconditionally after it
has abandoned the use of the property for governmental purposes and
entered into a contract for the sale thereof to private persons.
Minnesota asserted the right to tax the equitable interest of the
purchaser in such land, and the Supreme Court upheld its right to do so.
The majority assumed that "the Government's unrestricted transfer of
property to nonfederal hands is a relinquishment of the exclusive
legislative power."[1386] In separate concurring opinions Chief Justice
Stone and Justice Frankfurter reserved judgment on the question of
territorial jurisdiction.[1387]


RESERVATION OF JURISDICTION BY STATES

For more than a century the Supreme Court kept alive, by repeated
dicta,[1388] the doubt expressed by Justice Story "whether Congress are
by the terms of the Constitution, at liberty to purchase lands for
forts, dockyards, etc., with the consent of a State legislature, where
such consent is so qualified that it will not justify the 'exclusive
legislation' of Congress there. It may well be doubted if such consent
be not utterly void."[1389] But when the issue was squarely presented in
1937, the Court ruled that where the United States purchases property
within a State with the consent of the latter, it is valid for the State
to convey, and for the United States to accept, "concurrent
jurisdiction" over such land, the State reserving to itself the right to
execute process "and such other jurisdiction and authority over the same
as is not inconsistent with the jurisdiction ceded to the United
States."[1390] The holding logically renders the second half of Clause
17 superfluous. In a companion case, the Court ruled further that even
if a general State statute purports to cede exclusive jurisdiction, such
jurisdiction does not pass unless the United States accepts it.[1391]


Clause 18. _The Congress shall have Power_ * * * 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.


The Coefficient or Elastic Clause


SCOPE OF INCIDENTAL POWERS

That this clause is an enlargement, not a constriction, of the powers
expressly granted to Congress, that it enables the lawmakers to select
any means reasonably adapted to effectuate those powers, was established
by Marshall's classic opinion in McCulloch _v._ Maryland.[1392] "Let the
end be legitimate," he wrote, "let it be within the scope of the
Constitution, and all means which are appropriate, which are plainly
adapted to that end, which are not prohibited, but consist with the
letter and spirit of the Constitution, are constitutional."[1393]
Moreover, this provision gives Congress a share in the responsibilities
lodged in other departments, by virtue of its right to enact legislation
necessary to carry into execution all powers vested in the National
Government. Conversely, where necessary for the efficient execution of
its own powers, Congress may delegate some measure of legislative power
to other departments.[1394]


OPERATION OF COEFFICIENT CLAUSE

Practically every power of the National Government has been expanded in
some degree by the coefficient clause. Under its authority Congress has
adopted measures requisite to discharge the treaty obligations of the
nation;[1395] it has organized the federal judicial system and has
enacted a large body of law defining and punishing crimes. Effective
control of the national economy has been made possible by the authority
to regulate the internal commerce of a State to the extent necessary to
protect and promote interstate commerce.[1396] Likewise the right of
Congress to utilize all known and appropriate means for collecting the
revenue, including the distraint of property for Federal taxes,[1397]
and its power to acquire property needed for the operation of the
government by the exercise of the power of eminent domain,[1398] have
greatly extended the range of national power. But the widest application
of the necessary and proper clause has occurred in the field of monetary
and fiscal controls. Inasmuch as the various specific powers granted by
article I, section 8, do not add up to a general legislative power over
such matters, the Court has relied heavily upon this clause in
sustaining the comprehensive control which Congress has asserted over
this subject.[1399]


DEFINITION AND PUNISHMENT OF CRIMES

Although the only crimes which Congress is expressly authorized to
punish are piracies, felonies on the high seas, offenses against the law
of nations, treason and counterfeiting of the securities and current
coin of the United States, its power to create, define and punish crimes
and offenses whenever necessary to effectuate the objects of the Federal
Government is universally conceded.[1400] Illustrative of the offenses
which have been punished under this power are the alteration of
registered bonds;[1401] the bringing of counterfeit bonds into the
country;[1402] conspiracy to injure prisoners in custody of a United
States marshal;[1403] impersonation of a federal officer with intent to
defraud;[1404] conspiracy to injure a citizen in the free exercise or
enjoyment of any right or privilege secured by the Constitution or laws
of the United States;[1405] the receipt by government officials of
contributions from government employees for political purposes;[1406]
advocating, etc., the overthrow of the Government by force.[1407] Part I
of Title 18 of the United States Code comprises more than 500 sections
defining penal offenses against the United States.


CHARTERING OF BANKS

As an appropriate means for executing "the great powers, to lay and
collect taxes; to borrow money; to regulate commerce; to declare and
conduct a war; and to raise and support armies * * *" Congress may
incorporate banks and kindred institutions.[1408] Moreover, it may
confer upon them private powers which, standing alone, have no relation
to the functions of the Federal Government, if those privileges are
essential to the effective operation of such corporations.[1409] Where
necessary to meet the competition of State banks, Congress may authorize
national banks to perform fiduciary functions, even though, apart from
the competitive situation, federal instrumentalities might not be
permitted to engage in such business.[1410] The Court will not undertake
to assess the relative importance of the public and private functions of
a financial institution which Congress has seen fit to create. It
sustained the act setting up the Federal Farm Loan Banks to provide
funds for mortgage loans on agricultural land against the contention
that the right of the Secretary of the Treasury, which he had not
exercised, to use these banks as depositaries of public funds, was
merely a pretext for chartering these banks for private purposes.[1411]


CURRENCY REGULATIONS

Reinforced by the necessary and proper clause, the powers "'to lay and
collect taxes, to pay the debts and provide for the common defence and
general welfare of the United States,' and 'to borrow money on the
credit of the United States and to coin money and regulate the value
thereof * * *'";[1412] have been held to give Congress virtually
complete control over money and currency. A prohibitive tax on the
notes of State banks;[1413] the issuance of treasury notes impressed
with the quality of legal tender in payment of private debts[1414] and
the abrogation of clauses in private contracts which called for payment
in gold coin,[1415] were sustained as appropriate measures for carrying
into effect some or all of the foregoing powers.


POWER TO CHARTER CORPORATIONS

In addition to the creation of banks, Congress has been held to have
authority to charter a railroad corporation,[1416] or a corporation to
construct an interstate bridge,[1417] as instrumentalities for promoting
commerce among the States, and to create corporations to manufacture
aircraft[1418] or merchant vessels[1419] as incidental to the war power.


COURTS AND JUDICIAL PROCEEDINGS

Inasmuch as the Constitution "delineated only the great outlines of the
judicial power * * *, leaving the details to Congress, * * * The
distribution and appropriate exercise of the judicial power must * * *
be made by laws passed by Congress, * * *"[1420] As a necessary and
proper provision for the exercise of the jurisdiction conferred by
article III, section 2 Congress may direct the removal from a State to a
federal court of a criminal prosecution against a federal officer for
acts done under color of federal law,[1421] and may authorize the
removal before trial of civil cases arising under the laws of the United
States.[1422] It may prescribe the effect to be given to judicial
proceedings of the federal courts,[1423] and may make all laws necessary
for carrying into execution the judgments of federal courts.[1424] When
a territory is admitted as a State, Congress may designate the Court to
which the records of the territorial courts shall be transferred, and
may prescribe the mode for enforcement and review of judgments rendered
by those courts.[1425] In the exercise of other powers conferred by the
Constitution, apart from article III, Congress may create legislative
courts and "clothe them with functions deemed essential or helpful in
carrying those powers into execution."[1426]


SPECIAL ACTS CONCERNING CLAIMS

This clause enables Congress to pass special laws to require other
departments of the Government to prosecute or adjudicate particular
claims, whether asserted by the Government itself or by private persons.
In 1924,[1427] Congress adopted a Joint Resolution directing the
President to cause suit to be instituted for the cancellation of certain
oil leases alleged to have been obtained from the Government by fraud,
and to prosecute such other actions and proceedings, civil and criminal,
as were warranted by the facts. This resolution also authorized the
appointment of special counsel to have charge of such litigation.
Private acts providing for a review of an order for compensation under
the Longshoreman's and Harbor Workers' Compensation Act,[1428] or
conferring jurisdiction upon the Court of Claims to hear and determine
certain claims of a contractor against the Government, in conformity
with directions given by Congress, after that court had denied recovery
on such claims, have been held constitutional.[1429]


MARITIME LAW

Congress may implement the admiralty and maritime jurisdiction conferred
upon the federal courts by revising and amending the maritime law which
existed at the time the Constitution was adopted, but in so doing, it
cannot go beyond the reach of that jurisdiction.[1430] This power cannot
be delegated to the States; hence acts of Congress which purported to
make State Workmen's Compensation laws applicable to maritime cases were
held unconstitutional.[1431]


Section 9. Clause 1. 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.


Powers Denied to Congress


GENERAL PURPOSE OF THE SECTION

This section of the Constitution (containing eight clauses restricting
or prohibiting legislation affecting the importation of slaves, the
suspension of the writ of _habeas corpus_, the enactment of bills of
attainder or _ex post facto_ laws, the levying of taxes on exports, the
granting of preference to ports of one State over another, the granting
of titles of nobility, etc.,) is devoted to restraints upon the power of
Congress and of the National Government,[1432] and in no respect affects
the States in the regulation of their domestic affairs.[1433]

The above clause, which sanctioned the importation of slaves by the
States for twenty years after the adoption of the Constitution, when
considered with the section requiring escaped slaves to be returned to
their masters (art. IV, § 1, cl. 3), was held by Chief Justice Taney in
Scott _v._ Sanford,[1434] to show conclusively that such persons and
their descendants were not embraced within the term "citizen" as used in
the Constitution. Today is interesting only as an historical curiosity.


Clause 2. 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.


HABEAS CORPUS


Purpose of the Writ

This section, which restricts only the Federal Government and not the
States,[1435] is the only place in the Constitution where the writ of
_habeas corpus_ is mentioned. The framers took for granted that the
courts of the United States would be given jurisdiction to issue this,
the greatest of the safeguards of personal liberty embodied in the
common law, and the Judiciary Act of 1789[1436] provided for the
issuance of the writ according to "the usages and principles of law." At
common law the purpose of such a proceeding was to obtain the
liberation of persons who were imprisoned without just cause.[1437]
While the Supreme Court conceded at an early date that the authority of
the federal courts to entertain petitions for _habeas corpus_ derived
solely from acts of Congress,[1438] a narrow majority recently asserted
the right to expand the scope of the writ by judicial interpretation and
to sanction its use for a purpose unknown to the common law, i.e., to
bring a prisoner into court to argue his own appeal. Speaking for the
majority Justice Murphy declared that: "However, we do not conceive that
a circuit court of appeals, in issuing a writ of _habeas corpus_ under
§ 262 of the Judicial Code, is necessarily confined to the precise forms
of that writ in vogue at the common law or in the English judicial
system. Section 262 says that the writ must be agreeable to the usages
and principles of 'law,' a term which is unlimited by the common law or
the English law. And since 'law' is not a static concept, but expands
and develops as new problems arise, we do not believe that the forms of
the _habeas corpus_ writ authorized by § 262 are only those recognized
in this country in 1789, when the original Judiciary Act containing the
substance of this section came into existence."[1439]


Errors Which May Be Corrected on Habeas Corpus

The writ of _habeas corpus_ provides a remedy for jurisdictional and
constitutional errors at the trial without limit as to time.[1440] It
may be used to correct errors of that order made by military as well as
by civil courts.[1441] Under the common law and the Act 31 Car. II c. 2
(1679), where a person was detained pursuant to a conviction by a court
having jurisdiction of the subject matter, _habeas corpus_ was available
only if a want of jurisdiction appeared on the face of the record of the
Court which convicted him. A showing in a return to a writ that the
prisoner was held under final process based upon a judgment of a court
of competent jurisdiction closed the inquiry.[1442] Under the Judiciary
Act of 1789[1443] the same rule obtained.[1444] But by the act of
February 5, 1867,[1445] Congress extended the writ to all persons
restrained of their liberty in violation of the Constitution or a law or
treaty of the United States, and required the Court to ascertain the
facts and to "dispose of the party as law and justice require." This
gave the prisoner a right to have a judicial inquiry in a court of the
United States into the very truth and substance of the causes of his
detention. The Supreme Court has said that there is "no doubt of the
authority of the Congress to thus liberalize the common law procedure on
_habeas corpus_ * * *" .[1446]


Habeas Corpus Not a Substitute for Appeal

Since the writ of _habeas corpus_ is appellate in nature, Congress may
confer jurisdiction to issue it upon the Supreme Court as well as upon
the inferior federal courts.[1447] The proceeding may not, however, be
used as a substitute for an appeal or writ of error.[1448] But if
special circumstances make it advantageous to use this writ in aid of a
just disposition of a cause pending on appeal it may be used for that
purpose.[1449] Where facts dehors the record, which are not open to
consideration upon appeal, are alleged to show a denial of
constitutional rights, a judicial hearing must be granted to ascertain
the truth or falsity of the allegations.[1450]


Issuance of the Writ

On application for a writ of _habeas corpus_, the Court may either issue
the writ, and, on the return, dispose of the case, or it may waive the
issuing of the writ and consider whether, upon the facts presented in
the petition, the prisoner, if brought before it, could be
discharged.[1451] The proceeding may not be used to secure an
adjudication of a question which, if determined in the prisoner's favor,
could not result in his immediate release.[1452] A discharge of a
prisoner on _habeas corpus_ is granted only in the exercise of a sound
judicial discretion.[1453] While the strict doctrine of _res judicata_
does not apply to this proceeding,[1454] the Court may, in its
discretion, dismiss a petition for _habeas corpus_ where the ground on
which it is sought had been alleged in a prior application, but the
evidence to support it had been unjustifiably withheld for use on a
second attempt if the first failed.[1455] Where the Government did not
deny the allegation in a prisoner's fourth petition for _habeas corpus_,
but sought dismissal of the proceedings on the ground that the prisoner
had abused the writ, the prisoner was held to be entitled to a hearing
to determine whether the charge of abusive use of the writ was well
founded.[1456]


Suspension of the Privilege

A critical question under this section is who determines with finality
whether the circumstances warrant suspension of the privilege of the
writ. In England the writ may be suspended only by Act of
Parliament,[1457] and in an early case Chief Justice Marshall asserted
that the decision as to when public safety calls for this drastic action
depends "on political considerations, on which the legislature is to
decide."[1458] At the beginning of the Civil War Lincoln authorized the
Commanding General of the Army of the United States to suspend the writ
along any military line between Philadelphia and Washington.[1459] In Ex
parte Merryman,[1460] Chief Justice Taney strongly denounced the
President's action and reasserted the proposition that only Congress
could suspend the writ. Attorney General Bates promptly challenged
Taney's opinion. Noting that in Ex parte Bollman, Marshall did "not
speak of suspending the _privilege_ of the writ, but of suspending the
_powers vested in the Court_ by the act," he took the position that the
constitutional provision was itself the equivalent of an Act of
Parliament.[1461] Thereafter, by an express provision of the act of
March 3, 1863, Congress declared, "That, during the present rebellion,
the President of the United States, whenever, in his judgment, the
public safety may require it, is authorized to suspend the privilege of
the writ of _habeas corpus_ in any case throughout the United States, or
any part thereof."[1462] The validity of this statute was assumed in Ex
parte Milligan,[1463] but a narrow majority of the Court declared that
the suspension of the writ did not authorize the arrest of any one, but
simply denied to one arrested the privilege of the writ in order to
obtain his liberty.[1464]


Clause 3. No Bill of Attainder or ex post facto Law shall be passed.


BILLS OF ATTAINDER

Historically, the term "bills of attainder" was applied to "such special
acts of the legislature as inflict capital punishment upon persons
supposed to be guilty of high offences, such as treason and felony,
without any conviction in the ordinary course of judicial proceedings."
An act which inflicted a milder degree of punishment was called a bill
of pains and penalties.[1465] Within the meaning of the Constitution,
however, bills of attainder include bills of pains and penalties.[1466]
As interpreted by the Supreme Court, this clause prohibits all
legislative acts, "no matter what their form, that apply either to named
individuals or to easily ascertainable members of a group in such a way
as to inflict punishment on them without a judicial trial * * *"[1467]
Two acts of Congress--one which required attorneys practicing in the
federal courts to take an oath that they had never given aid to persons
engaged in hostility to the United States,[1468] and another which
prohibited the payment of compensation to certain named government
employees who have been charged with subversive activity,[1469]--have
been held unconstitutional on the ground that they amounted to bills of
attainder.


EX POST FACTO LAWS


Definition

At the time the Constitution was adopted, many persons understood the
terms _ex post facto_ laws, to "embrace all retrospective laws, or laws
governing or controlling past transactions, whether * * * of a civil or
a criminal nature."[1470] But in the early case of Calder _v._
Bull,[1471] the Supreme Court decided that the phrase, as used in the
Constitution, applies only to penal and criminal statutes. But although
it is inapplicable to retroactive legislation of any other kind,[1472]
the constitutional prohibition may not be evaded by giving a civil form
to a measure which is essentially criminal.[1473] Every law which makes
criminal an act which was innocent when done, or which inflicts a
greater punishment than the law annexed to the crime when committed, is
an _ex post facto_ law within the prohibition of the Constitution.[1474]
A prosecution under a temporary statute which was extended before the
date originally set for its expiration does not offend this provision
even though it is instituted subsequent to the extension of the
statute's duration for a violation committed prior thereto.[1475] Since
this provision has no application to crimes committed outside the
jurisdiction of the United States against the laws of a foreign country,
it is immaterial in extradition proceedings whether the foreign law is
_ex post facto_ or not.[1476]


What Constitutes Punishment

An act of Congress which prescribed as a qualification for practice
before the federal courts an oath that the attorney had not participated
in the Rebellion was found unconstitutional since it operated as a
punishment for past acts.[1477] But a statute which denied to
polygamists the right to vote in a territorial election, was upheld even
as applied to a person who had not practiced polygamy since the act was
passed, because the law did not operate as an additional penalty for the
offense of polygamy but merely defined it as a disqualification of a
voter.[1478] A deportation law authorizing the Secretary of Labor to
expel aliens for criminal acts committed before its passage is not _ex
post facto_ since deportation is not a punishment.[1479] Likewise an act
permitting the cancellation of naturalization certificates obtained by
fraud prior to the passage of the law was held not to impose a
punishment but simply to deprive the alien of his ill-gotten
privileges.[1480]


Change in Place or Mode of Trial

A change of the place of trial of an alleged offense after its
commission, is not an _ex post facto_ law. If no place of trial was
provided when the offense was committed, Congress may designate the
place of trial thereafter.[1481] A law which alters the rule of evidence
to permit a person to be convicted upon less or different evidence than
was required when the offense was committed is invalid,[1482] but a
statute which simply enlarges the class of persons who may be competent
to testify in criminal cases is not _ex post facto_ as applied to a
prosecution for a crime committed prior to its passage.[1483]


Clause 4. No Capitation, or other direct, Tax shall be laid, unless in
Proportion to the Census or Enumeration herein before directed to be
taken.


DIRECT TAXES


The Hylton Case

The crucial problem under this section is to distinguish "direct" from
other taxes. In its opinion in Pollock _v._ Farmers' Loan and Trust
Co., we find the Court declaring: "It is apparent * * * that the
distinction between direct and indirect taxation was well understood by
the framers of the Constitution and those who adopted it."[1484] Against
this confident dictum may be set the following brief excerpt from
Madison's Notes on the Convention: "Mr. King asked what was the precise
meaning of _direct_ taxation? No one answered."[1485] The first case to
come before the Court on this issue was Hylton _v._ United States,[1486]
which was decided early in 1796. Congress had levied, according to the
rule of uniformity, a specific tax upon all carriages, for the
conveyance of persons, which shall be kept by, or for any person, for
his own use, or to be let out for hire, or for the conveying of
passengers. In a fictitious statement of facts, it was stipulated that
the carriages involved in the case were kept exclusively for the
personal use of the owner and not for hire. The principal argument for
the constitutionality of the measure was made by Hamilton, who treated
it as an "excise tax,"[1487] while Madison both on the floors of
Congress and in correspondence attacked it as "direct" and so void,
inasmuch as it was levied without apportionment.[1488] The Court, taking
the position that the direct tax clause constituted in practical
operation an exception to the general taxing powers of Congress, held
that no tax ought to be classified as "direct" which could not be
conveniently apportioned, and on this basis sustained the tax on
carriages as one on their "use" and therefore an "excise." Moreover,
each of the judges advanced the opinion that the direct tax clause
should be restricted to capitation taxes and taxes on land, or that at
most, it might cover a general tax on the aggregate or mass of things
which generally pervade all the States, especially if an assessment
should intervene; while Justice Paterson, who had been a member of the
Federal Convention, testified to his recollection that the principal
purpose of the provision had been to allay the fear of the Southern
States lest their Negroes and lands should be subjected to a specific
tax.[1489]


From the Hylton to the Pollock Case

The result of the Hylton case was not challenged until after the Civil
War. A number of the taxes imposed to meet the demands of that war were
assailed during the postwar period as direct taxes, but without result.
The Court sustained successively as "excises" or "duties," a tax on an
insurance company's receipts for premiums and assessments;[1490] a tax
on the circulating notes of State banks,[1491] an inheritance tax on
real estate,[1492] and finally a general tax on incomes.[1493] In the
last case, the Court took pains to state that it regarded the term
"direct taxes" as having acquired a definite and fixed meaning-to-wit,
capitation taxes, and taxes on hand.[1494] Then, almost one hundred
years after the Hylton case, the famous case of Pollock _v._ Farmers'
Loan and Trust Company[1495] arose under the Income Tax Act of
1894.[1496] Undertaking to correct "a century of error" the Court held,
by a vote of five-to-four, that a tax on income from property was a
direct tax within the meaning of the Constitution and hence void because
not apportioned according to the census.


Restriction of the Pollock Decision

The Pollock decision encouraged taxpayers to challenge the right of
Congress to levy by the rule of uniformity numerous taxes which had
always been reckoned to be excises. But the Court evinced a strong
reluctance to extend the doctrine to such exactions. Purporting to
distinguish taxes levied "because of ownership" or "upon property as
such" from those laid upon "privileges,"[1497] it sustained as "excises"
a tax on sales on business exchanges;[1498] a succession tax which was
construed to fall on the recipients of the property transmitted, rather
than on the estate of the decedent,[1499] and a tax on manufactured
tobacco in the hands of a dealer, after an excise tax had been paid by
the manufacturer.[1500] Again, in Thomas _v._ United States,[1501] the
validity of a stamp tax on sales of stock certificates was sustained on
the basis of a definition of "duties, imposts and excises." These terms,
according to the Chief Justice, "were used comprehensively to cover
customs and excise duties imposed on importation, consumption,
manufacture and sale of certain commodities, privileges, particular
business transactions, vocations, occupations and the like."[1502] On
the same day it ruled, in Spreckels Sugar Refining Co. _v._
McClain,[1503] that an exaction denominated a special excise tax imposed
on the business of refining sugar and measured by the gross receipts
thereof, was in truth an excise and hence properly levied by the rule of
uniformity. The lesson of Flint _v._ Stone Tracy Co.[1504] is the same.
Here what was in form an income tax was sustained as a tax on the
privilege of doing business as a corporation, the value of the privilege
being measured by the income, including income from investments.
Similarly, in Stanton _v._ Baltic Mining Co.[1505] a tax on the annual
production of mines was held to be "independently of the effect of the
operation of the Sixteenth Amendment * * * not a tax upon property as
such because of its ownership, but a true excise levied on the results
of the business of carrying on mining operations."[1506]

A convincing demonstration of the extent to which the Pollock decision
had been whittled down by the time the Sixteenth Amendment was adopted
is found in Billings _v._ United States.[1507] In challenging an annual
tax assessed for the year 1909 on the use of foreign built yachts--a
levy not distinguishable in substance from the carriage tax involved in
the Hylton case as construed by the Supreme Court-counsel did not even
suggest that the tax should be classed as a direct tax. Instead, he
based his argument that the exaction constituted a taking of property
without due process of law upon the premise that it was an excise, and
the Supreme Court disposed of the case upon the same assumption.

In 1921 the Court cast aside the distinction drawn in Knowlton _v._
Moore between the right to transmit property on the one hand and the
privilege of receiving it on the other, and sustained an estate tax as
an excise. "Upon this point" wrote Justice Holmes for a unanimous court,
"a page of history is worth a volume of logic."[1508] This proposition
being established, the Court has had no difficulty in deciding that the
inclusion in the computation of the estate tax of property held as joint
tenants,[1509] or as tenants by the entirety,[1510] or the entire value
of community property owned by husband and wife,[1511] or the proceeds
of insurance upon the life of the decedent,[1512] did not amount to
direct taxation of such property. Similarly it upheld a graduated tax on
gifts as an excise, saying that it was "a tax laid only upon the
exercise of a single one of those powers incident to ownership, the
power to give the property owned to another."[1513] In vain did Justice
Sutherland, speaking for himself and two associates, urge that "the
right to give away one's property is as fundamental as the right to sell
it or, indeed, to possess it."[1514]


Miscellaneous

The power of Congress to levy direct taxes is not confined to the States
which are represented in that body. Such a tax may be levied in
proportion to population in the District of Columbia.[1515] A penalty
imposed for nonpayment of a direct tax is not a part of the tax itself
and hence is not subject to the rule of apportionment. Accordingly, the
Supreme Court sustained the penalty of fifty percent which Congress
exacted for default in the payment of the direct tax on land in the
aggregate amount of twenty million dollars which was levied and
apportioned among the States during the Civil War.[1516]


Clause 5. No Tax or Duty shall be laid on Articles exported from any
State.


TAXES ON EXPORTS

This prohibition applies only to the imposition of duties on goods by
reason of exportation.[1517] The word "export" signifies goods exported
to a foreign country, not to an unincorporated territory of the United
States.[1518] A general tax laid on all property alike, including that
intended for export, is not within the prohibition, if it is not levied
on goods in course of exportation nor because of their intended
exportation.[1519] Where the sale to a commission merchant for a foreign
consignee was consummated by delivery of the goods to an exporting
carrier, the sale was held to be a step in the exportation and hence
exempt from a general tax on sales of such commodity.[1520] The giving
of a bond for exportation of distilled liquor is not the commencement of
exportation so as to exempt from an excise tax spirits which were not
exported pursuant to such bond.[1521] A tax on the income of a
corporation derived from its export trade is not a tax on "articles
exported" within the meaning of the Constitution.[1522]


Stamp Taxes

A stamp tax imposed on foreign bills of lading,[1523] charter
parties,[1524] or marine insurance policies,[1525] is in effect a tax or
duty upon exports, and so void; but an act requiring the stamping of all
packages of tobacco intended for export in order to prevent fraud was
held not to be forbidden as a tax on exports.[1526]


Clause 6. 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.


THE "NO PREFERENCE" CLAUSE

The limitations imposed by this section were designed to prevent
preferences as between ports on account of their location in different
States. They do not forbid such discriminations as between individual
ports. Acting under the commerce clause, Congress may do many things
which benefit particular ports and which incidentally result to the
disadvantage of other ports in the same or neighboring States. It may
establish ports of entry, erect and operate lighthouses, improve rivers
and harbors, and provide structures for the convenient and economical
handling of traffic.[1527] A rate order of the Interstate Commerce
Commission which allowed an additional charge to be made for ferrying
traffic across the Mississippi to cities on the east bank of the river
was sustained over the objection that it gave an unconstitutional
preference to ports in Texas.[1528] Although there were a few early
intimations that this clause was applicable to the States as well as to
Congress,[1529] the Supreme Court declared emphatically in 1886 that
State legislation was unaffected by it.[1530] After more than a century
the Court confirmed, over the objection that this clause was offended,
the power which the First Congress had exercised[1531] in sanctioning
the continued supervision and regulation of pilots by the States.[1532]
Alaska is not deemed to be a State within the meaning of this
clause.[1533]


Clause 7. 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.


APPROPRIATIONS

This clause is a limitation upon the power of the executive department
and does not restrict Congress in appropriating moneys in the
Treasury.[1534] That body may recognize and pay a claim of an equitable,
moral or honorary nature. Where it directs a specific sum to be paid to
a certain person, neither the Secretary of the Treasury nor any court
has discretion to determine whether the person is entitled to receive
it.[1535] In making appropriations to pay claims arising out of the
Civil War, the Court held that it was lawful to provide that certain
persons, i.e., those who had aided the rebellion, should not be paid out
of the funds made available by the general appropriation, but that such
persons should seek relief from Congress.[1536] The Court has also
recognized that Congress has a wide discretion as to the extent to which
it shall prescribe details of expenditures for which it appropriates
funds and has approved the frequent practice of making general
appropriations of large amounts to be allotted and expended as directed
by designated government agencies. Citing as an example the act of June
17, 1902[1537] where all moneys received from the sale and disposal of
public lands in a large number of States and territories were set aside
as a special fund to be expended under the direction of the Secretary of
the Interior upon such projects as he determined to be practicable and
advisable for the reclamation of arid and semi-arid lands within those
States and territories, the Court declared: "The constitutionality of
this delegation of authority has never been seriously questioned."[1538]


PAYMENT OF CLAIMS

No officer of the Federal Government is authorized to pay a debt due
from the United States, whether reduced to judgment or not, without an
appropriation for that purpose.[1539] After the Civil War, a number of
controversies arose out of attempts by Congress to restrict the payment
of the claims of persons who had aided the Rebellion, but had thereafter
received a pardon from the President. The Supreme Court held that
Congress could not prescribe the evidentiary effect of a pardon in a
proceeding in the Court of Claims for property confiscated during the
Civil War,[1540] but that where the confiscated property had been sold
and the proceeds paid into the Treasury, a pardon did not of its own
force authorize the restoration of such proceeds.[1541] It was within
the competence of Congress to declare that the amounts due to persons
thus pardoned should not be paid out of the Treasury and that no general
appropriation should extend to their claims.[1542]


Clause 8. 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.


In 1871 the Attorney General of the United States ruled that: "A
minister of the United States abroad is not prohibited by the
Constitution from rendering a friendly service to a foreign power, even
that of negotiating a treaty for it, provided he does not become an
officer of that power, but the acceptance of a formal commission, as
minister plenipotentiary, creates an official relation between the
individual thus commissioned and the government which in this way
accredits him as its representative, which is prohibited by this clause
of the Constitution."[1543]


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.


Powers Denied to the States


TREATIES, ALLIANCES OR CONFEDERATIONS

At the time of the Civil War this clause was one of the provisions upon
which the Court relied in holding that the Confederation formed by the
seceding States could not be recognized as having any legal
existence.[1544] Today, its practical significance lies in the
limitations which it implies upon the power of the States to deal with
matters having a bearing upon international relations. In the early case
of Holmes _v._ Jennison,[1545] Chief Justice Taney invoked it as a
reason for holding that a State had no power to deliver up a fugitive
from justice to a foreign State. Recently the kindred idea that the
responsibility for the conduct of foreign relations rests exclusively
with the Federal Government prompted the Court to hold that, since the
oil under the three mile marginal belt along the California coast might
well become the subject of international dispute and since the ocean,
including this three mile belt, is of vital consequence to the nation in
its desire to engage in commerce and to live in peace with the world,
the Federal Government has paramount rights in and power over that belt,
including full dominion over the resources of the soil under the water
area.[1546] In Skiriotes _v._ Florida,[1547] the Court, on the other
hand, ruled that this clause did not disable Florida from regulating the
manner in which its own citizens may engage in sponge fishing outside
its territorial waters. Speaking for a unanimous Court, Chief Justice
Hughes declared: "When its action does not conflict with federal
legislation, the sovereign authority of the State over the conduct of
its citizens upon the high seas is analogous to the sovereign authority
of the United States over its citizens in like circumstances."[1548]


BILLS OF CREDIT

Within the sense of the Constitution, bills of credit signify a paper
medium of exchange, intended to circulate between individuals; and
between the Government and individuals, for the ordinary purposes of
society. It is immaterial whether the quality of legal tender is
imparted to such paper. Interest bearing certificates, in denominations
not exceeding ten dollars, which were issued by loan offices established
by the State of Missouri, and made receivable in payment of taxes or
other moneys due to the State, and in payment of the fees and salaries
of State officers, were held to be bills of credit whose issuance was
banned by this section.[1549] The States are not forbidden, however, to
issue coupons receivable for taxes,[1550] nor to execute instruments
binding themselves to pay money at a future day for services rendered or
money borrowed.[1551] Bills issued by State banks are not bills of
credit;[1552] it is immaterial that the State is the sole stockholder of
the bank,[1553] that the officers of the bank were elected by the State
legislature,[1554] or that the capital of the bank was raised by the
sale of State bonds.[1555]


LEGAL TENDER

Relying on this clause, which applies only to the States and not to the
Federal Government,[1556] the Supreme Court has held that where the
marshal of a State court received State bank notes in payment and
discharge of an execution, the creditor was entitled to demand payment
in gold or silver.[1557] Since, however, there is nothing in the
Constitution which prohibits a bank depositor from consenting when he
draws a check, that payment may be made by draft, a State law which
provided that checks drawn on local banks should, at the option of the
bank, be payable in exchange drafts was held valid.[1558]


BILLS OF ATTAINDER

Statutes passed after the Civil War with the intent and result of
excluding persons who had aided the Confederacy from following certain
callings, by the device of requiring them to take an oath that they had
never given such aid, were held invalid as being bills of attainder, as
well as _ex post facto_ laws.[1559]


EX POST FACTO LAWS


Scope of Provision

This clause, like the cognate restriction imposed on the Federal
Government by section 9, relates only to penal and criminal legislation
and not to civil laws which affect private rights adversely.[1560] It is
directed only against legislative action and does not touch erroneous or
inconsistent decisions by the courts.[1561] Even though a law is _ex
post facto_ and invalid as to crimes committed prior to its enactment,
it is nonetheless valid as to subsequent offenses.[1562] If it mitigates
the rigor of the law in force at the time the crime was committed,[1563]
or if it merely penalizes the continuance of conduct which was lawfully
begun before its passage, the statute is not _ex post facto_. Thus
measures penalizing the failure of a railroad to cut drains through
existing embankments,[1564] or making illegal the continued possession
of intoxicating liquors which were lawfully acquired,[1565] have been
held valid.


Denial of Future Privileges to Past Offenders

The right to practice a profession may be denied to one who was
convicted of an offense before the statute was enacted if the offense
may reasonably be regarded as a continuing disqualification for the
profession. Without offending the Constitution, a statute making it a
misdemeanor to practice medicine after conviction of a felony may be
enforced against a person so convicted before the act was passed.[1566]
But the test oath prescribed after the Civil War, whereby office
holders, teachers, or preachers were required to swear that they had not
participated in the Rebellion, were held invalid on the ground that it
had no reasonable relation to fitness to perform official or
professional duties, but rather was a punishment for past
offenses.[1567] A similar oath required of suitors in the courts also
was held void.[1568]


Changes in Punishment

Statutes which changed an indeterminate sentence law to require a judge
to impose the maximum sentence, whereas formerly he could impose a
sentence between the minimum and maximum;[1569] abolished a rule which
prevented a subsequent conviction of first-degree murder after a jury
had found the accused guilty in the second-degree by a verdict which had
been set aside;[1570] required criminals sentenced to death to be kept
thereafter in solitary confinement,[1571] or allowed a warden to fix,
within limits of one week, and keep secret the time of execution,[1572]
were held to be _ex post facto_ as applied to offenses committed prior
to their enactment. But laws providing heavier penalties for new crimes
thereafter committed by habitual criminals;[1573] changing the
punishment from hanging to electrocution, fixing the place therefor in
the penitentiary, and permitting the presence of a greater number of
invited witnesses;[1574] or providing for close confinement of six to
nine months in the penitentiary, in lieu of three to six months in jail
prior to execution, and substituting the warden for the sheriff as
hangman, have been sustained.[1575]


Changes in Procedure

An accused person does not have a right to be tried in all respects in
accordance with the law in force when the crime charged was
committed.[1576] The mode of procedure may be changed so long as the
substantial rights of the accused are not curtailed.[1577] Laws shifting
the place of trial from one county to another,[1578] increasing the
number of appellate judges and dividing the appellate court into
divisions,[1579] granting a right of appeal to the State,[1580] changing
the method of selecting and summoning jurors,[1581] making separate
trials for persons jointly indicted a matter of discretion for the trial
court rather than a matter of right,[1582] and allowing a comparison of
handwriting experts[1583] have been sustained over the objection that
they were _ex post facto_. The contrary conclusion was reached with
respect to the application to felonies committed before a Territory was
admitted to the Union, of the provision in the State constitution which
permitted the trial of criminal cases by a jury of eight persons,
instead of the common law jury of twelve which was guaranteed by the
Sixth Amendment during the period of territorial government.[1584]


OBLIGATION OF CONTRACTS


Definition of Terms

"Law."--The term comprises statutes, constitutional
provisions,[1585] municipal ordinances,[1586] and administrative
regulations having the force and operation of statutes.[1587] How is it
as to judicial decisions? Not only does the abstract principle of the
separation of powers forbid the idea that the courts "make" law, but the
word "pass" in the above clause seems to confine it to the formal and
acknowledged methods of exercise of the law-making function.
Accordingly, the Court has frequently said that the clause does not
cover judicial decisions, however erroneous, or whatever their effect on
existing contract rights.[1588] Nevertheless, there are important
exceptions to this rule which are hereinafter set forth.

Status of Judicial Decisions.--Also, while the highest State
court usually has final authority in determining the construction as
well as the validity of contracts entered into under the laws of the
State, and the national courts will be bound by their decision of such
matters, nevertheless, for reasons which are fairly obvious, this rule
does not hold when the contract is one whose obligation is alleged to
have been impaired by State law.[1589] Otherwise, the challenged State
authority could be vindicated through the simple device of a
modification or outright nullification by the State court of the
contract rights in issue. Likewise, the highest State court usually has
final authority in construing State statutes and determining their
validity in relation to the State constitution. But this rule too has
had to bend to some extent to the Supreme Court's interpretation of the
obligation of contracts clause.[1590]

Suppose the following situation: (1) a municipality, acting under
authority conferred by a State statute, has issued bonds in aid of a
railway company; (2) the validity of this statute has been sustained by
the highest State court; (3) later the State legislature passes an act
to repeal certain taxes to meet the bonds; (4) it is sustained in doing
so by a decision of the highest State court holding that the statute
authorizing the bonds was unconstitutional _ab initio_. In such a case
the Supreme Court would take an appeal from the State court and would
reverse the latter's decision of unconstitutionally because of its
effect in rendering operative the act to repeal the tax.[1591]

Suppose further, however, that the State court has reversed itself on
the question of the constitutionality of the bonds in a suit by a
creditor for payment without there having been an act of repeal. In this
situation, as the cases stand today, the Supreme Court will still afford
relief if the case is one between citizens of different States, which
reaches it via a lower federal court.[1592] This is because in cases of
this nature the Court formerly felt free to determine questions of
fundamental justice for itself. Indeed, in such a case, the Court has
apparently in the past regarded itself as free to pass upon the
constitutionality of the State law authorizing the bonds even though
there has been no prior decision by the highest State court sustaining
them, the idea being that contracts entered into simply on the faith of
the _presumed_ constitutionality of a State statute are entitled to
this protection.[1593]

In other words, in cases of which it has jurisdiction because of
diversity of citizenship, the Court has held that the obligation of
contracts is capable of impairment by subsequent judicial decisions no
less than by subsequent statutes and that it is able to prevent such
impairment. In cases, on the other hand, of which it obtains
jurisdiction only on the constitutional ground, and by appeal from a
State court, it has always adhered in terms to the doctrine that the
word "laws" as used in article I, section 10, does not comprehend
judicial decisions. Yet even in these cases, it will intervene to
protect contracts entered into on the faith of existing decisions from
an impairment which is the direct result of a reversal of such
decisions, but there must be in the offing, as it were, a statute of
some kind--one possibly many years older than the contract rights
involved--on which to pin its decision.[1594]

In 1922 Congress, through an amendment to the Judicial Code, endeavored
to extend the reviewing power of the Supreme Court to suits involving
"'* * * the validity of a contract wherein it is claimed that a change
in the rule of law or construction of statutes by the highest court of a
State applicable to such contract would be repugnant to the Constitution
of the United States * * *'" This appeared to be an invitation to the
Court to say frankly that the obligation of a contract can be impaired
as well by a subsequent decision as by a subsequent statute. The Court,
however, declined the invitation in an opinion by Chief Justice Taft
which reviewed many of the cases covered in the preceding paragraphs.
Dealing with the Gelpcke and adherent decisions, Chief Justice Taft
said: "These cases were not writs of error to the Supreme Court of a
State. They were appeals or writs of error to federal courts where
recovery was sought upon municipal or county bonds or some other form of
contracts, the validity of which had been sustained by decisions of the
Supreme Court of a State prior to their execution, and had been denied
by the same court after their issue or making. In such cases the federal
courts exercising jurisdiction between citizens of different States held
themselves free to decide what the State law was, and to enforce it as
laid down by the State Supreme Court before the contracts were made
rather than in later decisions. They did not base this conclusion on
Article I, § 10, of the Federal Constitution, but on the State law as
they determined it, which, in diverse citizenship cases, under the third
Article of the Federal Constitution they were empowered to do. Burgess
_v._ Seligman, 107 U.S. 20 (1883)."[1595] While doubtless this was an
available explanation in 1924, the decision in 1938 in Erie Railroad Co.
_v._ Tompkins, 304 U.S. 64, so cuts down the power of the federal courts
to decide diversity of citizenship cases according to their own notions
of "general principles of common law" as to raise the question whether
the Court will not be required eventually to put Gelpcke and its
companions and descendants squarely on the obligation of contracts
clause, or else abandon them.

"Obligation."--A contract is analyzable into two elements: the
_agreement_, which comes from the parties, and the _obligation_ which
comes from the law and makes the agreement binding on the parties. The
concept of obligation is an importation from the Civil Law and its
appearance in the contracts clause is supposed to have been due to James
Wilson, a graduate of Scottish universities and a Civilian. Actually the
term as used in the contracts clause has been rendered more or less
superfluous by the doctrine that the law in force when a contract is
made enters into and comprises a part of the contract itself.[1596]
Hence the Court sometimes recognizes the term in its decisions applying
the clause, sometimes ignores it. In Sturges _v._ Crowninshield,[1597]
decided in 1819, Marshall defines "obligation of contract" as "the law
which binds the parties to perform their agreement"; but a little later
the same year he sets forth the points presented for consideration in
Trustees of Dartmouth College _v._ Woodward[1598] to be: "1. Is this
contract protected by the Constitution of the United States? 2. Is it
impaired by the acts under which the defendant holds?"[1599] The word
"obligation" undoubtedly does carry the implication that the
Constitution was intended to protect only _executory_ contracts--i.e.,
contracts still awaiting performance; but as is indicated in a moment,
this implication was early rejected for a certain class of contracts,
with immensely important result for the clause.

"Impair."--"The obligations of a contract," says Chief Justice
Hughes for the Court in Home Building and Loan Association _v._
Blaisdell,[1600] "are impaired by a law which renders them invalid, or
releases or extinguishes them * * * and impairment, * * *, has been
predicated of laws which without destroying contracts derogate from
substantial contractual rights."[1601] But he straight-away adds: "Not
only are existing laws read into contracts in order to fix obligations
as between the parties, but the reservation of essential attributes of
sovereign power is also read into contracts as a postulate of the legal
order. The policy of protecting contracts against impairment presupposes
the maintenance of a government by virtue of which contractual relations
are worth while,--a government which retains adequate authority to
secure the peace and good order of society. This principle of
harmonizing the constitutional prohibition with the necessary residuum
of State power has had progressive recognition in the decisions of this
Court."[1602] In short, the law from which the obligation stems must be
understood to include Constitutional Law and, moreover, a "progressive"
Constitutional Law.[1603]

"Contracts," Extended to Cover Public Contracts.--Throughout
the first century of government under the Constitution, according to
Benjamin F. Wright, the contract clause had been considered in almost
forty per cent of all cases involving the validity of State legislation,
and of these the vast proportion involved legislative grants of one type
or other, the most important category being charters of
incorporation.[1604] Nor does this numerical prominence of such grants
in the cases overrate their relative importance from the point of view
of public interest. The question consequently arises whether the clause
was intended to be applied solely in protection of private contracts, or
in the protection also of public grants or, more broadly, in protection
of public contracts, in short, those to which a State is party?

Writing late in life, Madison explained the clause by allusion to what
had occurred "in the internal administration of the States," in the
years immediately preceding the Constitutional Convention, in regard to
private debts. "A violation of contracts," said he, "had become familiar
in the form of depreciated paper made a legal tender, of property
substituted for money, and installment laws, and the occlusions of the
courts of justice."[1605] He had, in fact, written to the same effect in
The Federalist, while the adoption of the Constitution was
pending.[1606]

The broader view of the intended purpose of the clause is,
nevertheless, not without considerable support. For one thing, the
clause departs from the comparable provision in the Northwest Ordinance
(1787) in two respects: First, in the _presence_ of the word
"obligation"; secondly, in the _absence_ of the word "private"; and
there is good reason for believing that Wilson may have been responsible
for both alterations, inasmuch as two years earlier he had denounced a
current proposal to repeal the Bank of North America's Pennsylvania
charter, in the following words: "If the act for incorporating the
subscribers to the Bank of North America shall be repealed in this
manner, a precedent will be established for repealing, in the same
manner, every other legislative charter in Pennsylvania. A pretence, as
specious as any that can be alleged on this occasion, will never be
wanting on any future occasion. Those acts of the State, which have
hitherto been considered as the sure anchors of privilege and of
property, will become the sport of every varying gust of politics, and
will float wildly backwards and forwards on the irregular and impetuous
tides of party and faction."[1607]

Furthermore, in its first important constitutional case, that of
Chisholm _v._ Georgia,[1608] the Court ruled that its original
jurisdiction extended to an action in assumpsit brought by a citizen of
South Carolina against the State of Georgia. This construction of the
federal judicial power was, to be sure, promptly repealed by the
Eleventh Amendment, but without affecting the implication that the
contracts protected by the Constitution included public contracts.

One important source of this diversity of opinion is to be found in that
ever welling spring of constitutional doctrine in early days, the
prevalence of Natural Law notions and the resulting vague significance
of the term "law." In Sturges _v._ Crowninshield, as we saw, Marshall
defined the _obligation of contracts_ as "the law which binds the
parties to perform their undertaking." Whence, however, comes this law?
If it comes from the State alone, which Marshall was later to deny even
as to private contracts,[1609] then it is hardly possible to hold that
the States' own contracts are covered by the clause, which manifestly
does not _create_ an obligation for contracts but only protects such
obligation as already exists. But if, on the other hand, the law
furnishing the obligation of contracts comprises Natural Law and kindred
principles, as well as law which springs from State authority, then,
inasmuch as the State itself is presumably bound by such principles, the
State's own obligations, so far as harmonious with them, are covered by
the clause.


Fletcher _v._ Peck

Fletcher _v._ Peck,[1610] which was decided in 1810, has the double
claim to fame that it was the first case in which the Supreme Court held
a State enactment to be in conflict with the Constitution,[1611] and
also the first case to hold that the contracts clause protected public
grants. By an act passed on January 7, 1795, the Georgia Legislature
directed the sale to four land companies of public lands comprising most
of what are now the States of Alabama and Mississippi. As soon became
known, the passage of the measure had been secured by open and wholesale
bribery. So when a new legislature took over in the winter of 1795-1796,
almost its first act was to revoke the sale made the previous year.

Meantime, however, the land companies had disposed of several millions
of acres of their holdings to speculators and prospective settlers, and
following the rescinding act some of these took counsel with Alexander
Hamilton as to their rights. In an opinion which was undoubtedly known
to the Court when it decided Fletcher _v._ Peck, Hamilton characterized
the repeal as contravening "the first principles of natural justice and
social policy," especially so far as it was made, "to the prejudice
* * * of third persons * * * innocent of the alleged fraud or
corruption; * * * [Moreover, he added,] the Constitution of the United
States, article first, section tenth, declares that no State shall pass
a law impairing the obligations of contract. This must be equivalent to
saying no State shall pass a law revoking, invalidating, or altering a
contract. Every grant from one to another, whether the grantor be a
State or an individual, is virtually a contract that the grantee shall
hold and enjoy the thing granted against the grantor, and his
representatives. It, therefore, appears to me that taking the terms of
the Constitution in their large sense, and giving them effect according
to the general spirit and policy of the provisions, the revocation of
the grant by the act of the legislature of Georgia may justly be
considered as contrary to the Constitution of the United States, and,
therefore null. And that the courts of the United States, in cases
within their jurisdiction, will be likely to pronounce it so."[1612] In
the debate to which the "Yazoo Land Frauds," as they were
contemporaneously known, gave rise in Congress, Hamilton's views were
quoted frequently.

So far as it invokes the obligation of contracts clause, Marshall's
opinion in Fletcher _v._ Peck performs two creative acts. He recognizes
that an obligatory contract is one still to be performed--in other
words, is an executory contract; also that a grant of land is an
executed contract--a conveyance. But, he asserts, every grant is
attended by "an implied contract" on the part of the grantor not to
claim again the thing granted. Thus, grants are brought within the
category of contracts having continuing obligation and so within article
I, § 10. But the question still remained of the nature of this
obligation. Marshall's answer to this can only be inferred from his
statement at the end of his opinion. The State of Georgia, he says, "was
restrained" from the passing of the rescinding act "either by general
principles which are common to our free institutions, or by particular
provisions of the Constitution of the United States."[1613]


New Jersey _v._ Wilson

The protection thus thrown about land grants was presently extended, in
the case of New Jersey _v._ Wilson,[1614] to a grant of immunity from
taxation which the State of New Jersey had accorded certain Indian
lands; and several years after that, in the Dartmouth College
Case,[1615] to the charter privileges of an eleemosynary corporation.


Corporate Charters, Different Ways of Regarding

There are three ways in which the charter of a corporation may be
regarded. In the first place, it may be thought of simply as a license
terminable at will by the State, like a liquor-seller's license or an
auctioneer's license, but affording the incorporators, so long as it
remains in force, the privileges and advantages of doing business in the
form of a corporation. Nowadays, indeed, when corporate charters are
usually issued to all legally qualified applicants by an administrative
officer who acts under a general statute, this would probably seem to be
the natural way of regarding them were it not for the Dartmouth College
decision. But in 1819 charters were granted directly by the State
legislatures in the form of special acts, and there were very few
profit-taking corporations in the country.[1616] The later extension of
the benefits of the Dartmouth College decision to corporations organized
under general law took place without discussion.

Secondly, a corporate charter may be regarded as a franchise
constituting a vested or property interest in the hands of the holders,
and therefore as forfeitable only for abuse or in accordance with its
own terms. This is the way in which some of the early State courts did
regard them at the outset.[1617] It is also the way in which Blackstone
regards them in relation to the royal prerogative, although not in
relation to the sovereignty of Parliament; and the same point of view
finds expression in Story's concurring opinion in Dartmouth College _v._
Woodward, as it did also in Webster's argument in that case.[1618]


The Dartmouth College Case

The third view is the one formulated by Chief Justice Marshall in his
controlling opinion in Trustees of Dartmouth College _v._
Woodward.[1619] This is that the charter of Dartmouth College, a purely
private institution, was the outcome and partial record of a contract
between the donors of the college, on the one hand, and the British
Crown, on the other, which contract still continued in force between the
State of New Hampshire, as the successor to the Crown and Government of
Great Britain, and the trustees, as successors to the donors. The
charter, in other words, was not simply a grant--rather it was the
documentary record of a still existent agreement between still existent
parties.[1620] Taking this view, which he developed with great ingenuity
and persuasiveness, Marshall was able to appeal to the obligation of
contracts clause directly, and without further use of his fiction in
Fletcher _v._ Peck of an executory contract accompanying the grant.

A difficulty still remained, however, in the requirement that a contract
must, before it can have obligation, import consideration, that is to
say, must be shown not to have been entirely gratuitous on either side.
Nor was the consideration which induced the Crown to grant a charter to
Dartmouth College a merely speculative one. It consisted of the
donations of the donors to the important public interest of education.
Fortunately or unfortunately, in dealing with this phase of the case,
Marshall used more sweeping terms than were needful. "The objects for
which a corporation is created," he wrote, "are universally such as the
government wishes to promote. They are deemed beneficial to the country;
and this benefit constitutes the consideration, and in most cases, the
sole consideration of the grant." In other words, the simple fact of the
charter having been granted imports consideration from the point of view
of the State.[1621] With this doctrine before it, the Court in
Providence Bank _v._ Billings,[1622] and again in Charles River Bridge
Company _v._ Warren Bridge Company,[1623] admitted, without discussion
of the point, the applicability of the Dartmouth College decision to
purely business concerns.


Classes of Cases Under the Clause

The cases just reviewed produce two principal lines of decisions
stemming from the obligation of contracts clause: first, public grants;
second, private executory contracts. The chief category of the first
line of cases consists, in turn, of those involving corporate
privileges, both those granted directly by the States and those granted
by municipalities by virtue of authority conferred upon them by the
State;[1624] while private debts, inclusive of municipal debts, exhaust
for the most part the second line.


Public Grants

Municipal Corporations.--Not all grants by a State constitute
"contracts" within the sense of article I, section 10. In his Dartmouth
College decision Chief Justice Marshall conceded that "if the act of
incorporation be a grant of political power, if it creates a civil
institution, to be employed in the administration of the government,
* * *, the subject is one in which the legislature of the State may act
according to its own justment," unrestrained by the
Constitution[1625]--thereby drawing a line between "public" and
"private" corporations which remained undisturbed for more than half a
century.[1626] It has been subsequently held many times that municipal
corporations are mere instrumentalities of the State for the more
convenient administration of local governments, whose powers may be
enlarged, abridged, or entirely withdrawn at the pleasure of the
legislature.[1627] The same principle applies, moreover, to the property
rights which the municipality derives either directly or indirectly from
the State. This was first held as to the grant of a franchise to a
municipality to operate a ferry, and has since then been recognized as
the universal rule.[1628] As was stated in a case decided in 1923: "The
distinction between the municipality as an agent of the State for
governmental purposes and as an organization to care for local needs in
a private or proprietary capacity," while it limits the legal liability
of municipalities for the negligent acts or omissions of its officers or
agents, does not, on the other hand, furnish ground for the application
of constitutional restraints against the State in favor of its own
municipalities.[1629] Thus no contract rights are impaired by a statute
removing a county seat, even though the former location was by law to be
"permanent" when the citizens of the community had donated land and
furnished bonds for the erection of public buildings.[1630] Likewise a
statute changing the boundaries of a school district, giving to the new
district the property within its limits which had belonged to the former
district, and requiring the new district to assume the debts of the old
district, does not impair the obligation of contracts.[1631] Nor was the
contracts clause violated by State legislation authorizing State control
over insolvent communities through a Municipal Finance Commission.[1632]

Public Offices.--On the same ground of public agency, neither
appointment nor election to public office creates a contract in the
sense of article I, section 10, whether as to tenure, or salary, or
duties, all of which remain, so far as the Constitution of the United
States is concerned, subject to legislative modification or outright
repeal.[1633] Indeed there can be no such thing in this country as
property in office, although the common law sustained a different view
which sometimes found reflection in early cases.[1634] When, however,
services have once been rendered, there arises an implied contract that
they shall be compensated at the rate which was in force at the time
they were rendered.[1635] Also, an express contract between the State
and an individual for the performance of specific services falls within
the protection of the Constitution. Thus a contract made by the governor
pursuant to a statute authorizing the appointment of a commissioner to
conduct, over a period of years, a geological, mineralogical, and
agricultural survey of the State, for which a definite sum had been
authorized, was held to have been impaired by repeal of the
statute.[1636] But a resolution of a New Jersey local board of education
reducing teachers' salaries for the school year 1933-1934, pursuant to
an act of the legislature authorizing such action, was held not to
impair the contract of a teacher who, having served three years, was by
earlier legislation exempt from having his salary reduced except for
inefficiency or misconduct.[1637] Similarly, it was held that an
Illinois statute which reduced the annuity payable to retire teachers
under an earlier act did not violate the contracts clause, since it had
not been the intention of the earlier act to propose a contract but only
to put into effect a general policy.[1638] On the other hand, the right
of one, who had become a "permanent teacher" under the Indiana Teachers
Tenure Act of 1927, to continued employment was held to be contractual
and to have been impaired by the repeal in 1933 of the earlier
act.[1639]

Revocable Privileges Versus "Contracts": Tax Exemptions.--From
a different point of view, the Court has sought to distinguish between
grants of privileges, whether to individuals or to corporations, which
are contracts and those which are mere revocable licenses, although on
account of the doctrine of presumed consideration mentioned earlier,
this has not always been easy to do. In pursuance of the precedent set
in New Jersey _v._ Wilson,[1640] the legislature of a State "may exempt
particular parcels of property or the property of particular persons or
corporations from taxation, either for a specified period or
perpetually, or may limit the amount or rate of taxation, to which such
property shall be subjected," and such an exemption is frequently a
contract within the sense of the Constitution. Indeed this is always so
when the immunity is conferred upon a corporation by the clear terms of
its charter.[1641] When, on the other hand, an immunity of this sort
springs from general law, its precise nature is more open to doubt, as a
comparison of decisions will serve to illustrate.

In Piqua Branch of the State Bank _v._ Knoop,[1642] a closely divided
Court held that a general banking law of the State of Ohio which
provided that companies complying therewith and their stockholders
should be exempt from all but certain taxes, was, as to a bank organized
under it and its stockholders, a contract within the meaning of article
I, section 10. "The provision was not," the Court said, "a legislative
command nor a rule of taxation until changed, but a contract stipulating
against any change, from the nature of the language used and the
circumstances under which it was adopted."[1643] When, however, the
State of Michigan pledged itself, by a general legislative act, not to
tax any corporation, company, or individual undertaking to manufacture
salt in the State from water there obtained by boring on property used
for this purpose and, furthermore, to pay a bounty on the salt so
manufactured, it was held not to have engaged itself within the
constitutional sense. "General encouragements," said the Court, "held
out to all persons indiscriminately, to engage in a particular trade or
manufacture, whether such encouragement be in the shape of bounties or
drawbacks, or other advantage, are always under the legislative control,
and may be discontinued at any time."[1644] So far as exemption from
taxation is concerned the difference between these two cases is
obviously slight; but the later one is unquestionable authority for the
proposition that legislative bounties are repealable at will.

Furthermore, exemptions from taxation have in certain cases been treated
as gratuities repealable at will, even when conferred by specific
legislative enactments. This would seem always to be the case when the
beneficiaries were already in existence when the exemption was created
and did nothing of a more positive nature to qualify for it than to
continue in existence.[1645] Yet the cases are not always easy to
explain in relation to each other, except in light of the fact that the
Court's wider point of view has altered from time to time.[1646]

Vested Rights.--Lastly, the term "contracts" is used in the
contracts clause in its popular sense of an agreement of minds. The
clause therefore does not protect vested rights that are not referable
to such an agreement between the State and an individual, such as the
right to recovery under a judgment. The individual in question may have
a case under the Fourteenth Amendment, but not one under article I,
section 10.[1647]


Reservation of the Right to Alter and Repeal

So much for the meaning of the word "contract" when public grants are
meant. It is next in order to consider four principles or doctrines
whereby the Court has itself broken down the force of the Dartmouth
College decision in great measure in favor of State legislative power.
By the logic of the Dartmouth College decision itself the State may
reserve in a corporate charter the right to "amend, alter, and repeal"
the same, and such reservation becomes a part of the contract between
the State and the incorporators, the obligation of which is accordingly
not impaired by the exercise of the right.[1648] Later decisions
recognize that the State may reserve the right to amend, alter, and
repeal by general law, with the result of incorporating the reservation
in all charters of subsequent date.[1649] There is, however, a
difference between a reservation by a statute and one by constitutional
provision. While the former may be repealed as to a subsequent charter
by the specific terms thereof, the latter may not.[1650]

The Right to Reserve: When Limited.--Is the right which is
reserved by a State to "amend" or "alter" a charter without restriction?
When it is accompanied, as it generally is, by the right to "repeal,"
one would suppose that the answer to this question was self-evident.
None the less, there are a number of judicial dicta to the effect that
this power is not without limit, that it must be exercised reasonably
and in good faith, and that the alterations made must be consistent with
the scope and object of the grant, etc.[1651] Such utterances amount,
apparently, to little more than an anchor to windward, for while some of
the State courts have applied tests of this nature to the disallowance
of legislation, it does not appear that the Supreme Court of the United
States has ever done so.[1652]

Quite different is it with the distinction pointed out in the cases
between the franchises and privileges which a corporation derives from
its charter and the rights of property and contract which accrue to it
in the course of its existence. Even the outright repeal of the former
does not wipe out the latter or cause them to escheat to the State. The
primary heirs of the defunct organization are its creditors; but
whatever of value remains after their valid claims are met goes to the
former shareholders.[1653] By the earlier weight of authority, on the
other hand, persons who contract with companies whose charters are
subject to legislative amendment or repeal do so at their own risk: any
"such contracts made between individuals and the corporation do not vary
or in any manner change or modify the relation between the State and the
corporation in respect to the right of the State to alter, modify, or
amend such a charter, * * *"[1654] But later holdings becloud this
rule.[1655]

Corporations As Persons Subject To The Law.--But suppose the
State neglects to reserve the right to amend, alter, or repeal--is it,
then, without power to control its corporate creatures? By no means.
Private corporations, like other private persons, are always presumed to
be subject to the legislative power of the State; from which it follows
that immunities conferred by charter are to be treated as exceptions to
an otherwise controlling rule. This principle was recognized by Chief
Justice Marshall in the case of Providence Bank _v._ Billings,[1656] in
which he held that in the absence of express stipulation or reasonable
implication to the contrary in its charter, the bank was subject to the
taxing power of the State, notwithstanding that the power to tax is the
power to destroy.

Corporations and the Police Power.--And of course the same
principle is equally applicable to the exercise by the State of its
police powers. Thus, in what was perhaps the leading case before the
Civil War, the Supreme Court of Vermont held that the legislature of
that State had the right, in furtherance of the public safety, to
require chartered companies operating railways to fence in their tracks
and provide cattle yards. In a matter of this nature, said the Court,
corporations are on a level with individuals engaged in the same
business, unless, from their charter, they can prove the contrary.[1657]
Since then the rule has been applied many times in justification of
State regulation of railroads,[1658] and even of the application of a
State prohibition law to a company which had been chartered expressly to
manufacture beer.[1659]


The Strict Construction of Public Grants

Long, however, before the cases last cited were decided, the principle
which they illustrate had come to be powerfully reinforced by two
others, the first of which is that all charter privileges and immunities
are to be strictly construed as against the claims of the State; or as
it is otherwise often phrased, "nothing passes by implication in a
public grant."

The Charles River Bridge Case.--The leading case is that of the
Charles River Bridge Company _v._ Warren Bridge Company,[1660] which was
decided shortly after Chief Justice Marshall's death by a substantially
new Court. The question at issue was whether the charter of the
complaining company, which authorized it to operate a toll bridge, stood
in the way of the State's permitting another company of later date to
operate a free bridge in the immediate vicinity. Inasmuch as the first
company could point to no clause in its charter which specifically
vested it with an exclusive right, the Court held the charter of the
second company to be valid on the principle just stated. Justice Story,
who remained from the old Bench, presented a vigorous dissent, in which
he argued cogently, but unavailingly, that the monopoly claimed by the
Charles River Bridge Company was fully as reasonable an implication from
the terms of its charter and the circumstances surrounding its
concession as perpetuity had been from the terms of the Dartmouth
College charter and the environing transaction.

The Court was in fact making new law, because it was looking at things
from a new point of view. This was the period when judicial recognition
of the Police Power began to take on a doctrinal character. It was also
the period when the railroad business was just beginning. Chief Justice
Taney's opinion evinces the influence of both these developments. The
power of the State to provide for its own internal happiness and
prosperity was not, he asserted, to be pared away by mere legal
intendments; nor was its ability to avail itself of the lights of modern
science to be frustrated by obsolete interests such as those of the old
turnpike companies, the charter privileges of which, he apprehended,
might easily become a bar to the development of transportation along new
lines.[1661]

Applications of the Strict Construction Rule.--The rule of
strict construction has been reiterated by the Court many times. A good
illustration is afforded by the following passage from its opinion in
Blair _v._ Chicago,[1662] decided nearly seventy years after the Charles
River Bridge Case: "Legislative grants of this character should be in
such unequivocal form of expression that the legislative mind may be
distinctly impressed with their character and import, in order that the
privileges may be intelligently granted or purposely withheld. It is a
matter of common knowledge that grants of this character are usually
prepared by those interested in them, and submitted to the legislature
with a view to obtain from such bodies the most liberal grant of
privileges which they are willing to give. This is one among many
reasons why they are to be strictly construed. * * * 'The principle is
this, that all rights which are asserted against the State must be
clearly defined, and not raised by inference or presumption; and if the
charter is silent about a power, it does not exist. If, on a fair
reading of the instrument, reasonable doubts arise as to the proper
interpretation to be given to it, those doubts are to be solved in favor
of the State; and where it is susceptible of two meanings, the one
restricting and the other extending the powers of the corporation, that
construction is to be adopted which works the least harm to the
State.'"[1663]

Strict Construction of Tax Exemptions.--An excellent
illustration of the operation of the rule in relation to tax exemptions
is furnished by the derivative doctrine that an immunity of this
character must be deemed as intended solely for the benefit of the
corporation receiving it and hence may not, in the absence of express
permission by the State, be passed on to a successor.[1664] Thus, where
two companies, each exempt from taxation, were permitted by the
legislature to consolidate the new corporation was held to be subject to
taxation.[1665] Again, a statute which granted a corporation all "the
rights and privileges" of an earlier corporation was held not to confer
the latter's "immunity" from taxation.[1666] Yet again, a legislative
authorization of the transfer by one corporation to another of the
former's "estate, property, right, privileges, and franchises" was held
not to clothe the later company with the earlier one's exemption from
taxation.[1667]

Furthermore, an exemption from taxation is to be strictly construed
even in the hands of one clearly entitled to it. So the exemption
conferred by its charter on a railway company was held not to extend to
branch roads constructed by it under a later statute.[1668] Also, a
general exemption of the property of a corporation from taxation was
held to refer only to the property actually employed in its
business.[1669] Also, the charter exemption of the capital stock of a
railroad from taxation "for ten years after completion of the said road"
was held not to become operative until the completion of the road.[1670]
So also the exemption of the campus and endowment fund of a college was
held to leave other lands of the college, though a part of its
endowment, subject to taxation.[1671] Likewise, provisions in a statute
that bonds of the State and its political subdivisions are not to be
taxed and shall not be taxed were held not to exempt interest on them
from taxation as income of the owners.[1672]

Strict Construction and the Police Power.--The police power,
too, has frequently benefited from the doctrine of strict construction,
although, for a reason pointed out below, this recourse is today seldom,
if ever, necessary in this connection. Some of the more striking cases
may be briefly summarized. The provision in the charter of a railway
company permitting it to set reasonable charges still left the
legislature free to determine what charges were reasonable.[1673] On the
other hand, when a railway agreed to accept certain rates for a
specified period, it thereby foreclosed the question of the
reasonableness of such rates.[1674] The grant to a company of the right
to supply a city with water for twenty-five years was held not to
prevent a similar concession to another company by the same city.[1675]
The promise by a city in the charter of a water company not to make a
similar grant to any other person or corporation was held not to prevent
the city itself from engaging in the business.[1676] A municipal
concession to a water company which was to run for thirty years and
which was accompanied by the provision that the "said company shall
charge the following rates," was held not to prevent the city from
reducing such rates.[1677] But more broadly, the grant to a municipality
of the power to regulate the charges of public service companies was
held not to bestow the right to contract away this power.[1678] Indeed,
any claim by a private corporation that it received the rate-making
power from a municipality must survive a two-fold challenge: first, as
to the right of the municipality under its charter to make such a grant;
secondly, as to whether it has actually done so; and in both respects
an affirmative answer must be based on express words and not on
implication.[1679]


The Doctrine of Inalienable State Powers

The second of the doctrines mentioned above whereby the principle of the
subordination of all persons, corporate and individual alike, to the
legislative power of the State has been fortified, is the doctrine that
certain of the State's powers are inalienable, and that any attempt by a
State to alienate them, upon any consideration whatsoever, is _ipso
facto_ void, and hence incapable of producing a "contract" within the
meaning of article I, section 10. One of the earliest cases to assert
this principle occurred in New York in 1826. The corporation of the City
of New York, having conveyed certain lands for the purposes of a church
and cemetery together with a covenant for quiet enjoyment, later passed
a by-law forbidding their use as a cemetery. In denying an action
against the city for breach of covenant, the State court said the
defendants "had no power as a party, [to the covenant] to make a
contract which should control or embarrass their legislative powers and
duties."[1680]

The Eminent Domain Power Inalienable.--The Supreme Court first
applied similar doctrine in 1848 in a case involving a grant of
exclusive right to construct a bridge at a specified locality.
Sustaining the right of the State of Vermont to make a new grant to a
competing company, the Court held that the obligation of the earlier
exclusive grant was sufficiently recognized in making just compensation
for it; and that corporate franchises, like all other forms of
property, are subject to the overruling power of eminent domain.[1681]
This reasoning was reinforced by an appeal to the theory of State
sovereignty, which was held to involve the corollary of the
inalienability of all the principal powers of a State.

The subordination of all charter rights and privileges to the power of
eminent domain has been maintained by the Court ever since; not even an
explicit agreement by the State to forego the exercise of the power will
avail against it.[1682] Conversely, the State may revoke an improvident
grant of the public petitionary without recourse to the power of eminent
domain, such a grant being inherently beyond the power of the State to
make. So when the legislature of Illinois in 1869 devised to the
Illinois Central Railroad Company, its successors and assigns, the
State's right and title to nearly a thousand acres of submerged land
under Lake Michigan along the harbor front of Chicago, and four years
later sought to repeal the grant, the Court, in a four-to-three
decision, sustained an action by the State to recover the lands in
question. Said Justice Field, speaking for the majority: "Such
abdication is not consistent with the exercise of that trust which
requires the government of the State to preserve such waters for the use
of public. The trust devolving upon the State for the public, and which
can only be discharged by the management and control of property in
which the public has an interest, cannot be relinquished by a transfer
of the property. * * * Any grant of the kind is necessarily revocable,
and the exercise of the trust by which the property was held by the
State can be resumed at any time."[1683] The case affords an interesting
commentary on Fletcher _v._ Peck.[1684]

The Taxing Power Not Inalienable.--On the other hand, repeated
endeavors to subject tax exemptions to the doctrine of inalienability
though at times supported by powerful minorities on the Bench, have
always failed.[1685] As recently as January, 1952, the Court ruled that
the Georgia Railway Company was entitled to seek an injunction in the
federal courts against an attempt by Georgia's Revenue Commission to
compel it to pay _ad valorem_ taxes contrary to the terms of its special
charter issued in 1833. To the argument that this was a suit contrary to
the Eleventh Amendment it returned the answer that the immunity from
Federal jurisdiction created by the Amendment "does not extend to
individuals who act as officers without constitutional authority."[1686]

The Police Power; When Inalienable.--The leading case involving
the police power is Stone _v._ Mississippi, 101 U.S. 814, decided in
1880. In 1867 the legislature of Mississippi chartered a company to
which it expressly granted the power to conduct a lottery. Two years
later the State adopted a new Constitution which contained a provision
forbidding lotteries; and a year later the legislature passed an act to
put this provision into effect. In upholding this act and the
constitutional provision on which it was based, the Court said: "The
power of governing is a trust committed by the people to the government,
no part of which can be granted away. The people, in their sovereign
capacity, have established their agencies for the preservation of the
public health and the public morals, and the protection of public and
private rights," and these agencies can neither give away nor sell their
discretion. All that one can get by a charter permitting the business of
conducting a lottery "is suspension of certain governmental rights in
his favor, subject to withdrawal at will."[1687]

The Court shortly afterward applied the same reasoning in a case in
which was challenged the right of Louisiana to invade the exclusive
privilege of a corporation engaged in the slaughter of cattle in New
Orleans by granting another company the right to engage in the same
business. Although the State did not offer to compensate the older
company for the lost monopoly, its action was sustained on the ground
that it had been taken in the interest of the public health.[1688] When,
however, the City of New Orleans, in reliance on this precedent, sought
to repeal an exclusive franchise which it had granted a company for
fifty years to supply gas to its inhabitants, the Court interposed its
veto, explaining that in this instance neither the public health, the
public morals, nor the public safety was involved.[1689]

Later decisions, nonetheless, apply the principle of inalienability
broadly. To quote from one: "It is settled that neither the 'contract'
clause nor the 'due process' clause has the effect of overriding the
power to the State to establish all regulations that are reasonably
necessary to secure the health, safety, good order, comfort, or general
welfare of the community; that this power can neither be abdicated nor
bargained away, and is inalienable even by express grant; and all
contract and property rights are held subject to its fair
exercise."[1690] Today, indeed, it scarcely pays a company to rely upon
its charter privileges or upon special concessions from a State in
resisting the application to it of measures claiming to have been
enacted by the police power thereof. For if this claim is sustained by
the Court, the obligation of the contract clause will not avail; while
if it is not, the due process of law clause of the Fourteenth Amendment
will furnish a sufficient reliance. That is to say, the discrepancy
which once existed between the Court's theory of an overriding police
power in these two adjoining fields of Constitutional Law is today
apparently at an end. Indeed, there is usually no sound reason why
rights based on public grant should be regarded as more sacrosanct than
rights which involve the same subject matter but are of different
provenience.


Private Contracts

Scope of the Term.--The term "private contracts" is, naturally,
not all-inclusive. A judgment, though granted in favor of a creditor, is
not a contract in the sense of the Constitution;[1691] nor is
marriage.[1692] And whether a particular agreement is a valid contract
is a question for the courts, and finally for the Supreme Court, when
the protection of the contract clause is invoked.[1693]

Source of the Obligation.--The question of the nature and
source of the obligation of a contract, which went by default in
Fletcher _v._ Peck and the Dartmouth College case, with such vastly
important consequences, had eventually to be met and answered by the
Court in connection with private contracts. The first case involving
such a contract to reach the Supreme Court was Sturges _v._
Crowninshield[1694] in which a debtor sought escape behind a State
insolvency act of later date than his note. The act was held
inoperative; but whether this was because of its retroaction in this
particular case or for the broader reason that it assumed to excuse
debtors from their promises, was not at the time made clear. As noted
earlier, Chief Justice Marshall's definition on this occasion of the
obligation of a contract as the law which binds the parties to perform
their undertakings was not free from ambiguity, owing to the uncertain
connotation of the term _law_.

Ogden _v._ Saunders.--These obscurities were finally
cleared up for most cases in Ogden _v._ Saunders,[1695] in which the
temporal relation of the statute and the contract involved was exactly
reversed--the former antedating the latter. Marshall contended, but
unsuccessfully, that the statute was void, inasmuch as it purported to
release the debtor from that original, intrinsic obligation which always
attaches under natural law to the acts of free agents. "When," he wrote,
"we advert to the course of reading generally pursued by American
statesmen in early life, we must suppose that the framers of our
Constitution were intimately acquainted with the writings of those wise
and learned men whose treatises on the laws of nature and nations have
guided public opinion on the subjects of obligation and contract," and
that they took their views on these subjects from those sources. He also
posed the question of what would happen to the obligation of contracts
clause if States might pass acts declaring that all contracts made
subsequently thereto should be subject to legislative control.[1696]

For the first and only time majority of the Court abandoned the Chief
Justice's leadership. Speaking by Justice Washington it held that the
obligation of private contracts is derived from the municipal law--State
statutes and judicial decisions--and that the inhibition of article I,
section 10, is confined to legislative acts made after the contracts
affected by them, with one exception. For by a curiously complicated
line of reasoning it was also held in this same case that when the
creditor is a nonresident, then a State may not by an insolvent law
rights under a contract, albeit one of later date.

With the proposition established that the obligation of a private
contract comes from the _municipal_ law in existence when the contract
is made, a further question presents itself, namely, what part of the
municipal law is referred to? No doubt, the law which determines the
validity of the contract itself is a part of such law. Also, the law
which interprets the terms used in the contract, or which supplies
certain terms when others are used; as for instance, constitutional
provisions or statutes which determine what is "legal tender" for the
payment of debts; or judicial decisions which construe the term "for
value received" as used in a promissory note, and so on. In short, any
law which at the time of the making of a contract goes to measure the
rights and duties of the parties to it in relation to each other enters
into its obligation.


Remedy a Part of the Obligation

Suppose, however, that one of the parties to a contract fails to live up
to his obligation as thus determined. The contract itself may now be
regarded as at an end; but the injured party, nevertheless, has a new
set of rights in its stead, those which are furnished him by the
remedial law, including the law of procedure. In the case of a mortgage,
he may foreclose; in the case of a promissory note, he may sue; in
certain cases, he may demand specific performance. Hence the further
question arises, whether this remedial law is to be considered a part of
the law supplying the obligation of contracts. Originally, the
predominating opinion was negative, since as we have just seen, this law
does not really come into operation until the contract has been broken.
Yet it is obvious that the sanction which this law lends to contracts is
extremely important--indeed, indispensable. In due course it became the
accepted doctrine that that part of the law which supplies one party to
a contract with a remedy if the other party does not live up to his
agreement, as authoritatively interpreted, entered into the "obligation
of contracts" in the constitutional sense of this term, and so might not
be altered to the material weakening of existing contracts. In the
court's own words, "Nothing can be more material to the obligation than
the means of enforcement. Without the remedy the contract may, indeed,
in the sense of the law, be said not to exist, and its obligation to
fall within the class of those moral and social duties which depend for
their fulfillment wholly upon the will of the individual. The ideas of
validity and remedy are inseparable, * * *"[1697]

Establishment Of The Rules.--This rule was first definitely
announced in 1843 in the case of Bronson _v._ Kinzie.[1698] Here an
Illinois mortgage giving the mortgagee an unrestricted power of sale in
case of the mortgagor's fault was involved, along with a later act of
the legislature which required mortgaged premises to be sold for not
less than two-thirds of the appraised value, and allowed the mortgagor a
year after the sale to redeem them. It was held that the statute, in
altering the preexisting remedies to such an extent, violated the
constitutional prohibition, and hence was void. The year following a
like ruling was made in the case of McCracken _v._ Hayward[1699] as to a
statutory provision that personal property should not be sold under
execution for less than two-thirds of its appraised value.

Qualifications Of The Rule.--But the rule illustrated by these
cases does not signify that a State may make no changes in its remedial
or procedural law which affect existing contracts. "Provided," the Court
has said, "a substantial or efficacious remedy remains or is given, by
means of which a party can enforce his rights under the contract, the
Legislature may modify or change existing remedies or prescribe new
modes of procedure."[1700] Thus States are constantly remodelling their
judicial systems and modes of practice unembarrassed by the obligation
of contracts clause.[1701] The right of a State to abolish imprisonment
for debt was early asserted.[1702] Again the right of a State to shorten
the time for the bringing of actions has been affirmed even as to
existing causes of action, but with the proviso added that a reasonable
time must be left for the bringing of such actions.[1703] On the other
hand, a statute which withdrew the judicial power to enforce
satisfaction of a certain class of judgments by mandamus was held
invalid.[1704] In the words of the Court: "Every case must be determined
upon its own circumstances;"[1705] and it later added: "In all such
cases the question becomes, * * *, one of reasonableness, and of that
the legislature is primarily the judge."[1706]

The Municipal Bond Cases.--There is one class of cases
resulting from the doctrine that the law of remedy constitutes a part of
the obligation of a contract to which a special word is due. This
comprises cases in which the contracts involved were municipal bonds.
While a city is from one point of view but an emanation from the
government's sovereignty and an agent thereof, when it borrows money it
is held to be acting in a corporate or private capacity, and so to be
suable on its contracts. Furthermore, as was held in the leading case of
Von Hoffman _v._ Quincy,[1707] "where a State has authorized a municipal
corporation to contract and to exercise the power of local taxation to
the extent necessary to meet its engagements, the power thus given
cannot be withdrawn until the contract is satisfied." In this case the
Court issued a mandamus compelling the city officials to levy taxes for
the satisfaction of a judgment on its bonds in accordance with the law
as it stood when the bonds were issued.[1708] Nor may a State by
dividing an indebted municipality among others enable it to escape its
obligations. In such a case the debt follows the territory, and the duty
of assessing and collecting taxes to satisfy it devolves upon the
succeeding corporations and their officers.[1709] But where a municipal
organization has ceased practically to exist through the vacation of its
offices, and the government's function is exercised once more by the
State directly, the Court has thus far found itself powerless to
frustrate a program of repudiation.[1710] However, there is no reason
why the State should enact the role of _particeps criminis_ in an
attempt to relieve its municipalities of the obligation to meet their
honest debts. Thus in 1931, during the Great Depression, New Jersey
created a Municipal Finance Commission with power to assume control over
its insolvent municipalities. To the complaint of certain bondholders
that this legislation impaired the contract obligations of their
debtors, the Court, speaking by Justice Frankfurter, pointed out that
the practical value of an unsecured claim against a city is "the
effectiveness of the city's taxing power," which the legislation under
review was designed to conserve.[1711]


Private Contracts and the Police Power

The increasing subjection of public grants to the State's police power
has been previously pointed out. That purely private contracts should be
in any stronger situation in this respect would obviously be anomalous
in the extreme. In point of fact, the ability of private parties to
curtail governmental authority by the easy devise of contracting with
one another is, with an exception to be noted, even less than that of
the State to tie its own hands by contracting away its own powers. So,
when it was contended in an early Pennsylvania case, than an act
prohibiting the issuance of notes by unincorporated banking associations
was violative of the obligation of contracts clause because of its
effect upon certain existing contracts of members of such associations,
the State Supreme Court answered: "But it is said, that the members had
formed a contract _between themselves_, which would be dissolved by the
stoppage of their business; and what then? Is that such a violation of
contracts as is prohibited by the Constitution of the United States?
Consider to what such a construction would lead. Let us suppose, that in
one of the States there is no law against gaming, cock-fighting,
horse-racing or public masquerades, and that companies should be formed
for the purpose of carrying on these practices; * * *" Would the
legislature then be powerless to prohibit them? The answer returned, of
course, was no.[1712]

The prevailing doctrine is stated by the Supreme Court of the United
States in the following words: "It is the settled law of this court that
the interdiction of statutes impairing the obligation of contracts does
not prevent the State from exercising such powers as are vested in it
for the promotion of the common weal, or are necessary for the general
good of the public, though contracts previously entered into between
individuals may thereby be affected. * * * In other words, that parties
by entering into contracts may not estop the legislature from enacting
laws intended for the public good."[1713]

So, in an early case we find a State recording act upheld as applying to
deeds dated before the passage of the act.[1714] Later cases have
brought the police power in its more customary phases into contact with
private, as well as with public contracts. Lottery tickets, valid when
issued, were necessarily invalidated by legislation prohibiting the
lottery business;[1715] contracts for the sale of beer, valid when
entered into, were similarly nullified by a State prohibition law;[1716]
and contracts of employment were modified by later laws regarding the
liability of employers and workmen's compensation.[1717] Likewise a
contract between plaintiff and defendant did not prevent the State from
making the latter a concession which rendered the contract
worthless;[1718] nor did a contract as to rates between two railway
companies prevent the State from imposing different rates;[1719] nor did
a contract between a public utility company and a customer protect the
rates agreed upon from being superseded by those fixed by the
State.[1720] Similarly, a contract for the conveyance of water beyond
the limits of a State did not prevent the State from prohibiting such
conveyance.[1721]

Emergency Legislation.--But the most striking exertions of the
police power touching private contracts, as well as other private
interests, within recent years have been evoked by war and economic
depression. Thus in World War I the State of New York enacted a statute
which, declaring that a public emergency existed, forbade the
enforcement of covenants for the surrender of the possession of premises
on the expiration of leases, and wholly deprived for a period owners of
dwellings, including apartment and tenement houses, within the City of
New York and contiguous counties of possessory remedies for the eviction
from their premises of tenants in possession when the law took effect,
providing the latter were able and willing to pay a reasonable rent. In
answer to objections leveled against this legislation on the basis of
the obligation of contracts clause, the Court said: "But contracts are
made subject to this exercise of the power of the State when otherwise
justified, as we have held this to be."[1722] In a subsequent case,
however, the Court added that, while the declaration by the legislature
of a justifying emergency was entitled to great respect, it was not
conclusive; that a law "depending upon the existence of an emergency or
other certain state of facts to uphold it may cease to operate if the
emergency ceases or the facts change," and that whether they have
changed was always open to judicial inquiry.[1723]

Individual Rights Versus Public Welfare.--Summing up the result
of the cases above referred to, Chief Justice Hughes, speaking for the
Court in Home Building and Loan Association _v._ Blaisdell,[1724]
remarked in 1934: "It is manifest from this review of our decisions that
there has been a growing appreciation of public needs and of the
necessity of finding ground for a rational compromise between individual
rights and public welfare. The settlement and consequent contraction of
the public domain, the pressure of a constantly increasing density of
population, the interrelation of the activities of our people and the
complexity of our economic interests, have inevitably led to an
increased use of the organization of society in order to protect the
very bases of individual opportunity. Where, in earlier days, it was
thought that only the concerns of individuals or of classes were
involved, and that those of the State itself were touched only remotely,
it has later been found that the fundamental interests of the State are
directly affected; and that the question is no longer merely that of one
party to a contract as against another, but of the use of reasonable
means to safeguard the economic structure upon which the good of all
depends. * * * The principle of this development is, * * * [he added]
that the reservation of the reasonable exercise of the protective power
of the States is read into all contracts * * *."[1725]


Evaluation of the Clause Today

Yet it should not be inferred that the obligation of contracts clause is
today totally moribund even in times of stress. As we have just seen it
still furnishes the basis for some degree of judicial review as to the
substantiality of the factual justification of a professed exercise by a
State legislature of its police power; and in the case of legislation
affecting the remedial rights of creditors, it still affords a solid and
palpable barrier against legislative erosion. Nor is this surprising in
view of the fact that, as we have seen, such rights were foremost in
the minds of the framers of the clause. The court's attitude toward
insolvency laws, redemption laws, exemption laws, appraisement laws and
the like has always been that they may not be given retroactive
operation;[1726] and the general lesson of these earlier cases is
confirmed by the court's decisions between 1934 and 1945 in certain
cases involving State moratorium statutes. In Home Building and Loan
Association _v._ Blaisdell,[1727] the leading case, a closely divided
Court sustained the Minnesota Moratorium Act of April 18, 1933, which,
reciting the existence of a severe financial and economic depression for
several years and the frequent occurrence of mortgage foreclosure sales
for inadequate prices, and asserting that these conditions had created
an economic emergency calling for the exercise of the State's police
power, authorized its courts to extend the period for redemption from
foreclosure sales for such additional time as they might deem just and
equitable, although in no event beyond May 1, 1935. The act also left
the mortgagor in possession during the period of extension, subject to
the requirement that he pay a reasonable rental for the property as
fixed by the Court, at such time and in such manner as should be
determined by the Court. Contemporaneously, however, less carefully
drawn statutes from Missouri and Arkansas, acts which were less
considerate of creditor's rights, were set aside as violative of the
contracts clause.[1728] "A State is free to regulate the procedure in
its courts even with reference to contracts already made," said Justice
Cardozo for the Court, "and moderate extensions of the time for pleading
or for trial will ordinarily fall within the power so reserved. A
different situation is presented when extensions are so piled up as to
make the remedy a shadow. * * * What controls our judgment at such times
is the underlying reality rather than the form or label. The changes of
remedy now challenged as invalid are to be viewed in combination, with
the cumulative significance that each imparts to all. So viewed they are
seen to be an oppressive and unnecessary destruction of nearly all the
incidents that give attractiveness and value to collateral
security."[1729] On the other hand, in the most recent of this category
of cases, the Court gave its approval to an extension by the State of
New York of its moratorium legislation. While recognizing that business
conditions had improved, the Court was of the opinion that there was
reason to believe that "'the sudden termination of the legislation which
has damned up normal liquidation of these mortgages for more than eight
years might well result in an emergency more acute than that which the
original legislation was intended to alleviate.'"[1730]

And meantime the Court had sustained legislation of the State of New
York under which a mortgagee of real property was denied a deficiency
judgment in a foreclosure suit where the State court found that the
value of the property purchased by the mortgagee at the foreclosure sale
was equal to the debt secured by the mortgage.[1731] "Mortgagees," the
Court said, "are constitutionally entitled to no more than payment in
full. * * * To hold that mortgagees are entitled under the contract
clause to retain the advantages of a forced sale would be to dignify
into a constitutionally protected property right their chance to get
more than the amount of their contracts. * * * The contract clause does
not protect such a strategical, procedural advantage."[1732]


Statistical Data Pertinent to the Clause

The obligation of contracts clause attained the high point of its
importance in our Constitutional Law in the years immediately following
the Civil War.[1733] Between 1865 and 1873 there were twenty cases in
which State acts were held invalid under the clause, of which twelve
involved public contracts. During the next fifteen years, which was the
period of Waite's chief justiceship, twenty-nine cases reached the Court
in which State legislation was set aside under the clause. Twenty-four
of these involved public contracts. The decline of the importance of the
clause as a title in Constitutional Law began under Chief Justice Fuller
(1888 to 1910). During this period less than 25% of the cases involving
the validity of State legislation involved this rubric. In twenty-eight
of these cases, of which only two involved private contracts, the
statute involved was set aside. During Chief Justice White's term (1910
to 1921) the proportion of contract cases shrank to 15%, and in that of
Chief Justice Taft, to 9%.[1734]

In recent years the clause has appeared to undergo something of a
revival, not however as a protection of public grants, but as a
protection of private credits. During the Depression, which began in
1929 and deepened in 1932, State legislatures enacted numerous
moratorium statutes, and beginning with Home Loan Association _v._
Blaisdell, which was decided in 1934, the Court was required to pass
upon several of these. At the same time the clause was, in effect,
treated by the Court in two important cases as interpretive of the due
process clause, Amendment V, and thus applied indirectly as a
restriction on the power of Congress.[1735] But this emergence of the
clause into prominence was a flash in the pan. During the last decade
hardly a case a term involving the clause has reached the Court,
counting even those in which it is treated as a tail to the due process
of law kite.[1736] The reason for this declension has been twofold:
first, the subordination of public grants to the police power; secondly,
the expansion of the due process clause, which has largely rendered it a
fifth wheel to the Constitutional Law coach.


Clause 2. 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.


DUTIES ON EXPORTS AND IMPORTS


Scope

Only articles imported from or exported to a foreign country, or "a
place over which the Constitution has not extended its commands with
respect to imports and their taxation," e.g., the Philippine Islands,
are comprehended by the terms "imports" and "exports,"[1737] goods
brought from another State are not affected by this section.[1738] To
determine how long imported wares remain under the protection of this
clause, the Supreme Court enunciated the original package doctrine in
the leading case of Brown _v._ Maryland.[1739] "When the importer has so
acted upon the thing imported," wrote Chief Justice Marshall, "that it
has become incorporated and mixed up with the mass of property in the
country, it has, perhaps, lost its distinctive character as an import,
and has become subject to the taxing power of the State; but while
remaining the property of the importer, in his warehouse, in the
original form or package in which it was imported, a tax upon it is too
plainly a duty on imports, to escape the prohibition in the
Constitution."[1740] A box, case or bale in which separate parcels of
goods have been placed by the foreign seller is regarded as the original
package, and upon the opening of such container for the purpose of using
the separate parcels, or of exposing them for sale, each parcel loses
its character as an import and becomes subject to taxation as a part of
the general mass of property in the State.[1741] Imports for manufacture
cease to be such when the intended processing takes place,[1742] or when
the original packages are broken.[1743] Where a manufacturer imports
merchandise and stores it in his warehouse in the original packages,
that merchandise does not lose its quality as an import, at least so
long as it is not required to meet such immediate needs.[1744] The
purchaser of imported goods is deemed to be the importer if he was the
efficient cause of the importation, whether the title to the goods
vested in him at the time of shipment, or after its arrival in this
country.[1745] A State franchise tax measured by properly apportioned
gross receipts may be imposed upon a railroad company in respect of the
company's receipts for services in handling imports and exports at its
marine terminal.[1746]


Privilege Taxes

A State law requiring importers to take out a license to sell imported
goods amounts to an indirect tax on imports and hence is
unconstitutional.[1747] Likewise, a franchise tax upon foreign
corporations engaged in importing nitrate and selling it in the original
packages,[1748] a tax on sales by brokers[1749] and auctioneers[1750]
of imported merchandise in original packages, and a tax on the sale of
goods in foreign commerce consisting of an annual license fee plus a
percentage of gross sales,[1751] have been held invalid. On the other
hand, pilotage fees,[1752] a tax upon the gross sales of a purchaser
from the importer,[1753] a license tax upon dealing in fish which,
through processing, handling, and sale, have lost their distinctive
character as imports,[1754] an annual license fee imposed on persons
engaged in buying and selling foreign bills of exchange,[1755] and a tax
upon the right of an alien to receive property as heir, legatee, or
donee of a deceased person[1756] have been held not to be duties on
imports or exports.


Property Taxes

Property brought into the United States from without is immune from _ad
valorem_ taxation so long as it retains its character as an
import,[1757] but the proceeds of the sale of imports, whether in the
form of money or notes, may be taxed by a State.[1758] A property tax
levied on warehouse receipts for whiskey exported to Germany was held
unconstitutional as a tax on exports.[1759]


Inspection Laws

Inspection laws "are confined to such particulars as, in the estimation
of the legislature and according to the customs of trade, are deemed
necessary to fit the inspected article for the market, by giving the
purchaser public assurance that the article is in that condition, and of
that quality, which makes it merchantable and fit for use or
consumption."[1760] In Turner _v._ Maryland[1761] the Supreme Court
listed as recognized elements of inspection laws, the "quality of the
article, form, capacity, dimensions, and weight of package, mode of
putting up, and marking and branding of various kinds, * * *" .[1762] It
sustained as an inspection law a charge for storage and inspection
imposed upon every hogshead of tobacco grown in the State and intended
for export, which the law required to be brought to a State warehouse
to be inspected and branded. The Court has cited this section as a
recognition of a general right of the States to pass inspection laws,
and to bring, within their reach articles of interstate, as well as of
foreign, commerce.[1763] But on the ground that, "it has never been
regarded as within the legitimate scope of inspection laws to forbid
trade in respect to any known article of commerce, irrespective of its
condition and quality, merely on account of its intrinsic nature and the
injurious consequences of its use or abuse," it held that a State law
forbidding the importation of intoxicating liquors into the State could
not be sustained as an inspection law.[1764] Since the adoption of the
Twenty-first Amendment, such State legislation is valid whether
classified as an inspection law or not.


Clause 3. 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.


TONNAGE DUTIES

The prohibition against tonnage duties embraces all taxes and duties,
regardless of their name or form, whether measured by the tonnage of the
vessel or not, which are in effect charges for the privilege of
entering, trading in, or lying in a port.[1765] But it does not extend
to charges made by State authority, even if graduated according to
tonnage,[1766] for services rendered to the vessel, such as pilotage,
towage, charges for loading and unloading cargoes, wharfage, or
storage.[1767] For the purpose of determining wharfage charges, it is
immaterial whether the wharf was built by the State, a municipal
corporation or an individual; where the wharf is owned by a city, the
fact that the city realized a profit beyond the amount expended does not
render the toll objectionable.[1768] The services of harbor masters for
which fees are allowed must be actually rendered, and a law permitting
harbor masters or port wardens to impose a fee in all cases is
void.[1769] A State may not levy a tonnage duty to defray the expenses
of its quarantine system,[1770] but it may exact a fixed fee for
examination of all vessels passing quarantine.[1771] A State license fee
for ferrying on a navigable river is not a tonnage tax, but rather is a
proper exercise of the police power, and the fact that a vessel is
enrolled under federal law does not exempt it.[1772] In the State
Tonnage Tax Cases,[1773] an annual tax on steamboats measured by their
registered tonnage was held invalid despite the contention that it was a
valid tax on the steamboat as property.


KEEPING TROOPS

This provision contemplates the use of the State's military power to put
down an armed insurrection too strong to be controlled by civil
authority;[1774] and the organization and maintenance of an active State
militia is not a keeping of troops in time of peace within the
prohibition of this clause.[1775]


INTERSTATE COMPACTS


Background of Clause

Except for the single limitation that the consent of Congress must be
obtained, the original inherent sovereign rights of the States to make
compacts with each other was not surrendered under the
Constitution.[1776] "The compact," as the Supreme Court has put it,
"adapts to our Union of sovereign States the age-old treaty-making power
of independent sovereign nations."[1777] In American history the compact
technique can be traced back to the numerous controversies which arose
over the ill-defined boundaries of the original colonies. These disputes
were usually resolved by negotiation, with the resulting agreement
subject to approval by the Crown.[1778] When the political ties with
Britain were broken the Articles of Confederation provided for appeal
to Congress in all disputes between two or more States over boundaries
or "any cause whatever"[1779] and required the approval of Congress for
any "treaty confederation or alliance" to which a State should be a
party.[1780] The framers of the Constitution went further. By the first
clause of this section they laid down an unqualified prohibition against
"any treaty, alliance or confederation"; and by the third clause they
required the consent of Congress for "any agreement or compact." The
significance of this distinction was pointed out by Chief Justice Taney
in Holmes _v._ Jennison.[1781] "As these words ('agreement or compact')
could not have been idly or superfluously used by the framers of the
Constitution, they cannot be construed to mean the same thing with the
word treaty. They evidently mean something more, and were designed to
make the prohibition more comprehensive. * * * The word 'agreement,'
does not necessarily import and direct any express stipulation; nor is
it necessary that it should be in writing. If there is a verbal
understanding, to which both parties have assented, and upon which both
are acting, it is an 'agreement.' And the use of all of these terms,
'treaty,' 'agreement,' 'compact,' show that it was the intention of the
framers of the Constitution to use the broadest and most comprehensive
terms; and that they anxiously desired to cut off all connection or
communication between a State and a foreign power; and we shall fail to
execute that evident intention, unless we give to the word 'agreement'
its most extended signification; and so apply it as to prohibit every
agreement, written or verbal, formal or informal, positive or implied,
by the mutual understanding of the parties."[1782] But in Virginia _v._
Tennessee,[1783] decided more than a half century later, the Court
shifted position, holding that the unqualified prohibition of compacts
and agreements between States without the consent of Congress did not
apply to agreements concerning such minor matters as adjustments of
boundaries, which have no tendency to increase the political powers of
the contractant States or to encroach upon the just supremacy of the
United States. This divergence of doctrine may conceivably have
interesting consequences.[1784]


Subject Matter of Interstate Compacts

For many years after the Constitution was adopted, boundary disputes
continued to predominate as the subject matter of agreements among the
States. Since the turn of the twentieth century, however, the interstate
compact has been used to an increasing extent as an instrument for State
cooperation in carrying out affirmative programs for solving common
problems. The execution of vast public undertakings, such as the
development of the Port of New York by the Port Authority created by
compact between New York and New Jersey, flood control, the prevention
of pollution, and the conservation and allocation of water supplied by
interstate streams, are among the objectives accomplished by this
means.[1785] Another important use of this device was recognized by
Congress in the act of June 6, 1934,[1786] whereby it consented in
advance to agreements for the control of crime. The first response to
this stimulus was the Crime Compact of 1934, providing for the
supervision of parolees and probationers, to which forty-five States had
given adherence by 1949.[1787] Subsequently Congress has authorized, on
varying conditions, compacts touching the production of tobacco, the
conservation of natural gas, the regulation of fishing in inland waters,
the furtherance of flood and pollution control, and other matters.
Moreover, since 1935 at least thirty-six States, beginning with New
Jersey, have set up permanent commissions for interstate cooperation,
which have led to the formation of a Council of State Governments
("Cosgo" for short), the creation of special commissions for the study
of the crime problem, the problem of highway safety, the trailer
problem, problems created by social security legislation, etc., and the
framing of uniform State legislation for dealing with some of
these.[1788]


Consent of Congress

The Constitution makes no provision as to the time when the consent of
Congress shall be given or the mode or form by which it shall be
signified.[1789] While the consent will usually precede the compact or
agreement, it may be given subsequently where the agreement relates to a
matter which could not be well considered until its nature is fully
developed.[1790] The required consent is not necessarily an expressed
consent; it may be inferred from circumstances.[1791] It is sufficiently
indicated, when not necessary to be made in advance, by the approval of
proceedings taken under it.[1792] The consent of Congress may be
granted conditionally "upon terms appropriate to the subject and
transgressing no constitutional limitations."[1793] And in a recent
instance it has not been forthcoming at all. In Sipuel _v._ Board of
Regents,[1794] decided in 1948, the Supreme Court ruled that the equal
protection clause of Amendment XIV requires a State maintaining a law
school for white students to provide legal education for a Negro
applicant, and to do so as soon as it does for applicants of any other
group. Shortly thereafter the governors of 12 Southern States convened
to canvass methods for meeting the demands of the Court. There resulted
a compact to which 13 State legislatures have consented and by which a
Board of Control for Southern Regional Education is set up. Although
some early steps were taken toward obtaining Congress's consent to the
agreement, the effort was soon abandoned, but without affecting the
cooperative educational program, which to date has not been extended to
the question of racial segregation.[1795] Finally, Congress does not, by
giving its consent to a compact, relinquish or restrict its own powers,
as for example, its power to regulate interstate commerce.[1796]


Grants of Franchise to Corporation by Two States

It is competent for a railroad corporation organized under the laws of
one State, when authorized so to do by the consent of the State which
created it, to accept authority from another State to extend its
railroad into such State and to receive a grant of powers to own and
control, by lease or purchase, railroads therein, and to subject itself
to such rules and regulations as may be prescribed by the second State.
Such legislation on the part of two or more States is not, in the
absence of inhibitory legislation by Congress, regarded as within the
constitutional prohibition of agreements or compacts between
States.[1797]


Legal Effect of Interstate Compacts

Whenever, by the agreement of the States concerned and the consent of
Congress, an interstate compact comes into operation, it has the same
effect as a treaty between sovereign powers. Boundaries established by
such compacts become binding upon all citizens of the signatory States
and are conclusive as to their rights.[1798] Private rights may be
affected by agreements for the equitable apportionment of the water of
an interstate stream, without a judicial determination of existing
rights.[1799] Valid interstate compacts are within the protection of the
obligation of contracts clause and specific enforcement of them is
within the original jurisdiction of the Supreme Court.[1800] Congress
also has authority to compel compliance with such a compact.[1801]


ADDENDUM

Nor may a State read herself out of a compact which she has ratified and
to which Congress has consented by pleading that under the State's
constitution as interpreted by the highest State court she had lacked
power to enter into such an agreement and was without power to meet
certain obligations thereunder. The final construction of the State
constitution in such a case rests with the Supreme Court.[1802]


Notes

[1] 4 Wheat. 316, 405 (1819).

[2] _See_ pp. 378-379.

[3] 206 U.S. 46, 82 (1907).

[4] 4 Wheat. at 407.

[5] Ibid. 411.

[6] Ibid. 421.

[7] 2 Story, Commentaries, § 1256. _See also_ ibid. §§ 1286 and 1330.

[8] 1 Pet. 511 (1828).

[9] Ibid. at 542.

[10] Ibid. 543.

[11] Prigg _v._ Pennsylvania, 16 Pet. 539, 616, 618-619 (1842).

[12] Juilliard _v._ Greenman, 110 U.S. 421, 449-450 (1884). _See also_
Justice Bradley's concurring opinion in Knox _v._ Lee, 12 Wall. 457, 565
(1871).

[13] United States _v._ Jones, 109 U.S. 513 (1883).

[14] United States _v._ Kagama, 118 U.S. 375 (1886).

[15] Fong Yue Ting _v._ United States, 149 U.S. 698 (1893).

[16] Hines _v._ Davidowitz et al., 312 U.S. 52 (1941).

[17] 299 U.S. 304 (1936).

[18] Ibid. 315, 316-317, 318 _passim_. For anticipations of this
conception of the powers of the National Government in the field of
foreign relations, _see_ Penhallow _v._ Doane, 3 Dall. 54, 80, 81
(1795); _also_ ibid. 74 and 76 (argument of counsel); _also_ Chief
Justice Taney's opinion in Holmes _v._ Jennison, 14 Pet. 540, 575-576
(1840).

[19] Locke, Second Treatise on Government, Chapter XI § 141 (1691).

[20] 276 U.S. 394 (1928).

[21] Ibid. 405, 406.

[22] Wayman _v._ Southard, 10 Wheat. 1 (1825).

[23] The Brig Aurora, 7 Cr. 382 (1813).

[24] Wayman _v._ Southard, 10 Wheat. 1, 42 (1825).

[25] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 398 (1940);
United States _v._ Rock Royal Co-operative, 307 U.S. 533, 577 (1939).

[26] United States _v._ Rock Royal Co-operative, 307 U.S. 533, 576
(1939).

[27] Schechter Poultry Corp. _v._ United States, 295 U.S. 495, 539
(1935); Opp Cotton Mills _v._ Administrator, 312 U.S. 126, 144 (1941);
American Power & Light Co. _v._ Securities & Exchange Comm., 329 U.S.
90, 107, 108 (1946). _Cf._ Wichita R. & L. Co. _v._ Public Utilities
Comm., 260 U.S. 48, 59 (1922).

[28] New York Cent. Securities Corp. _v._ United States, 287 U.S. 12, 24
(1932).

[29] Federal Radio Commission _v._ Nelson Bros. Bond & Mortgage Co., 289
U.S. 266, 285 (1933); National Broadcasting Co. _v._ United States, 319
U.S. 190, 225 (1943); Federal Communications Commission _v._ Pottsville
Broadcasting Co., 309 U.S. 134, 138 (1940).

[30] Lichter _v._ United States, 334 U.S. 742, 783 (1948).

[31] Panama Refining Co. _v._ Ryan, 293 U.S. 388 (1935); Schechter
Poultry Corp. _v._ United States, 295 U.S. 495 (1985).

[32] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939);
Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381 (1940); Bowles
_v._ Willingham, 321 U.S. 503, 514 (1944); Yakus _v._ United States, 321
U.S. 414, 424 (1944).

[33] Fahey _v._ Mallonee, 332 U.S. 245 (1947).

[34] Ibid. 250.

[35] Ex parte Kollock, 165 U.S. 526 (1897).

[36] Buttfield _v._ Stranahan, 192 U.S. 470 (1904).

[37] United States _v._ Grimaud, 220 U.S. 506 (1911).

[38] United States _v._ Shreveport Grain & Elevator Co., 287 U.S. 77, 85
(1932).

[39] Currin _v._ Wallace, 306 U.S. 1 (1939).

[40] Avent _v._ United States, 266 U.S. 127 (1924).

[41] United States _v._ Rock Royal Co-operative, 307 U.S. 533 (1939).

[42] Yakus _v._ United States, 321 U.S. 414 (1944).

[43] Bowles _v._ Willingham, 321 U.S. 503 (1944).

[44] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 397 (1940).

[45] Hirabayashi _v._ United States, 320 U.S. 81, 104 (1943); Korematsu
_v._ United States, 323 U.S. 214 (1944).

[46] Fahey _v._ Mallonee, 332 U.S. 245 (1947).

[47] Mulford _v._ Smith, 307 U.S. 38 (1939).

[48] Interstate Commerce Comm'n. _v._ Goodrich Transit Co., 224 U.S.
194, 214 (1912).

[49] Although reversing the decision of the State supreme court that
rates fixed by the commission were not subject to judicial review, the
Supreme Court implicitly sanctioned the exercise of rate-making power by
such bodies. Chicago, M. & St. P.R. Co. _v._ Minnesota, 134 U.S. 418
(1890).

[50] Hampton & Co. _v._ United States, 276 U.S. 394, 408 (1928).

[51] State of Minnesota _v._ Chicago, M. & St. P.R. Co. 38 Minn. 281,
301 (1888).

[52] Interstate Commerce Commission _v._ Louisville & N.R. Co., 227 U.S.
88 (1913); New York _v._ United States, 331 U.S. 284, 340-350 (1947) and
cases cited therein. _See also_ New York et al. _v._ United States, 342
U.S. 882 (1951).

[53] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907).

[54] First Nat. Bank _v._ Fellows, ex rel. Union Trust Co., 244 U.S. 416
(1917).

[55] Mahler _v._ Eby, 264 U.S. 32 (1924); United States ex rel. Tisi
_v._ Tod, 264 U.S. 131 (1924).

[56] New York Central Securities Corp. _v._ United States, 287 U.S. 12,
25 (1932).

[57] Federal Radio Comm'n. _v._ Nelson Bros. Bond & Mortgage Co., 289
U.S. 266 (1933).

[58] National Broadcasting Co. _v._ United States, 319 U.S. 190 (1943).

[59] 50 Stat. 246, as amended, 7 U.S.C. § 601 _et seq._

[60] Brannan _v._ Stark, 342 U.S. 451 (1952). Justice Black, with whom
Justices Reed and Douglas concurred, dissented, saying: "In striking
down these provisions of the Secretary's order, the Court has departed
from many principles it has previously announced in connection with its
supervision over administrative agents. Under these principles, the
Court would refrain from setting aside administrative findings of fact
when supported by substantial evidence; we would give weight to the
interpretation of a statute by its administrators; when, administrators
have interpreted broad statutory terms, such, as here involved, we would
recognize that it is our duty to accept this interpretation even though
it was not 'the only reasonable one' or the one 'we would have reached
had the question arisen in the first instance in judicial proceedings.'
Unemployment Comm'n _v._ Aragon, 329 U.S. 143, 153 (1946)." Ibid. 484.

[61] Jackson _v._ Roby, 109 U.S. 440 (1883); Erhardt _v._ Boaro, 113
U.S. 527 (1885); Butte City Water Co. _v._ Baker, 196 U.S. 119 (1905).

[62] St. Louis, I.M. & S.R. Co. _v._ Taylor, 210 U.S. 281, 286 (1908).

[63] 295 U.S. 495, 537 (1935).

[64] 298 U.S. 238, 311 (1936).

[65] Currin _v._ Wallace, 306 U.S. 1 (1939); United States _v._ Rock
Royal Co-operative, 307 U.S. 533, 577 (1939).

[66] Currin _v._ Wallace, 306 U.S. 1, 15, 16 (1939).

[67] 7 Cr. 382 (1813).

[68] Ibid. 388.

[69] 143 U.S. 649 (1892).

[70] Ibid. 691.

[71] Ibid. 692, 693.

[72] Hampton Jr. & Co. _v._ United States, 276 U.S. 394 (1928).

[73] 299 U.S. 304, 312 (1936).

[74] Ibid. 319-322.--United States _v._ Chemical Foundation, 272 U.S. 1
(1926) presented the anomalous situation of the United States suing to
set aside a sale of alien property sold by one of its agents, the Alien
Property Custodian, by authority of the President. The government
contended that statute under which the sale was made was
unconstitutional because, in giving the President full power of
disposition of the property, it delegated legislative power to the
President. Declaring that "It was peculiarly within the province of the
Commander-in-Chief to know the facts and to determine what disposition
should be made of enemy properties in order effectively to carry on the
war," the Court affirmed a decree dismissing the suit. Ibid. 12.

[75] 293 U.S. 388 (1935).

[76] 312 U.S. 126 (1941).

[77] Ibid. 144, 145.

[78] White House Digest of Provisions of Law Which Would Become
Operative upon Proclamation of a National Emergency by the President.
The Digest is dated December 11, 1950. It was released to the press on
December 16th. 15 F.R. 9029.

[79] United States _v._ Grimaud, 220 U.S. 506 (1911).

[80] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398, 404 (1944).

[81] United States _v._ Eaton, 144 U.S. 677 (1892).

[82] Steuart & Bros. Inc. _v._ Bowles, 322 U.S. 398 (1944).

[83] Kraus & Bros. _v._ United States, 327 U.S. 614 (1946).

[84] Landis, Constitutional Limitations on the Congressional Power of
Investigation, 40 Harvard Law Review, 153, 159-166 (1926).

[85] 3 Annals of Congress, 493 (1792).

[86] In 1800, Secretary of the Treasury, Oliver Wolcott, Jr., addressed
a letter to the House of Representatives advising them of his
resignation from office and inviting an investigation of his office.
Such an inquiry was made. 10 Annals of Congress 786-788 (1800).

[87] 8 Cong. Deb. 2160 (1832).

[88] 13 Cong. Deb. 1057 (1836).

[89] H.R. Rep. No. 194, 24th Cong., 2d sess., Ser. No. 307, 1, 12, 31
(1837).

[90] Cong. Globe, 36th Cong. 1st sess. 1100-1109 (1860).

[91] 103 U.S. 168 (1881).

[92] 273 U.S. 135, 177, 178 (1927).

[93] 4 Cong. Deb. 862, 868, 888, 889 (1827).

[94] 103 U.S. 168 (1881).

[95] 154 U.S. 447 (1894).

[96] Ibid. 478. _See also_ Harriman _v._ Interstate Commerce Commission,
211 U.S. 407 (1908); Smith _v._ Interstate Commerce Commission, 245 U.S.
33 (1917).

[97] 273 U.S. 135 (1927).

[98] Ibid. 154, 175.

[99] 103 U.S. 168, 192-196 (1881).

[100] 166 U.S. 661 (1897).

[101] Ibid. 670.

[102] 273 U.S. 135, 178 (1927).

[103] 279 U.S. 263 (1929).

[104] Ibid. 295.

[105] In re Chapman, 166 U.S. 661 (1897).

[106] 279 U.S. 597 (1929).

[107] 6 Wheat. 204 (1821).

[108] 243 U.S. 521 (1917).

[109] Ibid. 542.

[110] 294 U.S. 125 (1935).

[111] Ibid. 147, 150.

[112] 6 Wheat. 204, 231 (1821).

[113] In re Chapman, 166 U.S. 661, 671-672 (1897).

[114] United States _v._ Bryan, 339 U.S. 323, 330 (1950); United States
_v._ Fleischman, 339 U.S. 349 (1950).

[115] Christoffel _v._ United States, 338 U.S. 84, 89, 90 (1949).

[116] Minor _v._ Happersett, 21 Wall. 162, 171 (1875); Breedlove _v._
Suttles, 302 U.S. 277 (1937).

[117] Ex parte Yarbrough, 110 U.S. 651 (1884); Wiley _v._ Sinkler, 179
U.S. 58, 62 (1900); Swafford _v._ Templeton, 185 U.S. 487 (1902); United
States _v._ Classic, 313 U.S. 299 (1941).

[118] United States _v._ Classic, 313 U.S. 299, 315 (1941).

[119] United States _v._ Mosley, 238 U.S. 383 (1915); United States _v._
Saylor, 322 U.S. 385, 387 (1944).

[120] United States _v._ Classic, 313 U.S. 299 (1941).

[121] United States _v._ Mosley, 238 U.S. 383 (1915).

[122] 35 Stat. 1092 (1909); 18 U.S.C. § 51 (1946), superseded by 62
Stat. 696 (1948); 18 U.S.C. § 241 (Supp. II, 1946 ed.).

[123] United States _v._ Mosley, 238 U.S. 383 (1915).

[124] United States _v._ Saylor, 322 U.S. 385 (1944).

[125] United States _v._ Bathgate, 246 U.S. 220 (1918). _See also_
United States _v._ Gradwell, 243 U.S. 476 (1917).

[126] Sen. Rep. 904, 74th Cong., 1st sess. (1935); 79 Cong. Rec.
9651-9653 (1935).

[127] No. LX.

[128] Hinds' Precedents of the House of Representatives, I: §§ 443,
448-458 (1907).

[129] 202 U.S. 344 (1906).

[130] Ibid. 369-370.

[131] Hinds' Precedents of the House of Representatives, I: §§ 474-477
(1907).

[132] 69 Cong. Rec. 1718 (1928).

[133] Hinds' Precedents of the House of Representatives, I: § 414
(1907).

[134] Ibid. §§ 415-417.

[135] The part of this clause relating to the mode of apportionment of
Representative among the several States, was changed by the Fourteenth
Amendment, § 2 (p. 1170) and as to taxes on incomes without
apportionment, by the Sixteenth Amendment (p. 1191).

[136] Legal Tender Cases, 12 Wall. 457, 536 (1871).

[137] 46 Stat. 21 (1929). This same act penalizes refusal to cooperate
properly with the census taker by answering his questions and in other
ways. 13 U.S.C. 209.

[138] The Senate is a "continuing body"--McGrain _v._ Daugherty, 273
U.S. 135, 181-182 (1927).

[139] 5 Stat. 491 (1842). This requirement was dropped in 1850 (9 Stat.
428, 432-433) but was renewed in 1862 (12 Stat. 572). _See also_ Joel
Francis Paschal, The House of Representatives "Grand Depository of the
Democratic Principle", Spring 1952 Issue of Law and Contemporary
Problems (Duke University School of Law), 276-289.

[140] 14 Stat. 243 (1866).

[141] 16 Stat. 144 (1870); 16 Stat. 254 (1870); 17 Stat. 347-349 (1872).

[142] 28 Stat. 36 (1894).

[143] United States _v._ Reese, 92 U.S. 214 (1876).

[144] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S.
399 (1880); United States _v._ Gale, 109 U.S. 65 (1883).

[145] 241 U.S. 565 (1916).

[146] Smiley _v._ Holm, 285 U.S. 355 (1932); Koenig _v._ Flynn, 285 U.S.
375 (1932); Carroll _v._ Becker, 285 U.S. 380 (1932).

[147] 46 Stat. 21 (1929).

[148] 37 Stat. 13, 14 (1911).

[149] Wood _v._ Broom, 287 U.S. 1 (1932).

[150] 328 U.S. 549 (1946).

[151] Ibid. 556, 566.

[152] Ibid. 570-571.

[153] Ex parte Yarbrough, 110 U.S. 651, 661 (1884); United States _v._
Mosley, 238 U.S. 383 (1915); United States _v._ Saylor, 322 U.S. 385
(1944).

[154] In re Coy, 127 U.S. 731, 752 (1888).

[155] Ex parte Siebold, 100 U.S. 371 (1880); Ex parte Clarke, 100 U.S.
309 (1880); United States _v._ Gale, 109 U.S. 65 (1883).

[156] United States _v._ Wurzbach, 280 U.S. 396 (1930).

[157] Newberry _v._ United States, 256 U.S. 232 (1921).

[158] United States _v._ Classic, 313 U.S. 299, 318 (1941).

[159] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 616
(1929).

[160] In re Loney, 134 U.S. 372 (1890).

[161] Cannon's Precedents of the House of Representatives, VI: §§ 72-74,
180 (1936). _Cf._ Newberry _v._ United States, 256 U.S. 232, 258 (1921).

[162] Barry _v._ United States ex rel. Cunningham, 279 U.S. 597, 614
(1929).

[163] Ibid. 615.

[164] Hinds' Precedents of the House of Representatives, IV: § 2895-2905
(1907).

[165] 144 U.S. 1 (1892).

[166] Ibid. 5-6.

[167] Rule V.

[168] Hinds' Precedents of the House of Representatives, IV: § 2910-2915
(1907); Cannon's Precedents of the House of Representatives, VI: §§ 645,
646 (1936).

[169] United States _v._ Ballin, 144 U.S. 1, 5 (1892). It is, of course,
by virtue of its power to determine "rules of its proceedings" that the
Senate enables its members to prevent the transaction of business by
what are termed "filibusters". The question has been raised whether the
rules which support a filibuster are constitutionally compatible with
the clause in the preceding section: "A majority of each [House] shall
constitute a quorum to do business". _See_ Franklin Burdette,
Filibustering in the Senate (Princeton University Press, 1940), 6, 61,
111-112, 227-229, 232-233, 237-238. The Senate is "a continuing body".
McGrain _v._ Daugherty, 273 U.S. 139, 181-182 (1927). Hence its rules
remain in force from Congress to Congress except as they are changed
from time to time, whereas those of the House are readopted at the
outset of each new Congress.

[170] 286 U.S. 6 (1932).

[171] 338 U.S. 84 (1949).

[172] Title 22, § 2501.

[173] 338 U.S. at 93-95, citing Field _v._ Clark, 143 U.S. 649, 669-673
(1892); United States _v._ Ballin, 144 U.S. 1, 5 (1892); and other
cases.

[174] Burton _v._ United States, 202 U.S. 344, 356 (1906).

[175] In re Chapman, 166 U.S. 661, 669, 670 (1897).

[176] I Story, Constitution, § 840, quoted with approval in Field _v._
Clark, 143 U.S. 649, 670 (1892).

[177] United States _v._ Ballin, 144 U.S. 1, 4 (1892).

[178] Field _v._ Clark, 143 U.S. 649 (1892); Flint _v._ Stone Tracy Co.,
220 U.S. 107, 143 (1911). A parallel rule holds in the case of a duly
authenticated official notice to the Secretary of State that a State
legislature has ratified a proposed amendment to the Constitution. Leser
_v._ Garnett, 258 U.S. 130, 137 (1922); _see also_ Coleman _v._ Miller,
307 U.S. 433 (1939). In Christoffel _v._ United States, 338 U.S. 84
(1949), a sharply divided Court ruled that, in a case brought under the
Perjury Statute of the District of Columbia (§ 22-2501 of the D.C. Code)
for alleged perjurious testimony before a Committee of the House of
Representatives, the trial Court erred in charging the jury that it was
free to ignore testimony that less than a quorum of the Committee was in
attendance when the alleged perjury was committed. Four Justices
dissented; and curiously enough only four of the majority were present
when the opinion was delivered, the fifth being indisposed. Remarks
Justice Jackson in his concurring opinion in United States _v._ Bryan
(339 U.S. 323 (1950)), in which the ruling in Christoffel was held to be
inapplicable: "It is ironic that this interference with legislative
procedures was promulgated by exercise within the Court of the very
right of absentee participation denied to Congressmen." Ibid. 344. It
seems unlikely that the Christoffel decision seriously undermines Field
_v._ Clark.

[179] Page _v._ United States, 127 U.S. 67 (1888).

[180] Long _v._ Ansell, 293 U.S. 76 (1934).

[181] Ibid. 83.

[182] United States _v._ Cooper, 4 Dall. 341 (1800).

[183] Williamson _v._ United States, 207 U.S. 425, 446 (1908).

[184] Kilbourn _v._ Thompson, 103 U.S. 168 (1881).

[185] Ibid.

[186] 4 Mass. 1 (1808).

[187] Kilbourn _v._ Thompson, 103 U.S. 168, 203, 204 (1881).

[188] Ibid. 205.

[189] Justice Frankfurter for the Court in Tenney _v._ Brandhove, 341
U.S. 367, 377 (1951). Justice Douglas dissented: "* * * I do not agree
that all abuses of legislative committees are solely for the legislative
body to police. We are dealing here with a right protected by the
Constitution--the right of free speech. The charge * * * is that a
legislative committee brought the weight of its authority down on
respondent for exercising his right of free speech. Reprisal for
speaking is as much an abridgment as a prior restraint. If a committee
departs so far from its domain [as?] to deprive a citizen of a right
protected by the Constitution, I can think of no reason why it should be
immune". Ibid. 382. _See also_ Barsky _v._ United States, 167 F. (2d)
241 (1948); certiorari denied, 334 U.S. 843 (1948).

[190] Hinds' Precedents of the House of Representatives, I: § 493
(1907); Cannon's Precedents of the House of Representatives, VI: §§ 63,
64 (1936).

[191] Hinds' Precedents of the House of Representatives, I: §§ 496-499
(1907).

[192] 34 Stat. 948 (1907).

[193] 35 Stat. 626 (1909).

[194] The situation gave rise to the case of Ex parte Albert Levitt,
Petitioner, 302 U.S. 633 (1937). This was the case in which the Court
declined to pass upon the validity of Justice Black's appointment. It
seems curious that the Court, in rejecting petitioner's application, did
not point out that it was being asked to assume original jurisdiction
contrary to the decision in Marbury _v._ Madison, 1 Cr. 137 (1803).

[195] I Story, Constitution, § 880.

[196] Twin City Nat. Bank _v._ Nebeker, 167 U.S. 196 (1897).

[197] Millard _v._ Roberts, 202 U.S. 429 (1906).

[198] Flint _v._ Stone Tracy Co., 220 U.S. 107, 143 (1911).

[199] Rainey _v._ United States, 232 U.S. 310 (1914).

[200] La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 453
(1899).

[201] Edwards _v._ United States, 286 U.S. 482 (1932). On one occasion
in 1936, delay in presentation of a bill enabled the President to sign
it 23 days after the adjournment of Congress. Schmeckebier, Approval of
Bills After Adjournment of Congress, 33 American Political Science
Review 52 (1939).

[202] Gardner _v._ Collector, 6 Wall. 499 (1868).

[203] Ibid. 504. _See also_ Burgess _v._ Salmon, 97 U.S. 381, 383
(1878).

[204] Matthews _v._ Zane, 7 Wheat. 164, 211 (1822).

[205] Lapeyre _v._ United States, 17 Wall. 191, 198 (1873).

[206] Okanogan Indians _v._ United States, 279 U.S. 655 (1929).

[207] Wright _v._ United States, 302 U.S. 583 (1938).

[208] Missouri P.R. Co. _v._ Kansas, 248 U.S. 276 (1919).

[209] 20 Wall. 92, 112, 113 (1874).

[210] 12 Stat. 589 (1862).

[211] 54th Cong., 2d sess., S. Doc. 1335; Hinds' Precedents of the House
of Representatives, IV: § 3483 (1907).

[212] _See e.g._, Lend Lease Act of March 11, 1941 (55 Stat. 31); First
War Powers Act of December 18, 1941 (55 Stat. 838); Emergency Price
Control Act of January 30, 1942 (56 Stat. 23); Stabilization Act of
October 2, 1942 (56 Stat. 765); War Labor Disputes Act of June 25, 1943
(57 Stat. 163).

[213] Reorganization Act of June 20, 1949 (63 Stat. 203).

[214] Reorganization Act of April 3, 1939 (53 Stat. 561).

[215] Hollingsworth _v._ Virginia, 3 Dall. 378 (1798).

[216] License Tax Cases, 5 Wall. 462, 471 (1867).

[217] Brushaber _v._ Union Pac. R.R., 240 U.S. 1 (1916).

[218] Ibid. 12.

[219] 253 U.S. 245 (1920).

[220] 268 U.S. 501 (1925).

[221] 307 U.S. 277 (1939).

[222] 11 Wall. 113 (1871).

[223] Graves _v._ O'Keefe, 306 U.S. 466 (1939).

[224] 304 U.S. 405, 414 (1938).

[225] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[226] United States _v._ Baltimore & O.R. Co., 17 Wall. 322 (1873).

[227] 157 U.S. 429 (1895).

[228] 4 Wheat. 316 (1819).

[229] Indian Motorcycle Co. _v._ United States, 283 U.S. 570 (1931).

[230] 12 Wheat. 419, 444 (1827).

[231] Snyder _v._ Bettman, 190 U.S. 249, 254 (1903).

[232] South Carolina _v._ United States, 199 U.S. 437 (1905). _See also_
Ohio _v._ Helvering, 292 U.S. 360 (1934).

[233] 220 U.S. 107 (1911).

[234] Greiner _v._ Lewellyn, 258 U.S. 384 (1922).

[235] Wheeler Lumber Bridge & Supply Co. _v._ United States, 281 U.S.
572 (1930).

[236] University of Illinois _v._ United States, 289 U.S. 48 (1933).

[237] Allen _v._ Regents, 304 U.S. 439 (1938).

[238] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949).

[239] Metcalf _v._ Mitchell, 269 U.S. 514 (1926).

[240] Helvering _v._ Powers, 293 U.S. 214 (1934).

[241] Willcutts _v._ Bunn, 282 U.S. 216 (1931).

[242] Helvering _v._ Mountain Producers Corp., 303 U.S. 376 (1938),
overruling Burnet _v._ Coronado Oil & Gas Co., 285 U.S. 393 (1932).

[243] New York _v._ United States, 326 U.S. 572, 584 (1946), (concurring
opinion of Justice Rutledge).

[244] 304 U.S. 405 (1938).

[245] Ibid. 419-420.

[246] 326 U.S. 572 (1946).

[247] Ibid. 584.

[248] Ibid. 589-590.

[249] Ibid. 596.

[250] Wilmette Park District _v._ Campbell, 338 U.S. 411 (1949).

[251] _See also_ article I, section 9, clause 4.

[252] LaBelle Iron Works _v._ United States, 256 U.S. 377 (1921);
Brushaber _v._ Union P.R. Co., 240 U.S. 1 (1916); Head Money Cases, 112
U.S. 580 (1884).

[253] Knowlton _v._ Moore, 178 U.S. 41 (1900).

[254] Fernandez _v._ Wiener, 326 U.S. 340 (1945); Riggs _v._ Del Drago,
317 U.S. 95 (1942); Phillips _v._ Commissioner of Internal Revenue, 283
U.S. 589 (1931); Poe _v._ Seaborn, 282 U.S. 101, 117 (1930).

[255] Florida _v._ Mellon, 273 U.S. 12 (1927).

[256] Downes _v._ Bidwell, 182 U.S. 244 (1901).

[257] 194 U.S. 486 (1904). The Court recognized that Alaska was an
incorporated territory but took the position that the situation in
substance was the same as if the taxes had been directly imposed by a
territorial legislature for the support of the local government.

[258] License Tax Cases, 5 Wall. 462, 471 (1867).

[259] United States _v._ Yuginovich, 256 U.S. 450 (1921).

[260] United States _v._ Constantine, 296 U.S. 287, 293 (1935).

[261] License Tax Cases, 5 Wall. 462, 471 (1867).

[262] Felsenheld _v._ United States, 186 U.S. 126 (1902).

[263] In re Kollock, 105 U.S. 526 (1897).

[264] United States _v._ Doremus, 249 U.S. 86 (1919). _Cf._ Nigro _v._
United States, 276 U.S. 332 (1928).

[265] Sonzinsky _v._ United States, 300 U.S. 506 (1937).

[266] McCray _v._ United States, 195 U.S. 27 (1904).

[267] Justice Clark speaking for the Court in United States _v._
Sanchez, 340 U.S. 42, 44 (1950). _See also_ Sonzinsky _v._ United
States, 300 U.S. 506, 513-514 (1937).

[268] Sunshine Anthracite Coal Co. _v._ Adkins, 310 U.S. 381, 383
(1940). _See also_ Head Money Cases, 112 U.S. 580, 596 (1884).

[269] Bailey _v._ Drexel Furniture Co., 259 U.S. 20 (1922); Hill _v._
Wallace, 259 U.S. 44 (1922); Helwig _v._ United States, 188 U.S. 605
(1903).

[270] 296 U.S. 287 (1935).

[271] 1 Stat. 24 (1789).

[272] 276 U.S. 394 (1928).

[273] Ibid. 411-412.

[274] III Writings of Thomas Jefferson, 147-149 (Library Edition, 1904).

[275] James Francis Lawson, The General Welfare Clause (1926).

[276] The Federalist Nos. 30 and 34.

[277] Ibid. No. 41.

[278] 1 Stat. 229 (1792).

[279] 2 Stat. 357 (1806).

[280] In an advisory opinion which it rendered for President Monroe at
his request on the power of Congress to appropriate funds for public
improvements, the Court answered that such appropriations might be
properly made under the war and postal powers. _See_ E.F. Albertsworth,
"Advisory Functions in the Supreme Court," 23 Georgetown L.J. 643,
644-647 (1935). Monroe himself ultimately adopted the broadest view of
the spending power, from which, however, he carefully excluded any
element of regulatory or police power. _See_ his "Views of the President
of the United States on the Subject of Internal Improvements," of May 4,
1822, 2 Richardson, Messages and Papers of the Presidents, 713-752.

[281] The Council of State Governments, Federal Grants-in-Aid, 6-14
(1949).

[282] 127 U.S. 1 (1888).

[283] 255 U.S. 180 (1921).

[284] 262 U.S. 447 (1923). _See also_ Alabama Power Co. _v._ Ickes, 302
U.S. 464 (1938).

[285] 160 U.S. 668 (1896).

[286] Ibid. 681.

[287] 297 U.S. 1 (1936). _See also_ Cleveland _v._ United States, 323
U.S. 329 (1945).

[288] 297 U.S. 1, 65, 66 (1936).

[289] Justice Stone, speaking for himself and two other Justices,
dissented on the ground that Congress was entitled when spending the
national revenues for the "general welfare" to see to it that the
country got its money's worth thereof, and that the condemned provisions
were "necessary and proper" to that end. United States _v._ Butler, 297
U.S. 1, 84-86 (1936).

[290] 301 U.S. 548 (1937).

[291] Ibid. 591.

[292] Ibid. 590.

[293] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[294] 301 U.S. 619 (1937).

[295] 301 U.S. 548, 589, 590 (1937).

[296] 330 U.S. 127 (1947).

[297] 54 Stat. 767 (1940).

[298] 330 U.S. 127, 143.

[299] United States _v._ Realty Co., 163 U.S. 427 (1896); Pope _v._
United States, 323 U.S. 1, 9 (1944).

[300] Cincinnati Soap Co. _v._ United States, 301 U.S. 308 (1937).

[301] Cr. 358 (1805).

[302] Ibid. 396.

[303] 2 Madison, Notes on the Constitutional Convention, 81 (Hunt's ed.
1908).

[304] Ibid. 181.

[305] Legal Tender Cases, 12 Wall. 457 (1871), overruling Hepburn _v._
Griswold, 8 Wall. 603 (1870).

[306] Perry _v._ United States, 294 U.S. 330, 351 (1935). _See also_
Lynch _v._ United States, 292 U.S. 571 (1934).

[307] Prentice and Egan, The Commerce Clause of the Federal Constitution
(1898) 14. The balance began inclining the other way with the enactment
of the Interstate Commerce Act in 1887.

[308] 9 Wheat. 1, 189-192 (1824). _Cf._ Webster for the appellant:
"Nothing was more complex than commerce; and in such an age as this, no
words embraced a wider field than _commercial_ regulation. Almost all
the business and intercourse of life may be connected, incidently, more
or less, with commercial regulations." (ibid. 9-10); also Justice
Johnson, in his concurring opinion: "Commerce, in its simplest
signification, means an exchange of goods; but in the advancement of
society, labor, transportation, intelligence, care, and various mediums
of exchange, become commodities, and enter into commerce; the subject,
the vehicle, the agent, and their various operations, become the objects
of commercial regulation. Shipbuilding, the carrying trade, and
propagation of seamen, are such vital agents of commercial prosperity,
that the nation which could not legislate over these subjects, would not
possess power to regulate commerce." (ibid. 229-230). "It is all but
impossible in our own age to sense fully its eighteenth-century meaning
(i.e., the meaning of commerce). The Eighteenth Century did not separate
by artificial lines aspects of a culture which are inseparable. It had
no lexicon of legalisms extracted from the law reports in which judicial
usage lies in a world apart from the ordinary affairs of life. Commerce
was then more than we imply now by business or industry. It was a name
for the economic order, the domain of political economy, the realm of a
comprehensive public policy. It is a word which makes trades, activities
and interests an instrument in the culture of a people. If trust was to
be reposed in parchment, it was the only word which could catch up into
a single comprehensive term all activities directly affecting the wealth
of the nation," Walton H. Hamilton and Douglass Adair, The Power to
Govern, 62-63 (New York: 1937).

[309] Ibid. 191.

[310] 9 Wheat. 1, 193 (1824).

[311] _See_ Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421
(1856); Mobile _v._ Kimball, 102 U.S. 691 (1881); Covington Bridge Co.
_v._ Kentucky, 154 U.S. 204 (1894); Kelley _v._ Rhoads, 188 U.S. 1
(1903); United States _v._ Hill, 248 U.S. 420 (1919); Edwards _v._
California, 314 U.S. 160 (1941).

[312] Pensacola Tel. Co. _v._ Western Union Tel. Co., 96 U.S. 1, 9
(1878); International Text Book Co. _v._ Pigg, 217 U.S. 91, 106-107
(1910); Western Union Tel. Co. _v._ Foster, 247 U.S. 105 (1918); Federal
Radio Com. _v._ Nelson Bros., 289 U.S. 266 (1933).

[313] Swift & Co. _v._ United States, 196 U.S. 375, 398-399 (1905);
Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282, 290-291 (1921);
Stafford _v._ Wallace, 258 U.S. 495 (1922); Federal Trade Com. _v._
Pacific States Paper Trade Assoc., 273 U.S. 52, 64-65 (1927).

[314] Kidd _v._ Pearson, 128 U.S. 1 (1888); Oliver Iron Co. _v._ Lord,
262 U.S. 172 (1923).

[315] Paul _v._ Virginia, 8 Wall. 168 (1869). _See also_ New York L.
Ins. Co. _v._ Deer Lodge County, 231 U.S. 495 (1913); New York L. Ins.
Co. _v._ Cravens, 178 U.S. 389, 401 (1900); Fire Assoc. of Philadelphia
_v._ New York, 119 U.S. 110 (1886); Bothwell _v._ Buckbee-Mears Co., 275
U.S. 274 (1927); Metropolitan Casualty Ins. Co. _v._ Brownell, 294 U.S.
580 (1935).

[316] Federal Baseball Club _v._ National League, 259 U.S. 200 (1922).

[317] Blumenstock Bros. _v._ Curtis Pub. Co., 252 U.S. 436 (1920).

[318] Williams _v._ Fears, 179 U.S. 270 (1900).

A contract entered into for the erection of a factory which was to be
supervised and operated by the officers of a foreign corporation was
held not a transaction of interstate commerce in the constitutional
sense merely because of the fact that the products of the factory are
largely to be sold and shipped to other factories. Diamond Glue Co. _v._
United States Glue Co., 187 U.S. 611, 616 (1903). In Browning _v._
Waycross, 233 U.S. 16 (1914), it was held that the installation of
lightning rods sold by a foreign corporation was not interstate
commerce, although provided for in the contract of purchase. Similarly
in General Railway Signal Co. _v._ Virginia, 246 U.S. 500 (1918), where
a foreign corporation installed signals in Virginia, bringing in
materials, supplies, and machinery from without the State, the Court
held that local business was involved, separate and distinct from
interstate commerce, and subject to the licensing power of the State.
However, in an interstate contract for the sale of a complicated
ice-making plant, where it was stipulated that the parts should be
shipped into the purchaser's State and the plant there assembled and
tested under the supervision of an expert to be sent by the seller, it
was held that services of the expert did not constitute the doing of a
local business subjecting the seller to regulations of Texas concerning
foreign corporations. York Mfg. Co. _v._ Colley, 247 U.S. 21 (1918).
_See also_ Kansas City Structural Steel Co. _v._ Arkansas, 269 U.S. 148
(1925).

[319] Associated Press _v._ United States, 326 U.S. 1 (1945).

[320] American Medical Association _v._ United States, 317 U.S. 519
(1943). _Cf._ United States _v._ Oregon State Medical Society, 343 U.S.
326 (1952).

[321] United States _v._ South-Eastern Underwriters Assoc, 322 U.S. 533
(1944). The interstate character of the insurance business as today
organized and carried on is stressed, although its intrastate elements
are not overlooked. The Court's business is to determine in each case
whether "the competing * * * State and national interests * * * can be
accommodated." Ibid. 541 and 548.

[322] Article I, § 8, cl. 18.

[323] _See infra_ CONGRESSIONAL REGULATIONS OF PRODUCTION AND INDUSTRIAL
RELATIONS.

[324] 6 Wheat. 264, 413 (1821).

[325] 9 Wheat. 1, 195 (1824).

[326] New York _v._ Miln, 11 Pet. 102 (1837), overturned in Henderson
_v._ New York, 92 U.S. 259 (1876); License Cases, 5 How. 504, 573-574,
588, 613 (1847); Passenger Cases, 7 How. 283, 399-400, 465-470 (1849);
The Passaic Bridges, 3 Wall. 782 (Appendix), 793 (1866); United States
_v._ Dewitt, 9 Wall. 41, 44 (1870); Patterson _v._ Kentucky, 97 U.S.
501, 503 (1879); Trade-Mark Cases, 100 U.S. 82 (1879); Kidd _v._
Pearson, 128 U.S. 1 (1888); Illinois Central R. Co. _v._ McKendree, 203
U.S. 514 (1906); Keller _v._ United States, 213 U.S. 138, 144-149
(1909); Hammer _v._ Dagenhart, 247 U.S. 251 (1918). _See also infra._

[327] United States _v._ Wrightwood Dairy Co., 315 U.S. 110, 119 (1942).

[328] Gibbons _v._ Ogden, 9 Wheat. 1, 196. Commerce "among the several
States" does not comprise commerce of the District of Columbia nor the
territories of the United States. Congress's power over their commerce
is an incident of its general power over them. Stoutenburgh _v._
Hennick, 129 U.S. 141 (1889); Atlantic Cleaners and Dyers, Inc. _v._
United States, 286 U.S. 427 (1932); In re Bryant, 4 Fed. Cas. No. 2067
(1865). Transportation between two points in the same State, when a
large part of the route is a loop outside the State, is "commerce among
the several States." Hanley _v._ Kansas City Southern R. Co., 187 U.S.
617 (1903); followed in Western Union Telegraph Co. _v._ Speight, 254
U.S. 17 (1920), as to a message sent from one point to another in North
Carolina via a point in Virginia.

[329] 9 Wheat. 1, 196-197.

[330] Champion _v._ Ames (Lottery Case), 188 U.S. 321, 373-374.

[331] Brolan _v._ United States, 236 U.S. 216, 222 (1915).

[332] Thurlow _v._ Massachusetts (License Cases), 5 How. 504, 578
(1847).

[333] Pittsburgh & S. Coal Co. _v._ Bates, 156 U.S. 577, 587 (1895).

[334] United States _v._ Carolene Products Co., 304 U.S. 144, 147-148
(1938). _See also infra._

[335] The "Daniel Ball," 10 Wall. 557, 564 (1871).

[336] Mobile County _v._ Kimball, 102 U.S. 691, 696, 697 (1881).

[337] Second Employers' Liability Cases, 223 U.S. 1, 47, 53-54 (1912).

[338] The above case. And _see infra_.

[339] 9 Wheat. 1, 217, 221 (1824).

[340] Pensacola Teleg. Co. _v._ Western Union Teleg. Co., 96 U.S. 1
(1878). _See also_ Western Union Teleg. Co. _v._ Texas, 105 U.S. 460
(1882).

[341] Ibid. 9. "Commerce embraces appliances necessarily employed in
carrying on transportation by land and water."--Chicago & N.W.R. Co.
_v._ Fuller, 17 Wall. 560, 568 (1873).

[342] "No question is presented as to the power of the Congress, in its
regulation of interstate commerce, to regulate radio communications."
Chief Justice Hughes speaking for the Court in Federal Radio Com _v._
Nelson Bros. B. & M. Co., 289 U.S. 266, 279 (1933). _Said_ Justice
Stone, speaking for the Court in 1936: "Appellant is thus engaged in the
business of transmitting advertising programs from its stations in
Washington to those persons in other States who 'listen in' through the
use of receiving sets. In all essentials its procedure does not differ
from that employed in sending telegraph or telephone messages across
State lines, which is interstate commerce. Western Union Teleg. Co. _v._
Speight, 254 U.S. 17 (1920); New Jersey Bell Teleph. Co. _v._ State Bd.
of Taxes & Assessments, 280 U.S. 338 (1930); Cooney _v._ Mountain States
Teleph. & Teleg. Co., 294 U.S. 384 (1935); Pacific Teleph. & Teleg. Co.
_v._ Tax Commission, 297 U.S. 403 (1936). In each, transmission is
effected by means of energy manifestations produced at the point of
reception in one State which are generated and controlled at the sending
point in another. Whether the transmission is effected by the aid of
wires, or through a perhaps less well understood medium, 'the ether,' is
immaterial, in the light of those practical considerations which have
dictated the conclusion that the transmission of information interstate
is a form of 'intercourse,' which is commerce. _See_ Gibbons _v._ Ogden,
9 Wheat. 1, 189." Fisher's Blend Station _v._ Tax Commission, 297 U.S.
650, 654-655 (1936).

[343] 13 How. 518.

[344] 10 Stat. 112 (1852).

[345] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 430
(1856). "It is Congress, and not the Judicial Department, to which the
Constitution has given the power to regulate commerce with foreign
nations and among the several States. The courts can never take the
initiative on this subject." Parkersburg & O. River Transportation Co.
_v._ Parkersburg, 107 U.S. 691, 701 (1883). _See also_ Prudential
Insurance Co. _v._ Benjamin, 328 U.S. 408 (1946); and Robertson _v._
California, 328 U.S. 440 (1946).

[346] 3 Wall. 713.

[347] Ibid. 724-725.

[348] Union Bridge Co. _v._ United States, 204 U.S. 364 (1907). _See
also_ Monongahela Bridge Co. _v._ United States, 216 U.S. 177 (1910);
and Wisconsin _v._ Illinois, 278 U.S. 367 (1929). Of collateral interest
are the following: South Carolina _v._ Georgia, 93 U.S. 4, 13 (1876);
Bedford _v._ United States, 192 U.S. 217 (1904); Jackson _v._ United
States, 230 U.S. 1 (1913); United States _v._ Arizona, 295 U.S. 174
(1935).

[349] Gibson _v._ United States, 166 U.S. 269 (1897). _See also_ Newport
& Cincinnati Bridge Co. _v._ United States, 105 U.S. 470 (1882); United
States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690 (1899); United
States _v._ Chandler-Dunbar Water Power Co., 229 U.S. 53 (1913); Seattle
_v._ Oregon & W.R. Co., 255 U.S. 56, 63 (1921); Economy Light & Power
Co. _v._ United States, 256 U.S. 113 (1921); United States _v._ River
Rouge Improv. Co., 269 U.S. 411, 419 (1926); Henry Ford & Son _v._
Little Falls Fibre Co., 280 U.S. 369 (1930); United States _v._
Commodore Park, 324 U.S. 386 (1945).

[350] United States _v._ Cress, 243 U.S. 316 (1917).

[351] United States _v._ Chicago, M., St. P. & P.R. Co., 312 U.S. 592,
597 (1941); United States _v._ Willow River Power Co., 324 U.S. 499
(1945).

[352] United States _v._ Rio Grande Dam & Irrig. Co., 174 U.S. 690
(1899); and _cf._ below the discussion of United States _v._ Appalachian
Electric P. Co., 311 U.S. 377 (1940).

[353] The "Daniel Ball" _v._ United States, 10 Wall. 557 (1871).

[354] Ibid. 560.

[355] Ibid. 565.

[356] Ibid. 566. "The regulation of commerce implies as much control, as
far-reaching power, over an artificial as over a natural highway."
Justice Brewer for the Court in Monongahela Navigation Co. _v._ United
States, 148 U.S. 312, 342 (1893).

[357] Congress had the right to confer upon the Interstate Commerce
Commission the power to regulate interstate ferry rates. (New York C. &
H.R.R. Co. _v._ Board of Chosen Freeholders, 227 U.S. 248 (1913)); and
to authorize the Commission to govern the towing of vessels between
points in the same State but partly through waters of an adjoining State
(Cornell Steamboat Co. _v._ United States, 321 U.S. 634 (1944)). _Also_
Congress's power over navigation extends to persons furnishing wharfage,
dock, warehouse, and other terminal facilities to a common carrier by
water. Hence an order of the United States Maritime Commission banning
certain allegedly "unreasonable practices" by terminals in the Port of
San Francisco, and prescribing schedules of maximum free time periods
and of minimum charges was constitutional. (California _v._ United
States, 320 U.S. 577 (1944)). The same power also comprises regulation
of the registry, enrollment, license, and nationality of ships and
vessels; the method of recording bills of sale and mortgages thereon;
the rights and duties of seamen; the limitations of the responsibility
of shipowners for the negligence and misconduct of their captains and
crews; and many other things of a character truly maritime. _See_ Rodd
_v._ Heartt (The "Lottawanna"), 21 Wall. 558, 577 (1875); Providence &
N.Y.S.S. Co. _v._ Hill Mfg. Co., 109 U.S. 578, 589 (1883); Old Dominion
S.S. Co. _v._ Gilmore, 207 U.S. 398 (1907); O'Donnell _v._ Great Lakes
Dredge & Dock Co., 318 U.S. 36 (1943). _See also_ below article III, §
2, (Admiralty and Maritime clause).

[358] Pollard _v._ Hagan, 3 How. 212 (1845); Shively _v._ Bowlby, 152
U.S. 1 (1894). "The shores of navigable waters, and the soils under
them, were not granted by the Constitution to the United States, but
were reserved to the States respectively; and the new States have the
same rights, sovereignty, and jurisdiction over this subject as the
original States." 3 How. 212, headnote 3.

[359] Green Bay & M. Canal Co. _v._ Patten Paper Co., 172 U.S. 58, 80
(1898).

[360] 229 U.S. 53 (1913).

[361] Ibid. 72-73, citing Kaukauna Water Power Co. _v._ Green Bay & M.
Canal Co., 142 U.S. 254 (1891).

[362] 283 U.S. 423.

[363] 311 U.S. 377.

[364] 283 U.S. at 455, 456.

[365] 311 U.S. at 407, 409-410.

[366] 311 U.S. at 426.

[367] Oklahoma ex rel. Phillips _v._ Atkinson Co., 313 U.S. 508, 523-534
_passim_ (1941).

[368] Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288 (1936).
_See infra._

[369] 12 Stat. 489 (1862).

[370] Thomson _v._ Pacific Railroad, 9 Wall. 579, 589 (1870); California
_v._ Central Pacific Railroad, 127 U.S. 1, 39 (1888); Cherokee Nation
_v._ Southern Kansas R. Co., 135 U.S. 641 (1890); Luxton _v._ North
River Bridge Co., 153 U.S. 525, 530 (1894).

[371] 14 Stat. 66 (1866). In his first annual message (December 4,
1865), President Johnson had asked Congress "to prevent any selfish
impediment [by the States] to the free circulation of men and
merchandise." 6 Richardson, Messages and Papers of the Presidents, 362.

[372] 14 Stat. 221; Pensacola Teleg. Co. _v._ Western Union Teleg. Co.,
96 U.S. 1, 3-4, 11 (1878).

[373] R.S. Secs. 4386-4390; replaced today by the Live Stock
Transportation Act of 1906 (34 Stat. 607).

[374] 94 U.S. 113 (1877).

[375] 118 U.S. 557.

[376] 24 Stat. 379 (1887).

[377] 154 U.S. 447.

[378] Interstate Commerce Com. _v._ Alabama Midland R. Co., 168 U.S.
144, 176 (1897). _See also_ Cincinnati, N.O. & T.P.R. Co. _v._
Interstate Commerce Commission, 162 U.S. 184 (1896).

[379] 34 Stat. 584.

[380] 36 Stat. 539 (1910).

[381] By the Federal Communications Act of 1934 (48 Stat. 1081), this
jurisdiction was handed over to the Federal Communications Commission,
created by the act.

[382] 41 Stat. 474 § 400; 488 § 422. The act must today be read in
conjunction with the Transportation Act of 1940 (54 Stat. 898), which
"was intended, together with the old law, to provide a completely
integrated interstate regulatory system over motor, railroad, and water
carriers." United States _v._ Pennsylvania R. Co., 323 U.S. 612, 618-619
(1945).

[383] Houston E. & W.T.R. Co. _v._ United States (Shreveport Case), 234
U.S. 342 (1914). Forty States, through their Attorneys General,
intervened in the case against the Commission's order.

[384] Ibid. 351-352.

[385] Ibid. 353. _See_ to the same effect American Express Co. _v._
Caldwell, 244 U.S. 617, 627 (1917); Pacific Teleph. & Teleg. Co. _v._
Tax Commission (Washington), 297 U.S. 403 (1936); Weiss _v._ United
States, 308 U.S. 321 (1939); Bethlehem Steel Co. _v._ New York Labor
Relations Bd., 330 U.S. 767, 772 (1947); and United States _v._ Walsh,
331 U.S. 432, 438 (1947).

[386] 257 U.S. 563 (1922).

[387] In North Carolina _v._ United States, 325 U.S. 507 (1945), the
Court disallowed as _ultra vires_ an order of the Interstate Commerce
Commission, setting aside State-prescribed intrastate passenger rates,
on the ground that it was unsupported by clear findings and evidence
sufficient to show its necessity.

Among the various provisions of the Interstate Commerce Commission Act
that have been sustained in specific decisions are the following: a
provision penalizing shippers for obtaining transportation at less than
published rates, Armour Packing Co. _v._ United States, 209 U.S. 56
(1908); the so-called "commodities clause" of the Hepburn Act of June
29, 1906, construed as prohibiting the hauling of commodities in which
the carrier had at the _time of haul_ a proprietary interest, United
States _v._ Delaware & H. Co., 213 U.S. 366 (1909); a provision of the
same act abrogating life passes, Louisville & N.R. Co. _v._ Mottley, 219
U.S. 467 (1911); a provision of the same act authorizing the Commission
to regulate the entire system of bookkeeping of interstate carriers,
including intrastate accounts, Interstate Commerce Commission _v._
Goodrich Transit Co., 224 U.S. 194 (1912); the "long and short haul"
clause of the Interstate Commerce Act, United States _v._ Atchison, T. &
S.F.R. Co. (Intermountain Rate Cases), 234 U.S. 476 (1914); an order of
the Commission establishing the so-called uniform zone or block system
of express rates, American Express Co. _v._ South Dakota ex rel.
Caldwell, 244 U.S. 617 (1917); an order of the Commission directing the
abandonment of an intrastate branch of an interstate railroad, Colorado
_v._ United States, 271 U.S. 153 (1926); an order of the Commission
fixing rates of a transportation company operating solely in the
District of Columbia, on the ground that its carriage of passengers
constituted part of an interstate movement, United States _v._ Capital
Transit Co., 338 U.S. 286 (1949).

[388] United States _v._ Ohio Oil Co. (Pipe Line Cases), 234 U.S. 548
(1914).

[389] _See also_ State Corp. Commission _v._ Wichita Gas Co., 290 U.S.
561 (1934); Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921);
United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921); Pennsylvania
_v._ West Virginia, 262 U.S. 553 (1923); Missouri ex rel. Barrett _v._
Kansas Natural Gas Co., 265 U.S. 298 (1924).

[390] Public Utilities Com. _v._ Attleboro Steam and Electric Co., 273
U.S. 83 (1927). _See also_ Utah Power & Light Co. _v._ Pfost, 286 U.S.
165 (1932).

[391] 49 Stat. 838.

[392] The Natural Gas Act of 1938, 52 Stat. 821.

[393] 315 U.S. 575 (1942).

[394] Ibid. 582. Sales to distributors by a wholesaler of natural gas
which is delivered to it from an out-of-State source are subject to the
rate-making powers of the Federal Power Commission. Colorado-Wyoming Co.
_v._ Comm'n., 324 U.S. 626 (1945). _See also_ Illinois Natural Gas Co.
_v._ Central Illinois Pub. Serv. Co., 314 U.S. 498 (1942); _also_
Federal Power Commission _v._ East Ohio Gas Co., 338 U.S. 464, decided
January 9, 1950, where it was held that a natural gas company which,
while operating exclusively in one State, sold there directly to
consumers gas transported into the State through the interstate lines of
other companies, "a natural gas company" within the meaning of the act
of 1938, and so could be required by the Commission to keep uniform
accounts and submit reports.

[395] 48 Stat. 1064.

[396] 49 Stat. 543; since amended in some respects in 1938 (52 Stat.
973) and 1940 (54 Stat. 735).

[397] 52 Stat. 973.

[398] 27 Stat. 531. As early as 1838 laws were passed requiring the
installation of safety devices on steam vessels. 5 Stat. 304 and 626.
Along with the Safety Appliance Acts mention should also be made of acts
requiring the use of ashpans on locomotives (35 Stat. 476 (1908)); the
inspection of boilers (36 Stat. 913 (1911) and 38 Stat. 1192 (1915));
the use of ladders, drawbars, etc., on cars (36 Stat. 298 (1910)); etc.

[399] 32 Stat. 943.

[400] 222 U.S. 20 (1911).

[401] Ibid. 26-27. _See also_ Texas & P.R. Co. _v._ Rigsby, 241 U.S. 33
(1916); and United States _v._ California, 297 U.S. 175 (1936). In the
latter case the intrastate railway involved was property of the State.

[402] 34 Stat. 1415.

[403] Baltimore & O.R. Co. _v._ Interstate Commerce Com., 221 U.S. 612,
618-619 (1911).

[404] 34 Stat. 232, disallowed in part in Howard _v._ Illinois Central
R. Co., 207 U.S. 463 (1908); 35 Stat. 65, sustained in the Second
Employers' Liability Cases (Mondou _v._ New York, N.H. & H.R. Co.), 223
U.S. 1 (1912).

[405] _See_ 223 U.S. at 19-22.

[406] Ibid. 48. Because the injured employee must, in order to benefit
from the act, be employed at the time of his injury "in interstate
commerce," the Court's application of it has given rise to some narrow
distinctions. _See_ Illinois Central R. Co. _v._ Peery, 242 U.S. 292
(1916); New York Central R. Co. _v._ White, 243 U.S. 188 (1917);
Chicago, B. & Q.R. Co. _v._ Harrington, 241 U.S. 177 (1916); Louisville
& N.R. Co. _v._ Parker, 242 U.S. 13 (1916); Illinois Central R. Co. _v._
Behrens, 233 U.S. 473 (1914); St. Louis, S.F. & T.R. Co. _v._ Seale, 229
U.S. 156 (1913); Pedersen _v._ Delaware, L. & W.R. Co., 229 U.S. 146
(1913); Shanks _v._ Delaware, L. & W.R. Co., 239 U.S. 556 (1916); Lehigh
Valley R. Co. _v._ Barlow, 244 U.S. 183 (1917); Southern R. Co. _v._
Puckett, 244 U.S. 571 (1917); Reed _v._ Director General of Railroads,
258 U.S. 92 (1922). That Congress might "legislate as to the
qualifications, duties, and liabilities of employes and others on
railway trains engaged in that [interstate] commerce," was stated by the
Court in Nashville, C. & St. L.R. Co. _v._ Alabama, 128 U.S. 96, 99
(1888).

[407] 208 U.S. 161 (1908).

[408] 30 Stat. 424.

[409] 44. Stat. 577.

[410] Texas & N.O.R. Co. _v._ Brotherhood of R. & S.S. Clerks, 281 U.S.
548 (1930). The provision of Railway Labor Act of 1926 (44 Stat. 577),
preventing interference by either party with organization or designation
of representatives by the other, is within the constitutional authority
of Congress. Similarly, "back shop" employees of an interstate carrier,
who engaged in making heavy repairs on locomotives and cars withdrawn
from service for that purpose for long periods (an average of 105 days
for locomotives and 109 days for cars), were held to be within the terms
of the act as amended in 1934 (48 Stat. 1185). "The activities in which
these employees are engaged have such a relation to the other
confessedly interstate activities of the * * * [carrier] that they are
to be regarded as a part of them. All taken together fall within the
power of Congress over interstate commerce." Virginian R. Co. _v._
System Federation No. 40, 300 U.S. 515, 556 (1937).

By the Adamson Act of 1916 a temporary increase in wages was imposed
upon the railways of the country in order to meet a sudden threat to
strike by important groups of their employees. The act was assailed on
the dual ground that it was not a regulation of commerce among the
States and that it was violative of the carriers' rights under the Fifth
Amendment. A closely divided Court, speaking through Chief Justice
White, answered both objections by pointing to the magnitude of the
emergency which had threatened the country with commercial paralysis and
grave loss and suffering. To the familiar argument that "emergency may
not create power" (Ex parte Milligan, 4 Wall. 2 (1806)), the Chief
Justice answered that "it may afford a reason for exerting a power
already enjoyed." A further answer to objections based on the rights of
carriers under the Fifth Amendment, particularly the right of "freedom
of contract," was that the situation met by the statute had arisen in
consequence of a failure to exercise these rights--a far from
satisfactory answer, as the dissent pointed out, since one element of a
right is freedom of choice regarding its use or nonuse. Wilson _v._ New,
243 U.S. 332, 387 (1917).

[411] 48 Stat. 1283.

[412] 295 U.S. 330 (1935).

[413] Ibid. 374.

[414] Ibid. 384.

[415] 326 U.S. 446 (1946). Indeed, in a case decided in June, 1948,
Justice Rutledge, speaking for a majority of the Court, listed the Alton
case as one "foredoomed to reversal," though the formal reversal has
never taken place. _See_ Mandeville Is. Farms _v._ American C.S. Co.,
334 U.S. 219, 230 (1948).

[416] 250 U.S. 199 (1919).

[417] Ibid. 203-204.

[418] 26 Stat. 209 (1890).

[419] 156 U.S. 1 (1895).

[420] Ibid. 13.

[421] 156 U.S. 1, 13-16 (1895). "Slight reflection will show that if the
national power extends to all contracts and combinations in manufacture,
agriculture, mining, and other productive industries, whose ultimate
result may effect external commerce, comparatively little of business
operations and affairs would be left for State control."

[422] Ibid. 17. The doctrine of the case simmered down to the
proposition that commerce was transportation only; a doctrine which
Justice Harlan undertook to refute in his notable dissenting opinion:
"Interstate commerce does not, therefore, consist in transportation
simply. It includes the purchase and sale of articles that are intended
to be transported from one State to another--every species of commercial
intercourse among the States and with foreign nations." (p. 22). "Any
combination, therefore, that disturbs or unreasonably obstructs freedom
in buying and selling articles manufactured to be sold to persons in
other States or to be carried to other States--a freedom that cannot
exist if the right to buy and sell is fettered by unlawful restraints
that crush out competition--affects, not incidentally, but directly, the
people of all the States; and the remedy for such an evil is found only
in the exercise of powers confided to a government which, this court has
said, was the government of all, exercising powers delegated by all,
representing all, acting for all. McCulloch _v._ Maryland, 4 Wheat. 316,
405." (p. 33). "It is said that manufacture precedes commerce and is not
a part of it. But it is equally true that when manufacture ends, that
which has been manufactured becomes a subject of commerce; that buying
and selling succeed manufacture, come into existence after the process
of manufacture is completed, precede transportation, and are as much
commercial intercourse, where articles are bought _to be_ carried from
one State to another, as is the manual transportation of such articles
after they have been so purchased. The distinction was recognized by
this court in Gibbons _v._ Ogden, where the principal question was
whether commerce included navigation. Both the Court and counsel
recognized buying and selling or barter _as included in commerce_. * * *
The power of Congress covers and protects the absolute freedom of such
intercourse and trade among the States as may or must succeed
manufacture and precede transportation from the place of purchase." (p.
35-36). "When I speak of trade I mean the buying and selling of articles
of every kind that are recognized articles of interstate commerce.
Whatever improperly obstructs the free course of interstate intercourse
and trade, as involved in the buying and selling of articles to be
carried from one State to another, may be reached by Congress, under its
authority to regulate commerce among the States." (p. 37). "If the
national power is competent to repress _State_ action in restraint of
interstate trade as it may be involved in purchases of refined sugar to
be transported from one State to another State, surely it ought to be
deemed sufficient to prevent unlawful restraints attempted to be imposed
by combinations of corporations or individuals upon those identical
purchases; otherwise, illegal combinations of corporations or
individuals may--so far as national power and interstate commerce are
concerned--do, with impunity, what no State can do." (p. 38). "Whatever
a State may do to protect its completely interior traffic or trade
against unlawful restraints, the general government is empowered to do
for the protection of the people of all the States--for this purpose one
people--against unlawful restraints imposed upon interstate traffic or
trade in articles that are to enter into commerce among the several
States." (p. 42).

[423] 175 U.S. 211 (1899).

[424] 196 U.S. 375.--The Sherman Act was applied to break up
combinations of interstate carriers in United States _v._ Trans-Missouri
Freight Asso., 166 U.S. 290 (1897); United States _v._ Joint-Traffic
Asso., 171 U.S. 505 (1898); and Northern Securities Co. _v._ United
States, 193 U.S. 197 (1904). In the first of these cases the Court was
confronted with the contention that the act had been intended only for
the industrial combinations, and hence was not designed to apply to the
railroads, for whose governance the Interstate Commerce Act had been
enacted three years prior. Justice Peckham answered the argument by
saying that "to exclude agreements as to rates by competing railroads *
* * would leave [very] little for the act to take effect upon,"
referring in this connection to the decision in the Sugar Trust Case,
166 U.S. at 313.

Alluding in his opinion for the Court in Mandeville Island Farms _v._
American C.S. Co., 334 U.S. 219 (1948) to the Sugar Trust Case, Justice
Rutledge said: "Like this one, that case involved the refining and
interstate distribution of sugar. But because the refining was done
wholly within a single state, the case was held to be one involving
'primarily' only 'production' or 'manufacturing,' although the vast part
of the sugar produced was sold and shipped interstate, and this was the
main end of the enterprise. The interstate distributing phase, however,
was regarded as being only 'incidentally,' 'indirectly,' or 'remotely'
involved; and to be 'incidental,' 'indirect,' or 'remote' was to be,
under the prevailing climate, beyond Congress' power to regulate, and
hence outside the scope of the Sherman Act. _See_ Wickard _v._ Filburn,
317 U.S. at 119 et seq. (1942).

"The _Knight_ decision made the statute a dead letter for more than a
decade and, had its full force remained unmodified, the Act today would
be a weak instrument, as would also the power of Congress, to reach
evils in all the vast operations of our gigantic national industrial
system antecedent to interstate sale and transportation of manufactured
products. Indeed, it and succeeding decisions, embracing the same
artificially drawn lines, produced a series of consequences for the
exercise of national power over industry conducted on a national scale
which the evolving nature of our industrialism foredoomed to reversal."
Ibid. 229-230.

[425] Swift & Co. _v._ United States, 196 U.S. 375, 396 (1905).

[426] 196 U.S. at 398-399.

[427] Ibid. 399-401.

[428] Ibid. 400.

[429] Loewe _v._ Lawlor, 208 U.S. 274 (1908); Duplex Printing Press Co.
_v._ Deering, 254 U.S. 443 (1921); Coronado Coal Co. _v._ United Mine
Workers of America, 268 U.S. 295 (1925); United States _v._ Brime, 272
U.S. 549 (1926); Bedford Co. _v._ Stone Cutters Assn., 274 U.S. 37
(1927); Local 167 _v._ United States, 291 U.S. 293 (1934); Allen Bradley
Co. _v._ Union, 325 U.S. 797 (1945).

[430] 42 Stat. 159.

[431] Ibid. 998 (1922).

[432] 258 U.S. 495 (1922).

[433] Ibid. 514.

[434] Ibid. 515-516. _See also_ Lemke _v._ Farmers' Grain Co., 258 U.S.
50 (1922); Minnesota _v._ Blasius, 290 U.S. 1 (1933).

[435] 262 U.S. 1 (1923).

[436] Ibid. 35.

[437] Ibid. 40.

[438] 258 U.S. at 521; 262 U.S. at 37.

[439] 48 Stat. 881.

[440] 49 Stat. 803.

[441] Electric Bond Co. _v._ Comm'n., 303 U.S. 419 (1938); North
American Co. _v._ S.E.C., 327 U.S. 686 (1946); American Power & Light
Co. _v._ S.E.C., 329 U.S. 90 (1946).

[442] "The Bond and Share system, including American and Electric,
possesses an undeniable interstate character which makes it properly
subject, from the statutory standpoint, to the provisions of § 11 (b)
(2). This vast system embraces utility properties in no fewer than 32
States, from New Jersey to Oregon and from Minnesota to Florida, as well
as in 12 foreign countries. Bond and Share dominates and controls this
system from its headquarters in New York City. * * * the proper control
and functioning of such an extensive multi-state network of corporations
necessitates continuous and substantial use of the mails and the
instrumentalities of interstate commerce. Only in that way can Bond and
Share, or its subholding companies or service subsidiary, market and
distribute securities, control and influence the various operating
companies, negotiate inter-system loans, acquire or exchange property,
perform service contracts, or reap the benefits of stock ownership. * *
* Moreover, many of the operating companies on the lower echelon sell
and transmit electric energy or gas in interstate commerce to an extent
that cannot be described as spasmodic or insignificant. * * * Congress,
of course, has undoubted power under the commerce clause to impose
relevant conditions and requirements on those who use the channels of
interstate commerce so that those channels will not be conduits for
promoting or perpetuating economic evils. * * * Thus to the extent that
corporate business is transacted through such channels, affecting
commerce in more States than one, Congress may act directly with respect
to that business to protect what it conceives to be the national
welfare. * * * It may compel changes in the voting rights and other
privileges of stockholders. It may order the divestment or rearrangement
of properties. It may order the reorganization or dissolution of
corporations. In short, Congress is completely uninhibited by the
commerce clause in selecting the means considered necessary for bringing
about the desired conditions in the channels of interstate commerce. Any
limitations are to be found in other sections of the Constitution.
Gibbons _v._ Ogden, 9 Wheat. 1, 196." American Power & Light Co. _v._
S.E.C., 329 U.S. 90, 98-100 (1946).

[443] Appalachian Coals, Inc. _v._ United States, 288 U.S. 344, 372
(1933).

[444] 48 Stat. 195.

[445] 295 U.S. 495 (1935).

[446] Ibid. 548. _See also_ Ibid. 546.

[447] In United States _v._ Sullivan, 332 U.S. 689 (1948), the Court
interpreted the Federal Food, Drug, and Cosmetics Act of 1938 as
applying to the sale by a retailer of drugs purchased from his
wholesaler within the State nine months after their interstate shipment
had been completed. The Court, speaking by Justice Black, cited United
States _v._ Walsh, 331 U.S. 432 (1947); Wickard _v._ Filburn, 317 U.S.
111 (1942); United States _v._ Wrightwood Dairy Co., 315 U.S. 110
(1942); United States _v._ Darby, 312 U.S. 100 (1941). The last three of
these cases are discussed below. _See_ pp. 155, 159. Justice Frankfurter
dissented on the basis of Federal Trade Commission _v._ Bunte Bros., 312
U.S. 349 (1941). It is apparent that the Schechter case has been
thoroughly repudiated so far as the distinction "direct" and "indirect"
effects is concerned. _See also_ McDermott _v._ Wisconsin, 228 U.S. 115
(1913), which preceded the Schechter decision by more than two decades.

The N.I.R.A., however, was found to have several other constitutional
infirmities besides its disregard, as illustrated by the Live Poultry
Code, of the "fundamental" distinction between "direct" and "indirect"
effects, namely, the delegation of uncanalized legislative power; the
absence of any administrative procedural safeguards; the absence of
judicial review; and the dominant role played by private groups in the
general scheme of regulation. These objections are dealt with elsewhere
in this volume. _Supra_, pp. 75, 78, 80.

[448] 48 Stat 31 (1933).

[449] United States _v._ Butler, 297 U.S. 1, 63-64, 68 (1936).

[450] 49 Stat. 991.

[451] Carter _v._ Carter Coal Co., 298 U.S. 238 (1936).

[452] Ibid. 308-309.

[453] United States _v._ E.C. Knight Co., 156 U.S. 1 (1895).

[454] 301 U.S. 1 (1937).

[455] 49 Stat. 449.

[456] 301 U.S. at 38, 41-42 (1937).

[457] National Labor Relations Board _v._ Fruehauf Trailer Co., 301 U.S.
49 (1937); National Labor Relations Board _v._ Friedman-Harry Marks
Clothing Co., 301 U.S. 58 (1937).

[458] National Labor Relations Board _v._ Fainblatt, 306 U.S. 601, 606
(1939).

[459] _See_ Santa Cruz Fruit Packing Co. _v._ National Labor Relations
Board, 303 U.S. 453, 465 (1938).

[460] 52 Stat. 1060.

[461] United States _v._ Darby, 312 U.S. 100, 115 (1941).

[462] _See_ ibid. 113, 114, 118.

[463] Ibid. 123-124.

[464] Owen J. Roberts, The Court and the Constitution, The Oliver
Wendell Holmes Lectures 1951, (Harvard University Press 1951), 56.

[465] The Act provided originally that "for the purposes of this Act an
employee shall be deemed to have been engaged in the production of goods
if such employee was employed * * * in any process or occupation
necessary to the production thereof, in any State." By 63 Stat. 910
(1949), "necessary to the production thereof" becomes "directly
essential to the production thereof." The effect of this change, which
has not yet registered itself in judicial decision, seems likely to be
slight, in view of the power, which the act gives the Administrator to
lay down "such terms and conditions" as he "finds necessary to carry out
the purposes of" his orders to prevent their evasion or circumvention.
_See_ Gemsco, Inc. _v._ Walling, 324 U.S. 244 (1945). The employees
involved in the following cases have been held to be covered by the act:

(1) Operating and maintenance employees of the owner of a loft building,
space in which is rented to persons producing goods principally for
interstate commerce (Kirschbaum _v._ Walling, 316 U.S. 517 (1942));

(2) an employee of an interstate motor transportation company, who acted
as rate clerk and performed other incidental duties (Overnight Motor Co.
_v._ Missel, 316 U.S. 572 (1942));

(3) members of a rotary drilling crew, engaged within a State, as
employees of an independent contractor, in partially drilling oil wells,
a portion of the products from which later moved in interstate commerce
(Warren-Bradshaw Co. _v._ Hall, 317 U.S. 88 (1942));

(4) employees of a wholesale paper company who are engaged in the
delivery, from company warehouse within a State to customers within that
State, after a temporary pause at such warehouses, of goods procured
outside of the State upon prior orders from, or pursuant to contracts
with, such customers (Walling _v._ Jacksonville Paper Co., 317 U.S. 564
(1943));

(5) employees of a private corporation who are engaged in the operation
and maintenance of a drawbridge which is part of a toll road used
extensively by persons and vehicles traveling in interstate commerce,
and which spans an intercoastal waterway used in interstate commerce
(Overstreet _v._ North Shore Corp., 318 U.S. 125 (1943));

(6) a night watchman employed in a plant in which veneer was
manufactured from logs and from which a substantial portion of the
manufactured product was shipped in interstate commerce (Walton _v._
Southern Package Corp., 320 U.S. 540 (1944));

(7) employees putting in stand-by time in the auxiliary fire-fighting
service of an employer engaged in interstate commerce (Armour & Co. _v._
Wantock, 323 U.S. 126 (1944));

(8) warehouse and central office employees of an interstate retail chain
store system (Phillips Co. _v._ Walling, 324 U.S. 490 (1945));

(9) employees of an independent contractor engaged in repairing
abutments and substructures of bridges which were part of the line of an
interstate railroad (Fitzgerald Co. _v._ Pedersen, 324 U.S. 720 (1945));

(10) maintenance employees of an office building which was owned and
operated by a manufacturing corporation and in which 58 per cent of the
rental space was used for its central offices, where its production of
goods for interstate commerce was administered, managed and controlled,
although the goods were actually produced at plants located elsewhere
(Borden Company _v._ Borella, 325 U.S. 679 (1945));

(11) the employees of an electrical contractor, locally engaged in
commercial and industrial wiring and dealing in electrical motors and
generators for commercial and industrial uses, whose customers are
engaged in the production of goods for interstate commerce (Roland Co.
_v._ Walling, 326 U.S. 657-678 (1946));

(12) employees of a window-cleaning company, the greater part of whose
work is done on the windows of industrial plants of producers of goods
for interstate commerce (Martino _v._ Michigan Window Cleaning Company,
327 U.S. 173-178 (1946));

(13) mechanics engaged in servicing and maintaining equipment of a motor
transportation company which is engaged in interstate commerce (Boutell
_v._ Walling, 327 U.S. 463 (1946)). Nor does the maxim "_de minimis_"
apply to the act. Hence the publishers of a daily newspaper only about
one half of one per cent of whose circulation is outside the State of
publication are not by that fact excluded from the operation of the act.
(Mabee _v._ White Plains Publishing Co., 327 U.S. 178 (1946)). On the
other hand, an employee whose work it is to prepare meals and serve them
to maintenance-of-way employees of an interstate railroad in pursuance
of a contract between his employer and the railroad company is not
"engaged in commerce" within the meaning of §§ 6 and 7 of the Fair Labor
Standards Act (McLeod _v._ Threlkeld, 319 U.S. 491 (1943)); nor are
maintenance employees of a typical metropolitan office building operated
as an independent enterprise, which is used and is to be used for
offices by every variety of tenants, including some producers of goods
for commerce (10 East 40th St. _v._ Callus, 325 U.S. 578 (1945)); nor
are maintenance employees of a building corporation which furnishes loft
space to tenants engaged in production for interstate commerce "unless
an adequate proportion of such tenants are so engaged." (Schulte _v._
Gangi, 328 U.S. 108 (1946)). _Also_ Section 12 (a) of the Fair Labor
Standards Act, which provides that "no producer, * * * shall ship or
deliver for shipment in commerce any goods produced in an establishment
* * * in or about which * * * any oppressive child labor has been
employed * * *" was held inapplicable to a company engaged in the
transmission in interstate commerce of telegraph messages, (Western
Union _v._ Lenroot, 323 U.S. 490 (1945)). The decision was a
five-to-four one. It should be added that the Court has not always been
unanimous in favoring coverage by the act. In the Borden case above,
Chief Justice Stone, speaking for himself and Justice Roberts,
protested, as follows: "No doubt there are philosophers who would argue,
what is implicit in the decision now rendered, that in a complex modern
society there is such interdependence of its members that the activities
of most of them are necessary to the activities of most others. But I
think that Congress did not make that philosophy the basis of the
coverage of the Fair Labor Standards Act. It did not, by a
'house-that-Jack-built' chain of causation, bring within the sweep of
the statute the ultimate _causa causarum_ which result in the production
of goods for commerce. Instead it defined production as a physical
process. It said in § 3 (j) 'Produced means produced, manufactured,
mined, handled, or in any other manner worked on' and declared that
those who participate in any of these processes 'or in any process or
occupation necessary to' them are engaged in production and subject to
the Act." 325 U.S. 679, 685. On the other hand, the holding in 10 East
40th St., above, was a five-to-four decision, and Justice Frankfurter,
speaking for the Court took pains to explain that Congress in enacting
the Fair Labor Standards Act, "did not see fit, * * *, to exhaust its
constitutional power over commerce." 325 U.S. 578-579. _See_ 87 Law Ed.
pp. 87-105 for a note reviewing both Supreme Court, lower Federal Court,
and State court cases defining "engaged in commerce" as that term is
used in the Fair Labor Standards Act.

[466] 50 Stat. 246.

[467] 315 U.S. 110 (1942).

[468] Ibid. 118-119.

[469] 317 U.S. 111 (1942).

[470] 52 Stat. 31.

[471] 317 U.S. at 128-129.

[472] Ibid. 120-124 _passim_. In United States _v._ Rock Royal
Co-operative, 307 U.S. 533 (1939), the Court sustained an order under
the Agricultural Marketing Agreement Act of 1937 (50 Stat. 752)
regulating the price of milk in certain instances. Said Justice Reed for
the majority of the Court: "The challenge is to the regulation 'of the
price to be paid upon the sale by a dairy farmer who delivers his milk
to some country plant.' It is urged that the sale, a local transaction,
is fully completed before any interstate commerce begins and that the
attempt to fix the price or other elements of that incident violates the
Tenth Amendment. But where commodities are bought for use beyond State
lines, the sale is a part of interstate commerce. We have likewise held
that where sales for interstate transportation were commingled with
intrastate transactions, the existence of the local activity did not
interfere with the federal power to regulate inspection of the whole.
Activities conducted within the State lines do not by this fact alone
escape the sweep of the Commerce Clause. Interstate commerce may be
dependent upon them. Power to establish quotas for interstate marketing
gives power to name quotas for that which is to be left within the State
of production. Where local and foreign milk alike are drawn into a
general plan for protecting the interstate commerce in the commodity
from the interferences, burdens and obstructions, arising from excessive
surplus and the social and sanitary evils of low values, the power of
the Congress extends also to the local sales."' Ibid. 568-569. _See
also_ H.P. Hood & Sons _v._ United States, 307 U.S. 588 (1939), another
milk case; and Mulford _v._ Smith, 307 U.S. 38 (1939), in which certain
restrictions on the sale of tobacco, under the Agricultural Adjustment
Act of 1938 (52 Stat. 31), were sustained in an opinion by Justice
Roberts, who spoke for the Court in the latter case.

[473] United States _v._ The William, 28 Fed. Cas. No. 16,700, 614,
620-623 _passim_ (1808). Other parts of this opinion are considered
below in connection with the prohibiting of interstate commerce. _See
also_ Gibbons _v._ Ogden, 9 Wheat. 1, 191 (1824); United States _v._
Marigold, 9 How. 560 (1850).

[474] 289 U.S. 48 (1933).

[475] Ibid. 57, 58.

[476] 5 Stat. 566 § 28.

[477] 9 Stat. 237 (1848).

[478] 24 Stat. 409.

[479] 35 Stat. 614; 38 Stat. 275.

[480] 29 Stat. 605.

[481] 192 U.S. 470 (1904).

[482] 223 U.S. 166 (1912); _cf._ United States _v._ California, 332 U.S.
19 (1947).

[483] 239 U.S. 325 (1915).

[484] Ibid. 329.

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

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

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

The Issue

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

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

The Argument Denying Congress' Power To Prohibit Interstate Commerce

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

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

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

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

The Argument Asserting the Power

The thesis that the power to regulate commerce among the States
comprises in general the power to prohibit it turns on the proposition
stated by Marshall in his opinion in Gibbons _v._ Ogden, that this power
is vested "in Congress as absolutely as it would be in a single
government, having in its Constitution the same restrictions on the
exercise of the power as are found in the Constitution of the United
States. The wisdom and discretion of Congress," Marshall continued,
"their identity with the people, 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." 9 Wheat. 1,
196-197 (1824).

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

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

In this connection the advocates of this view cited discussion
contemporaneous with Jefferson's Embargo, and under the embargo itself,
as supporting their position. In the case of the Brigantine William the
validity of the embargo was challenged before the United States District
Court of Massachusetts on the ground that the power to regulate commerce
did not embrace the power to prohibit it. Judge Davis answered: "It will
be admitted that partial prohibitions are authorized by this expression;
and how shall the degree, or extent, of the prohibition be adjusted, but
by the discretion of the National Government, to whom the subject
appears to have been committed? * * * The power to regulate commerce is
not to be confined to the adoption of measures, exclusively beneficial
to commerce itself, or tending to its advancement; but, in our national
system, as in all modern sovereignties, it is also to be considered as
an instrument for other purposes of general policy and interest. * * *
the national right, or power, under the Constitution, to adapt
regulations of commerce to other purposes, than the mere advancement of
commerce, appears to be unquestionable. * * * The situation of the
United States, in ordinary times, might render legislative
interferences, relative to commerce, less necessary; but the capacity
and power of managing and directing it, for the advancement of great
national purposes, seems an important ingredient of sovereignty." And in
confirmation of this argument Judge Davis cited the clause of § 9 of
article I of the Constitution interdicting a prohibition of the slave
trade till 1808. This clause clearly proves that those who framed the
Constitution perceived that "under the power of regulating commerce,
Congress would be authorized to abridge it, in favour of the great
principles of humanity and justice." Fed. Cas. No. 16,700, 614, 621
(1808).

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

References

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

[488] 23 Stat. 31.

[489] 32 Stat. 791.

[490] 33 Stat. 1264.

[491] 33 Stat. 1269.

[492] 37 Stat. 315.

[493] 39 Stat. 1165.

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

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

[496] 28 Stat 963.

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

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

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

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

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

[502] 31 Stat. 188 (1900).

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

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

[505] 41 Stat. 324 (1919).

[506] 47 Stat. 326 (1932).

[507] 48 Stat. 794 (1934).

[508] 48 Stat. 979 (1934).

[509] 54 Stat. 686 (1940).

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

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

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

[513] 39 Stat. 675 (1916).

[514] 247 U.S. at 275.

[515] Ibid. 271-272.

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

[517] 41 Stat. 324 (1919).

[518] 267 U.S. at 436-439. _See also_ Kentucky Whip & Collar Co. _v._
Illinois C.R. Co., 299 U.S. 334 (1937).

[519] United States _v._ Darby, 312 U.S. 100, 116-117 (1941).

[520] Roland Co. _v._ Walling, 326 U.S. 657, 669 (1946).

[521] Polish Alliance _v._ Labor Board, 322 U.S. 643, 650 (1944). _Cf._
the opinion of Chief Justice Vinson for the Court in Bus Employees _v._
Wisconsin Board, 340 U.S. 383 (1951).

[522] Federalist No. 32.

[523] 9 Wheat. 1, 11, 226 (1824).

[524] Madison, IV, Letters and Other Writings, 14-15 (Philadelphia,
1865).

[525] 9 Wheat. 1, 203.

[526] 9 Wheat. at 210-211.

[527] 9 Wheat. at 13-14; _also_ ibid. 16.

[528] 9 Wheat. 17-18, 209.

[529] 12 Wheat. 419 (1827).

[530] 12 How. 299 (1851).

[531] Congressional regulation of commerce, however, does not have to be
uniform. The uniformity rule is a test of the invalidity of State
legislation affecting commerce, not the validity of Congressional
legislation regulating commerce. Clark Distilling Co. _v._ W.M.R. Co.,
242 U.S. 311, 327 (1917); Currin _v._ Wallace, 306 U.S. 1, 14 (1939);
Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408 (1946).

[532] Simpson _v._ Shepard, 230 U.S. 352 (1913).

[533] Ibid. 400-402.

[534] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176, 188-189
(1940). F.D.G. Ribble's _State and National Power Over Commerce_
(Columbia University Press, 1937) is an excellent study both of the
Court's formulas and of the arbitral character of its task in this field
of Constitutional Law. On the latter point, see especially Chapters X
and XII. The late Chief Justice Stone took repeated occasion to stress
the "balancing" and "adjusting" role of the Court when applying the
commerce clause in relation to State power. _See_ his words in South
Carolina State Highway Dept. _v._ Barnwell Bros., 303 U.S. 177, 184-192
(1938); California _v._ Thompson, 313 U.S. 109, 113-116 (1941); Parker
_v._ Brown, 317 U.S. 341, 362-363 (1943); and Southern Pacific _v._
Arizona, 325. U.S. 761, 766-770 (1945). _See also_ Justice Black for the
Court in United States _v._ South-Eastern Underwriters Assoc., 322 U.S.
533, 548-549 (1944).

[535] 12 Wheat. 419 (1827).

[536] Compare, for example, May _v._ New Orleans, 178 U.S. 496 (1900);
and the recent case of Hooven & Allison Co. _v._ Evatt, 324 U.S. 652
(1945). In the latter case the benefits of the original package doctrine
were extended to imports from the Philippine Islands title to which did
not vest in the importer until their arrival in the United States.

[537] Freeman _v._ Hewit, 329 U.S. 249, 251 (1946).

[538] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax
Case), 15 Wall. 232 (1873).

[539] Headnotes. Said the Court: "The rule has been asserted with great
clearness, that whenever the subjects over which a power to regulate
commerce is asserted are in their nature national, or admit of one
uniform system or plan of regulation, they may justly be said to be of
such a nature as to require exclusive legislation by Congress. Surely
transportation of passengers or merchandise through a State, or from one
State to another, is of this nature. It is of national importance that
over that subject there should be but one regulating power, for if one
State can directly tax persons or property passing through it, or tax
them indirectly by levying a tax upon their transportation, every other
may, and thus commercial intercourse between States remote from each
other may be destroyed." 15 Wall. at 279-280, citing Cooley _v._ Port
Wardens, 12 How. 299 (1851); Gilman. _v._ Philadelphia, 3 Wall. 713
(1866); Crandall _v._ Nevada, 6 Wall. 35, 42 (1868).

[540] 116 U.S. 517 (1886).

[541] Ibid. 527.

[542] Heisler _v._ Thomas Colliery Co., 260 U.S. 245 (1922).

[543] 262 U.S. 172 (1923).

[544] Ibid. 178. _See also_ Diamond Match Co. _v._ Ontonagon 188 U.S. 82
(1903).

[545] Hope Natural Gas Co. _v._ Hall, 274 U.S. 284 (1927). _See also_
American Manufacturing Co. _v._ St. Louis, 250 U.S. 459 (1919) in which
there was imposed a license tax on manufacture of goods computed upon
the amount of sales of the goods.

[546] 286 U.S. 165 (1932).

[547] Coverdale _v._ Arkansas-Louisiana Pipe Line Co., 303 U.S. 604
(1938).

[548] Toomer _v._ Witsell, 334 U.S. 385 (1948).

[549] Dahnke-Walker Milling Co. _v._ Bondurant, 257 U.S. 282 (1921).
Here a Tennessee corporation, in pursuance of its practice of purchasing
grain in Kentucky to be transported to and used in its Tennessee mill,
made a contract for the purchase of wheat, to be delivered in Kentucky
on the cars of a public carrier, intending to forward it as soon as
delivery was made. It was held that the transaction was in interstate
commerce, notwithstanding the contract was made and to be performed in
Kentucky; and that the possibility that the purchaser might change its
mind after delivery and sell the grains in Kentucky or consign it to
some other place in that State did not affect the essential character of
the transaction. Interstate commerce, said the Court, "is not confined
to transportation from one State to another, but comprehends all
commercial intercourse between different States and all the component
parts of that intercourse." Ibid. 290. Followed in Lemke _v._ Farmers
Grain Co., 258 U.S. 50 (1922); and Flanagan _v._ Federal Coal Co., 267
U.S. 222 (1925).

[550] Eureka Pipe Line Co. _v._ Hallanan, 257 U.S. 265 (1921).

[551] United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921).

[552] Ibid. 281. _See also_ State Tax Commission _v._ Interstate Natural
Gas Co., 284 U.S. 41 (1931) holding invalid a State privilege tax
imposed on a foreign corporation selling to distributors in the State
natural gas piped in from another State, whose only activity was the use
of a thermometer and meter and reduction of pressure to permit vendee to
draw off the gas. "The work done by the plaintiff is done upon the
flowing gas to help the delivery and seems to us plainly to be an
incident to the interstate commerce between Louisiana and Mississippi."
Ibid. 44.

[553] 12 Wheat. 419 (1827).

[554] Ibid. 449.

[555] 8 Wall. 123 (1860).

[556] Ibid. 140.

[557] 114 U.S. 622 (1885). _See also_ Pittsburgh & S. Coal Co. _v._
Bates, 156 U.S. 577 (1895).

[558] 114 U.S. at 632-633.

[559] Ibid. 634.

[560] _See_ Wagner _v._ Covington, 251 U.S. 95 (1919).

[561] Brimmer _v._ Rebman, 138 U.S. 78 (1891); Patapsco Guano Co. _v._
Board of Agriculture, 171 U.S. 345 (1898); Red "C" Oil Mfg. Co. _v._
Board of Agriculture, 222 U.S. 380 (1912); Savage _v._ Jones, 225 U.S.
501 (1912); Foote & Co. _v._ Stanley, 232 U.S. 494 (1914).

[562] Standard Oil Co. _v._ Graves, 249 U.S. 389 (1919); Askren _v._
Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._ Continental Oil
Co., 256 U.S. 642 (1921); Texas Co. _v._ Brown, 258 U.S. 466 (1922).

[563] Sonneborn Bros. _v._ Cureton, 262 U.S. 506 (1923). Reviewing
cases. _Cf._ Phipps _v._ Cleveland Refining Co., 261 U.S. 449 (1923).

[564] _See_ pp. 178, 238-239.

[565] Eastern Air Transport, Inc. _v._ South Carolina Tax Comm'n., 285
U.S. 147, 153 (1932).

[566] Rast _v._ Van Deman and Lewis, 240 U.S. 342 (1916). _See also_
Tanner _v._ Little, 240 U.S. 369 (1916), and Pitney _v._ Washington, 240
U.S. 387 (1916) upholding a Washington statute imposing a prohibitive
license tax upon merchants using trading stamps or coupons redeemable in
merchandise.

[567] Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Emert _v._
Missouri, 156 U.S. 296 (1895); Singer Sewing Machine Co. _v._ Brickell,
233 U.S. 304 (1914); Wagner _v._ City of Covington, 251 U.S. 95 (1919);
Caskey Baking Co. _v._ Virginia, 313 U.S. 117 (1941).

[568] 197 U.S. 60 (1905). _See also_ Armour Packing Co. _v._ Lacy, 200
U.S. 226 (1906).

[569] 91 U.S. 275 (1876); _see also_ Ward _v._ Maryland, 12 Wall. 418
(1871).

[570] _See_ Cook _v._ Pennsylvania, 97 U.S. 566 (1878); Guy _v._
Baltimore, 100 U.S. 434 (1880); Tiernan _v._ Rinker, 102 U.S. 123
(1880); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); Webber _v._
Virginia, 103 U.S. 344 (1881); Walling _v._ Michigan, 116 U.S. 446
(1886); Darnell & Son Co. _v._ Memphis, 208 U.S. 113 (1908), where was
held void a property tax on lumber which discriminated in favor of the
local product: Bethlehem Motor Corp. _v._ Flynt, 256 U.S. 421 (1921),
where a license tax on distributors was held to be invalidated by the
provision made for a rebate under conditions that could be met only by
manufacturers within the taxing State.

[571] Coe _v._ Errol, 116 U.S. 517 (1886).

[572] Ibid. 525.

[573] General Oil Co. _v._ Crain, 209 U.S. 211 (1908).

[574] American Steel & Wire Co. _v._ Speed, 192 U.S. 500 (1904); Bacon
_v._ Illinois, 227 U.S. 504 (1913); Susquehanna Coal Co. _v._ South
Amboy, 228 U.S. 665 (1913); Minnesota _v._ Blasius, 290 U.S. 1 (1933);
Independent Warehouses _v._ Scheele, 331 U.S. 70 (1947).

[575] Nashville, C. & St. L.R. Co. _v._ Wallace, 288 U.S. 249 (1933).

[576] Edelman _v._ Boeing Air Transport, Inc., 289 U.S. 249 (1933). The
Court also upheld a tax on the sale of gasoline for use by an air
transport line in conducting interstate transportation across the State
in Eastern Air Transport, Inc. _v._ South Carolina Tax Comm., 285 U.S.
147 (1932).

[577] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939).

[578] Pacific Telephone & Telegraph Co. _v._ Gallagher, 306 U.S. 182
(1939).

[579] Southern Pacific Co. _v._ Gallagher, 306 U.S. 167 (1939), as
formulated in the headnotes; _see also_ Monamotor Oil Co. _v._ Johnson,
292 U.S. 86 (1934).

[580] Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936);
McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). In Helson
_v._ Kentucky, 279 U.S. 245 (1929), the Court held that gasoline
purchased in Illinois and used in an Illinois-Kentucky ferry could not
be taxed by Kentucky, being, as it were, a part of the ferry, an
instrument of commerce between the two States. _See also_ Kelley _v._
Rhoads, 188 U.S. 1 (1903); Champlain Realty Co. _v._ Brattleboro, 260
U.S. 366 (1922); Hughes Bros. Timber Co. _v._ Minnesota, 272 U.S. 469
(1926); Carson Petroleum Co. _v._ Vial, 279 U.S. 95 (1929).

[581] 120 U.S. 489 (1887).

[582] Corson _v._ Maryland, 120 U.S. 502 (1887); Asher _v._ Texas, 128
U.S. 129 (1888); Stoutenburgh _v._ Hennick, 129 U.S. 141 (1889); Brennan
_v._ Titusville, 153 U.S. 289 (1894); Stockard _v._ Morgan, 185 U.S. 27
(1902); Crenshaw _v._ Arkansas, 227 U.S. 389 (1913); Rogers _v._
Arkansas, 227 U.S. 401 (1913); Stewart _v._ Michigan, 232 U.S. 665
(1914); Western Oil Refining Co. _v._ Lipscomb, 244 U.S. 346 (1917);
Cheney Bros. _v._ Massachusetts, 246 U.S. 147 (1918).

[583] Caldwell _v._ North Carolina, 187 U.S. 622 (1903).

[584] Norfolk & W.R. Co. _v._ Sims, 191 U.S. 441 (1903).

[585] Rearick _v._ Pennsylvania, 203 U.S. 507 (1906); Dozier _v._
Alabama, 218 U.S. 124 (1910); Davis _v._ Virginia, 236 U.S. 697 (1915).

[586] 203 U.S. at 512.

[587] Real Silk Hosiery Mills _v._ Portland, 268 U.S. 325 (1925).

[588] Heyman _v._ Hays, 236 U.S. 178 (1915). _See also_ Hump Hairpin Co.
_v._ Emmerson, 258 U.S. 290 (1922), holding that business done by a
corporation through orders which were approved in a State where its
tangible property and offices were located, but which were first taken
by its salesmen in other States, was interstate, although the tax
involved was sustained.

[589] Ficklen _v._ Shelby County Taxing District, 145 U.S. 1, 21 (1892).

[590] New York ex rel. Hatch _v._ Reardon, 204 U.S. 152 (1907); _Cf._
Nathan _v._ Louisiana, 8 How. 73 (1850).

[591] Ware _v._ Mobile County, 209 U.S. 405 (1908). _See also_ Brodnax
_v._ Missouri, 219 U.S. 285 (1911).

[592] 222 U.S. 210 (1911).

[593] 233 U.S. 16 (1914).

[594] Ibid. 23. _See also_ Superior Oil _v._ Mississippi ex rel. Knox,
280 U.S. 390 (1930).

[595] Chassaniol _v._ Greenwood, 291 U.S. 584 (1934).

[596] Wiloil Corp. _v._ Pennsylvania, 294 U.S. 169, 173 (1935); _see
also_ Minnesota _v._ Blasius, 290 U.S. 1 (1933).

[597] 309 U.S. 33 (1940).

[598] Best & Co. _v._ Maxwell. 311 U.S. 454, 455 (1940).

[599] 300 U.S. 577 (1937). _Cf._ Hinson _v._ Lott, 8 Wall. 148 (1869).
Here was involved a tax of fifty cents per gallon on all spiritous
liquors brought into the State. Comparing the tax with a similar one
imposed upon liquors manufactured in the State, the Court upheld the
statute. "The taxes were complementary and were intended to effect
equality."

[600] 300 U.S. at 583-584. Some subsequent use tax cases in the
Henneford pattern are the following: Bacon & Sons _v._ Martin was
decided in a unanimous _per curiam_ opinion. It involved a Kentucky
statute which imposed a tax "on the 'receipt' of cosmetics in the State
by any Kentucky retailer" equal to twenty per cent of the invoice price
plus transportation cost, if any to the Kentucky dealer. The Kentucky
court held that "the imposition of the tax against the retailer is not
on the act of receiving the cosmetics, but on the sale and use thereof,
after the retailer has received them." On this interpretation the
Supreme Court sustained the tax. Obviously, other things being equal,
there is little difference between a tax on receiving and a tax on
possession a moment later. 305 U.S. 380 (1939). In Felt & Tarrant
Manufacturing Co. _v._ Gallagher, 306 U.S. 62 (1939), a California use
tax was upheld applicable to a nonresident corporation which solicited
orders from California purchasers through agents for whom it hired
offices in the State and took orders subject to the vendor's approval.
In Nelson _v._ Sears, Roebuck & Company and Nelson _v._ Montgomery Ward
& Company, 312 U.S. 359 and 373 (1941) it was held that a foreign
corporation which maintained retail stores in Iowa could be validly
required to collect an Iowa use tax in respect of mail orders sent by
Iowa purchasers to out-of-state branches of the corporation and filled
by direct shipment by mail or common carrier from those branches to the
purchasers. In General Trading Company _v._ State Tax Commission, 322
U.S. 335 (1944), also involving the Iowa tax, it was held that a company
carrying on no operations in Iowa other than the solicitation of orders
by traveling salesmen was liable for collection of the tax on goods sold
to Iowa residents, even though the corporation was not licensed to do
business in the State and the orders were forwarded for acceptance to
Minnesota where they were filled by direct shipment to Iowa customers.

[601] 309 U.S. 33 (1940).

[602] Ibid. 53-54.

[603] Ibid. 57, citing Ficklen _v._ Shelby County Taxing District, 145
U.S. 1 (1892); Howe Machine Co. _v._ Gage, 100 U.S. 676 (1880); and
Wagner _v._ Covington, 251 U.S. 95 (1919). In the first it was held that
the Robbins case did not apply to a firm of agents and brokers
maintaining an office and samples throughout the year in the taxing
district. The other two cases were totally irrelevant.

[604] 309 U.S. 70 and 430.

[605] Ibid. 414.

[606] 322 U.S. 327 (1944).

[607] Ibid. 330.

[608] Ibid. 332.

[609] 327 U.S. 416 (1946).

[610] Ibid. 417-418.

[611] Ibid. 435.

[612] Memphis Steam Laundry _v._ Stone, 342 U.S. 389 (1952).

[613] Norton Co. _v._ Dept. of Revenue, 340 U.S. 534 (1951), although
decided by a closely divided Court, further confirms this impression.

[614] 9 Wheat. 1, 217-219 (1824).

[615] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849).

[616] Henderson _v._ Mayor of New York, 92 U.S. 259 (1876); New York
_v._ Compagnie Générale Transatlantique, 107 U.S. 59 (1883).

[617] 6 Wall. 35 (1868).

[618] Ibid. 49.

[619] 114 U.S. 196 (1885).

[620] Ibid. 203.

[621] _See_ Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204
(1894); _also_ Edwards _v._ California, 314 U.S. 160 (1941), the
decision in which represents the exact inverse of that in the Crandall
Case, being based by the majority on the commerce clause, while several
of the Justices preferred to put it on the broader grounds invoked by
Justice Miller in the Crandall Case.

[622] Western Union Telegraph Company _v._ Texas, 105 U.S. 460 (1882)
State Freight Tax Case, 15 Wall. 232 (1873) and Pensacola Telegraph Co.
_v._ Western Union Telegraph Co., 96 U.S. 1 (1878) were the precedents
principally relied on.

[623] 8 Wall. 168 (1869).

[624] Ibid. 181.

[625] Ibid. 182.

[626] 15 Wall. 232, 233-234, 278-279 (1873).

[627] 127 U.S. 640 (1888).

[628] Ibid. 645.

[629] Crutcher _v._ Kentucky, 141 U.S. 47 (1891).

[630] Ibid. 57.

[631] 266 U.S. 555 (1925).

[632] 268 U.S. 203 (1925); followed in Cudahy Packing Co. _v._ Hinkle,
278 U.S. 460 (1929). _Cf._, however, Western Live Stock _v._ Bureau of
Revenue, 303 U.S. 250, 255 (1938).

[633] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218
(1933).

[634] Cooney _v._ Mountain States Telephone & Telegraph Co., 294 U.S.
384 (1935).

[635] Fisher's Blend Station _v._ State Tax Commission, 297 U.S. 650,
656 (1936).

[636] Puget Sound Stevedoring Co. _v._ Tax Commission of Washington, 302
U.S. 90 (1937).

[637] Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938).

[638] McCarroll _v._ Dixie Greyhound Lines, 309 U.S. 176 (1940). _See
also_ the following cases in which the Court found a tax to be an
unconstitutional interference with the interstate commerce privilege:
Tax on maintenance of office in Pennsylvania for use of stockholders,
officers, employees, and agents of railroad not operating in
Pennsylvania but a link in a line operating therein, Norfolk & W.R. Co.
_v._ Pennsylvania, 136 U.S. 114 (1890); license tax on sale of liquor as
applied to a sale out of State by mail, Heyman _v._ Hays, 236 U.S. 178
(1915); tax on pipe lines transporting oil or gas produced in State but
which might pass out of State, Eureka Pipe Line Co. _v._ Hallanan, 257
U.S. 265 (1921); United Fuel Gas Co. _v._ Hallanan, 257 U.S. 277 (1921);
Kentucky tax on gasoline purchased in Illinois and used in an
Illinois-Kentucky ferry, Helson & Randolph _v._ Kentucky, 279 U.S. 245
(1929); tax laid on privilege of operating a bus in interstate commerce
because not imposed solely as compensation for use of highways or to
defray expenses of regulating motor traffic, Interstate Transit, Inc.
_v._ Lindsey, 283 U.S. 183 (1931); tax on gas pipe line whose only
activity in State was the use of a thermometer and reduction of pressure
to permit a vendee to draw off gas, State Tax Commission _v._ Interstate
Natural Gas Co., 284 U.S. 41 (1931)--but see East Ohio Gas Co. _v._ Tax
Commission, 283 U.S. 465 (1931); gasoline tax imposed per gallon of
gasoline imported by interstate carriers as fuel for use in their
vehicles within the State as well as in their interstate travel,
Bingaman _v._ Golden Eagle Western Lines, 297 U.S. 626 (1936). _See
also_, for reiteration of the basic rule that the commerce clause
forbids States to tax the privilege of engaging in interstate commerce,
Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 438-439 (1939). In
California _v._ Thompson, 313 U.S. 109 (1941), the Court, overruling Di
Santo _v._ Pennsylvania, 273 U.S. 34 (1927), sustained, as not a
"revenue measure," but "a measure to safeguard the traveling public by
motor vehicle," who are "particularly unable" to protect themselves
against overreaching by those "engaged in a business notoriously subject
to abuses," a California statute requiring that agents for this type of
transportation take out a license for both their interstate and their
intrastate business.

[639] 216 U.S. 1 (1910). _Cf._ Osborne _v._ Florida, 164 U.S. 650
(1897), involving an express business; in Pullman Company _v._ Adams,
189 U.S. 420 (1903); and in Allen _v._ Pullman's Palace Car Co., 191
U.S. 171 (1903). Here State taxes levied on the local business of
companies engaged also in interstate commerce were sustained "on the
assumption" that the companies in question were free to abandon their
local business.

[640] _See also_ Pullman Co. _v._ Kansas ex rel. Coleman, 216 U.S. 56
(1910); Ludwig _v._ Western Union Teleg. Co., 216 U.S. 146 (1910);
Atchison, T. & S.F.R. Co. _v._ O'Connor, 223 U.S. 280, 285 (1912).

[641] 245 U.S. 178 (1917). _Cf._ Baltic Mining Co. _v._ Massachusetts,
231 U.S. 68 (1914); Kansas City Ry. _v._ Kansas, 240 U.S. 227 (1916);
and Kansas City, M. & B.R. Co. _v._ Stiles, 242 U.S. 111 (1916). In each
of these a tax like that involved in Looney _v._ Crane was sustained, in
the first two because the statute set a maximum limit to the tax; in the
third because the amount collected under the act was held to be
"reasonable." The ideology of these decisions is clearly opposed to that
of the cases treated in the text. The rule in Looney _v._ Crane Co. was
held not applicable in the case of a West Virginia corporation doing
business in Illinois and owning practically all of its property there.
An Illinois tax on the local business, which was measured by the total
capitalization of the company was sustained, it being shown further that
the tax was little more than it would have been if levied at the same
rate directly on the property of the company that was in Illinois. Hump
Hairpin Mfg. Co. _v._ Emmerson, 258 U.S. 290 (1922).

[642] 246 U.S. 135 (1918). _See also_ Locomobile Co. of America _v._
Massachusetts, 246 U.S. 146 (1918); Cheney Brothers Co. _v._
Massachusetts, 246 U.S. 147 (1918); Union Pacific R.R. Co. _v._ Pub.
Service Comm., 248 U.S. 67 (1918).

[643] 246 U.S. at 141.

[644] 277 U.S. 163 (1928).

[645] Ibid. 171.

[646] 294 U.S. 384 (1935).

[647] 297 U.S. 403 (1936).

[648] Ibid. 415. Headnote 6.

[649] 8 Wall. 168, 181 (1869). _See also_ Bank of Augusta _v._ Earle, 13
Pet. 519 (1839); and Security Mut. L. Ins. Co. _v._ Prewitt, 202 U.S.
246 (1906).

[650] _See_ Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936);
Southern Natural Gas Corp. _v._ Alabama, 301 U.S. 148 (1937); Atlantic
Refining Co. _v._ Virginia, 302 U.S. 22 (1937); Coverdale _v._
Arkansas-Louisiana Pipe Line Co., 303 U.S. 604 (1938); Ford Motor Co.
_v._ Beauchamp, 308 U.S. 331 (1939); Treasury of Indiana _v._ Wood
Corp., 313 U.S. 62 (1941); Wheeling Steel Corp. _v._ Glander, 337 U.S.
562, 571 (1949); _Cf._ however, James _v._ Dravo Contracting Co., 302
U.S. 134 (1937); Memphis Natural Gas Co. _v._ Stone, 335 U.S. 80, 85-86
(1948).

[651] Philadelphia & R.R. Co. _v._ Pennsylvania (State Freight Tax
Case), 15 Wall. 232 (1873).

[652] Prudential Ins. Co. _v._ Benjamin, 328 U.S. 408, 418 (1946).

[653] 12 Wheat. 419 (1827).

[654] Philadelphia & R.R. Co. _v._ Pennsylvania, 15 Wall. 284 (1873).

[655] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326
(1887).

[656] Western Union Tel. Co. _v._ Massachusetts, 125 U.S. 530 (1888).

[657] Ibid. 547.

[658] _See_ Railroad Co. _v._ Peniston, 18 Wall. 5, 30-31 (1873).

[659] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891).

[660] Ibid. 26.

[661] 165 U.S. 194; upon rehearing 166 U.S. 185 (1897).

[662] 166 U.S. at 220.

[663] _See_ Justice Holmes' language in Galveston, Harrisburg, & S.A.
Ry. Co. _v._ Texas, 210 U.S. 217, 225, 227 (1908). _See also_ Cudahy
Packing Co. _v._ Minnesota 246 U.S. 450 (1918); and Pullman Co. _v._
Richardson, 261 U.S. 330 (1923); and Virginia _v._ Imperial Coal Sales
Co., 293 U.S. 15 (1934).

[664] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891).

[665] Pittsburgh, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 421 (1894);
Cleveland, C.C. & St. L.R. Co. _v._ Backus, 154 U.S. 439 (1894).

[666] Western Union Teleg. Co. _v._ Taggart, 163 U.S. 1 (1896). _See
also_ Western Union Teleg. Co. _v._ Massachusetts, 125 U.S. 530 (1888).

[667] Adams Express Co. _v._ Ohio, 165 U.S. 194 (1897), upon rehearing
166 U.S. 185 (1897).

[668] Great Northern Railway Co. _v._ Minnesota, 278 U.S. 503 (1929).

[669] Nashville, C. & St. L. Railway _v._ Browning, 310 U.S. 362 (1910).

[670] Ibid. 366, citing Union Tank Line Co. _v._ Wright, 249 U.S. 275
(1919); Wallace _v._ Hines, 253 U.S. 66 (1920); Southern R. Co. _v._
Kentucky, 274 U.S. 76 (1927).

[671] Atlantic Lumber Co. _v._ Commissioner, 298 U.S. 553 (1936). _Cf._
Alpha Portland Cement Co. _v._ Massachusetts, 268 U.S. 203 (1925).

[672] 142 U.S. 217 (1891).

[673] Ibid. 227-228.

[674] Citing Pickard _v._ Pullman Southern Car Co., 117 U.S. 34 (1886);
Leloup _v._ Port of Mobile, 127 U.S. 640 (1888); Crutcher _v._ Kentucky,
141 U.S. 47 (1891); Philadelphia & S. Mail Steamship Co. _v._
Pennsylvania, 122 U.S. 326 (1887).

[675] Galveston, Harrisburg & S.A.R. Co. _v._ Texas, 210 U.S. 217
(1908).

[676] Ibid. 226.

[677] Postal Telegraph Cable Co. _v._ Adams, 155 U.S. 688, 697 (1895).
_See also_ Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940),
in which was sustained a five percent gross earnings tax on all
railroads operating in the State, payable in lieu of all other taxes and
found to have "a fair relation to the property employed in the State."

[678] New Jersey Bell Telephone Co. _v._ State Bd. of Taxes &
Assessments, 280 U.S. 338 (1930).

[679] Bass, Ratcliff & Gretton _v._ State Tax Com., 266 U.S. 271 (1924).

[680] Matson Navigation Co. _v._ State Board, 297 U.S. 441 (1936). _See
also_ International Shoe Co. _v._ Shartel, 279 U.S. 429 (1929).

[681] Ford Motor Co. _v._ Beauchamp, 308 U.S. 331 (1939).

[682] International Harvester Co. _v._ Evatt, 329 U.S. 416 (1947).

[683] Galveston, Harrisburg & San Antonio R. Co. _v._ Texas, 210 U.S.
217 (1908).

[684] Wallace _v._ Hines, 253 U.S. 66 (1920).

[685] _See_ pp. 194, 202. _See also_ Interstate Oil Pipe Line Co. _v._
Stone, 337 U.S. 662 (1949) for an extensive review and evaluation of
cases.

[686] Illinois Central R. Co. _v._ Minnesota, 309 U.S. 157 (1940). _See
also_ Wisconsin and Michigan Ry. _v._ Powers, 191 U.S. 379 (1903);
United States Express Co. _v._ Minnesota, 223 U.S. 335 (1912). _See_
note 13 to Justice Rutledge's opinion in Freeman _v._ Hewit, 329 U.S. at
pp. 265-266.

[687] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).
_See also_ United States Express Co. _v._ Minnesota, 223 U.S. 335
(1912); Dept. of Treasury of Indiana _v._ Wood Corp., 313 U.S. 62
(1941); Dept. of Treasury of Indiana _v._ Mfg. Co., 313 U.S. 252 (1941);
Harvester Co. _v._ Dept. of Treasury, 322 U.S. 340 (1944).

[688] Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).

[689] Meyer _v._ Wells, Fargo & Co., 223 U.S. 298 (1912); _also_ the
following note.

[690] Philadelphia & S. Mail S.S. Co. _v._ Pennsylvania, 122 U.S. 326
(1887); Ratterman _v._ Western Union Teleg. Co., 127 U.S. 411 (1888);
Western Union Teleg. Co. _v._ Alabama Board of Assessment (Seay), 132
U.S. 472 (1889); Adams Mfg. Co. _v._ Storen, 304 U.S. 307 (1938); Gwin,
White & Prince _v._ Henneford, 305 U.S. 434 (1939). _Cf._ Fargo _v._
Michigan (Fargo _v._ Stevens), 121 U.S. 230 (1887), as explained in
Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).

[691] Lockhart, Gross Receipts Taxes on Interstate Transportation and
Communication, 57 Harvard L. Rev. 40, 65, 66 (1943); Galveston, H. &
S.A.R. Co. _v._ Texas, 210 U.S. 217 (1908); New Jersey Bell Teleph. Co.
_v._ State Bd. of Taxes and Assessments, 280 U.S. 338 (1930). But _Cf._
Nashville, C. and St. L. Ry. _v._ Browning, 310 U.S. 362 (1940). In both
the Galveston and New Jersey Telephone Company cases, although the
taxable events all occurred within the taxing State, the possibility of
multiple taxation was nevertheless present. _See also_ Puget Sound
Stevedoring Co. _v._ State Tax Commission, 302 U.S. 90 (1937), the
decision in which might have been rested upon the clause of the
Constitution forbidding the States to tax exports. _See also_ Richfield
Oil Corp. _v._ State Board of Equalization, 329 U.S. 69 (1946).

[692] Fisher's Blend Station _v._ State Tax Comm., 297 U.S. 650 (1936);
Western Live Stock _v._ Bureau of Revenue, 303 U.S. 250 (1938).

[693] _See_ p. 193.

[694] _See_ pp. 150-160.

[695] _See_ p. 189.

[696] 303 U.S. 250 (1938).

[697] Ibid. 254.

[698] Ibid. 255-256.

[699] 305 U.S. 434 (1939).

[700] Ibid. 439-440.

[701] 305 U.S. at 455 (1939).

[702] _See_ McCarroll _v._ Dixie Greyhound Lines, Inc., 309 U.S. 176,
188-189 (1940).

[703] Freeman _v._ Hewit, 329 U.S. 249 (1946).

[704] 329 U.S. 249.

[705] The Court relied particularly on Adams Mfg. Co. _v._ Storen, 304
U.S. 307 (1938) in which the multiple taxation test had been used.

[706] Justice Black dissented without opinion. Justice Douglas, speaking
also for Justice Murphy, contended that the sale had been local, and
that the only interstate agency employed had been the mails, an argument
which squares badly with the attitude of the same Justices in United
States _v._ South-Eastern Underwriters Assoc., 322 U.S. 533 (1944).

[707] 330 U.S. 422 (1947), reaffirming Puget Sound Stevedoring Co. _v._
Tax Comm., 302 U.S. 90 (1937).

[708] 330 U.S. at 433.

[709] Justices Murphy, Douglas, and Rutledge thought the decision
correct as to receipts from foreign commerce. Speaking for them, Justice
Douglas made an effort to resurrect Maine _v._ Grand Trunk R. Co., 142
U.S. 217 (1891). Justice Black dissented without opinion.

[710] 334 U.S. 653.

[711] Ibid. 663, citing Western Live Stock _v._ Bureau of Revenue, 303
U.S. 250 (1938); and Ratterman _v._ Western Union Teleg. Co., 127 U.S.
411 (1888).

[712] 335 U.S. 80.

[713] 337 U.S. 662, 666, 677-678, 680.

[714] _See supra_, pp. 196, 204-207.

[715] 247 U.S. 321 (1918).

[716] Ibid. 328-329.

[717] Shaffer _v._ Carter, 252 U.S. 37 (1920).

[718] Underwood Typewriter Co. _v._ Chamberlain, 254 U.S. 113 (1920);
Bass, Ratcliff & Gretton _v._ State Tax Commission, 266 U.S. 271 (1924).

[719] Hans Rees' Sons _v._ North Carolina, 283 U.S. 123, 132, 133
(1931). In this case a North Carolina tax was assessed on the income of
a New York corporation, which bought leather, manufactured it in North
Carolina, and sold its products at wholesale and retail in New York. The
Court observed: "The difficulty of making an exact apportionment is
apparent and hence, when the State has adopted a method not
intrinsically arbitrary, it will be sustained until proof is offered of
an unreasonable and arbitrary application in particular cases." The
decisions in the Underwood and Bass cases, _supra_, "are not authority
for the conclusion that where a corporation manufactures in one State
and sells in another, the net profits of the entire transaction, as a
unitary enterprise, may be attributed, regardless of evidence, to either
State."

[720] Atlantic Coast Line _v._ Daughton, 262 U.S. 413 (1923).

[721] Matson Nav. Co. _v._ State Board, 297 U.S. 441 (1936). _See also_
Butler Bros. _v._ McColgan, 315 U.S. 501 (1942), where the tax was
sustained under the Fourteenth Amendment.

[722] Memphis Gas Co. _v._ Beeler, 315 U.S. 649 (1942).

[723] Ibid. 656-657

[724] Spector Motor Service _v._ O'Connor, 340 U.S. 602 (1951).

[725] 114 U.S. 196 (1885).

[726] Hays _v._ Pacific Mail S.S. Co., 17 How. 596 (1855).

[727] Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); _see also_
Transportation Co. _v._ Parkersburg, 107 U.S. 691 (1883).

[728] Ayer & L. Tie Co. _v._ Kentucky, 202 U.S. 409 (1906). For a résumé
of the rules for taxing vessels _see_ Northwest Airlines _v._ Minnesota,
322 U.S. 292, 314-315 (1944), note 2.

[729] Old Dominion S.S. Co. _v._ Virginia, 198 U.S. 299 (1905): a vessel
enrolled in New York at domicile of owner, but operating wholly in
Virginia, was held taxable in Virginia.

[730] 336 U.S. 169 (1949).

[731] Northwest Airlines _v._ Minnesota, 322 U.S. 292 (1944).

[732] He also invoked New York Central and H.R.R. Co. _v._ Miller, 202
U.S. 584 (1906), where although 12 to 64 per cent of the rolling stock
of the railroad was outside of New York throughout the tax year, New
York was nevertheless allowed to tax it all because no part was in any
other State throughout the year. The case is atypical, a constitutional
sport; _cf._ Union Refrigerator Transit Co. _v._ Kentucky, 199 U.S. 194
(1905).

[733] 322 U.S. at 301-302.

[734] "The apportionment theory is a mongrel one, a cross between desire
not to interfere with State taxation and desire at the same time not
utterly to crush out interstate commerce. It is a practical, but rather
illogical, device to prevent duplication of tax burdens on vehicles in
transit. It is established in our decisions and has been found more or
less workable with more or less arbitrary formulae of apportionment.
Nothing either in theory or in practice commends it for transfer to air
commerce."--Ibid. 306.

[735] Ibid. 308.

[736] Pullman's Palace Car Co. _v._ Pennsylvania, 141 U.S. 18 (1891).

[737] 322 U.S. 309.

[738] 235 U.S. 610 (1915).

[739] Ibid. 622.

[740] Hendrick _v._ Maryland, 235 U.S. 610 (1915).

[741] Kane _v._ New Jersey, 242 U.S. 160 (1916).

[742] Morf _v._ Bingaman, 298 U.S. 407 (1936).

[743] Ingels _v._ Morf, 300 U.S. 290 (1937).

[744] Clark _v._ Poor, 274 U.S. 554 (1927); Hicklin _v._ Coney, 290 U.S.
109 (1933).

[745] Interstate Busses Corp. _v._ Blodgett, 276 U.S. 245 (1928);
Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932).

[746] Aero Mayflower Transit Co. _v._ Georgia Pub. Serv. Commission, 295
U.S. 285 (1935).

[747] Interstate Transit _v._ Lindsey, 283 U.S. 183 (1931). _Cf._ Sprout
_v._ South Bend, 277 U.S. 163 (1928).

[748] _See_ Dixie Ohio Express Co. _v._ State Rev. Comm., 306 U.S. 72
(1939); _also_ Clark _v._ Paul Gray, Inc., 306 U.S. 583 (1939); Aero
Mayflower Transit Co. _v._ Board of R.R. Commrs., 332 U.S. 495, 503-504
(1947). Here was sustained a State statute imposing a flat tax of $10
annually upon each vehicle operated by a motor carrier over the State's
highways, and a fee of one half of one per cent of the carrier's gross
operating revenue from its operations within the State, with an annual
minimum of $15 per vehicle, in consideration of the use of the highways
and in addition to all other motor vehicle license fees and taxes. This
was held, as applied to a carrier engaged solely in interstate commerce,
not to burden such commerce unconstitutionally, although the proceeds
went into the State's general fund subject to appropriation for other
than highway purposes. (Opinion by Rutledge, J., all concurring.) While
a "State may not discriminate against or exclude such interstate traffic
generally in the use of its highways, * * * [it is not] required to
furnish those facilities to it free of charge or indeed on equal terms
with other traffic not inflicting similar destructive effects. * * *
Interstate traffic equally with intrastate may be required to pay a fair
share of the cost and maintenance reasonably related to the use made of
the highways." Ibid., headnote 6.

[749] 339 U.S. 542 (1950).

[750] Ibid. 561.

[751] Justice Roberts for the Court in Great Northern R. Co. _v._
Washington, 300 U.S. 154, 159-161 (1937).

[752] Charlotte, C. & A.R. Co. _v._ Gibbes, 142 U.S. 386 (1892); New
York ex rel. New York Electric Lines Co. _v._ Squire, 145 U.S. 175, 191
(1892).

[753] Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160 (1903);
Mackay Teleg. & Cable Co. _v._ Little Rock, 250 U.S. 94, 99 (1919).

[754] Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419, 425 (1903);
Pure Oil Co. _v._ Minnesota, 248 U.S. 158, 162 (1918).

[755] New Mexico ex rel. McLean _v._ Denver & R.G.R. Co., 203 U.S. 38,
55 (1906). _Cf._ Red "C" Oil Mfg. Co. _v._ Board of Agriculture, 222
U.S. 380, 393 (1912); Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419
(1903).

[756] Brimmer _v._ Rebman, 138 U.S. 78, 83 (1891); Postal Teleg. & Cable
Co. _v._ Taylor, 192 U.S. 64 (1904); Pure Oil Co. _v._ Minnesota, 248
U.S. 158, 162 (1918).

[757] Atlantic & P. Teleg. Co. _v._ Philadelphia, 190 U.S. 160, 164
(1903); Postal Teleg. Cable Co. _v._ Taylor, 192 U.S. 64, 69 (1904);
Foote & Co. _v._ Stanley, 232 U.S. 494, 503, 504 (1914).

[758] Foote & Co. _v._ Stanley, 232 U.S. 494, 505 (1914); Lugo _v._
Suazo, 59 F. (2d) 386 (1932).

[759] Western U. Teleg. Co. _v._ New Hope, 187 U.S. 419, 425 (1903);
Foote & Co. _v._ Stanley, 232 U.S. 494, 507 (1914).

[760] Postal Teleg. Cable Co. _v._ New Hope, 192 U.S. 55 (1904); Foote &
Co. _v._ Stanley, 232 U.S. 494, 508 (1914).

[761] 10 Stat. 112. Sustained in Pennsylvania _v._ Wheeling & Belmont
Bridge Co., 18 How. 421 (1856).

[762] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 13 How. 518
(1852).

[763] Transportation Co. _v._ Parkersburg, 107 U.S. 691, 701 (1883).

[764] 322 U.S. 533 (1944).

[765] 59 Stat. 33 (1945).

[766] 328 U.S. 408 (1946).

[767] Ibid. 429-430, 434-435.

[768] _See_ pp. 163-172.

[769] 9 Wheat. 1 (1824).

[770] Ibid. 203.

[771] 12 Wheat. 419 (1827).

[772] Ibid. 443-444.

[773] _Cf._ 12 Wheat. at 439-440.

[774] 11 Pet. 102 (1837).

[775] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849).

[776] Henderson _v._ New York, 92 U.S. 259 (1876).

[777] Ibid. 272.

[778] Chy Lung _v._ Freeman, 92 U.S. 275 (1876).

[779] Compagnie Francaise de Navigation _v._ Bd. of Health, 186 U.S.
380, 398, (1902). _See also_ Morgan's L. & T.R.S.S. Co. _v._ Bd. of
Health, 118 U.S. 455 (1886); Louisiana _v._ Texas, 176 U.S. 1, 21
(1900).

[780] 211 U.S. 31, 36-37 (1908).

[781] As to concessions by the Court to the practical necessities of
enforcement, _see also_ Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422
(1936); and Whitfield _v._ Ohio, 297 U.S. 431 (1936).

[782] 325 U.S. 761, 766-767.

[783] Ibid. 767; citing: Minnesota Rate Cases, 230 U.S. 352, 399, 400
(1913); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S. 177,
187 (1938), et seq.; California _v._ Thompson, 313 U.S. 109, 113, 114
(1941) and cases cited; Parker _v._ Brown, 317 U.S. 341, 359, 360
(1943).

[784] 325 U.S. at 767; citing: Cooley _v._ Board of Wardens, 12 How. at
319 (1851); South Carolina Highway Dept. _v._ Barnwell Bros., 303 U.S.
at 185; California _v._ Thompson, 313 U.S. at 113; Duckworth _v._
Arkansas, 314 U.S. 390, 394 (1941); Parker _v._ Brown, 317 U.S. at 362,
363.

[785] 325 U.S. at 767; citing: South Carolina Highway Dept. _v._
Barnwell Bros., 303 U.S. at 188 and cases cited; Lone Star Gas Co. _v._
Texas, 304 U.S. 224, 238 (1938); Milk Board _v._ Eisenberg Co., 306 U.S.
346, 351 (1939); Maurer _v._ Hamilton, 309 U.S. 598, 603 (1940);
California _v._ Thompson, 313 U.S. 113, 114 and cases cited.

[786] 325 U.S. at 767, 768; citing: Cooley _v._ Board of Wardens, 12
How. at 319 (1851); Leisy _v._ Hardin, 135 U.S. 100, 108, 109 (1890);
Minnesota Rate Cases, 230 U.S. at 399, 400 (1913); Edwards _v._
California, 314 U.S. 160, 176 (1941).

[787] 325 U.S. at 768; citing: Brown _v._ Maryland, 12 Wheat. 419, 447
(1827); Minnesota Rate Cases, 230 U.S. at 399, 400; Pennsylvania _v._
West Virginia, 262 U.S. 553, 596 (1923); Baldwin _v._ Seelig, 294 U.S.
511, 522 (1935); South Carolina Highway Dept. _v._ Barnwell Bros., 303
U.S. at 185 (1938).

[788] 325 U.S. at 768; citing: Welton _v._ Missouri, 91 U.S. 275, 282
(1876); Hall _v._ DeCuir, 95 U.S. 485, 490 (1878); Brown _v._ Houston,
114 U.S. 622, 631 (1885); Bowman _v._ Chicago & N.W.R. Co., 125 U.S.
465, 481, 482 (1888); Leisy _v._ Hardin, 135 U.S. at 109; In re Rahrer,
140 U.S. 545, 559, 560 (1891); Brennan _v._ Titusville, 153 U.S. 289,
302 (1894); Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204, 212
(1894); Graves _v._ New York ex rel. O'Keefe, 306 U.S. 466, 479 (1939);
Dowling, Interstate Commerce and State Power, 27 Va. Law Rev. 1 (1940).

[789] 325 U.S. at 769; citing: Parker _v._ Brown. 317 U.S. at 362
(1943); Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1, 8 (1943);
_see_ Di Santo _v._ Pennsylvania, 273 U.S. 34, 44 (1927) (and compare
California _v._ Thompson, 313 U.S. 109 (1941)); Illinois Gas Co. _v._
Public Service Co., 314 U.S. 498, 504, 505 (1942).

[790] 325 U.S. at 769; citing: Cooley _v._ Board of Wardens, 12 How. 299
(1851); Kansas City Southern R. Co. _v._ Kaw Valley District, 233 U.S.
75, 79 (1914); South Covington R. Co. _v._ Covington, 235 U.S. 537, 546
(1915); Missouri, K. & T.R. Co. _v._ Texas, 245 U.S. 484, 488 (1918);
St. Louis & S.F.R. Co. _v._ Public Service Comm'n., 254 U.S. 535, 537
(1921): Foster-Fountain Packing Co. _v._ Haydel, 278 U.S. 1, 10 (1928);
Gwin, White & Prince _v._ Henneford, 305 U.S. 434, 441 (1939); McCarroll
_v._ Dixie Lines, 309 U.S. 176 (1940).

[791] 325 U.S. at 769; citing: In re Rahrer, 140 U.S. at 561, 562
(1891); Adams Express Co. _v._ Kentucky, 238 U.S. 190, 198 (1915);
Rosenberger _v._ Pacific Express Co., 241 U.S. 48, 50, 51 (1916); Clark
Distilling Co. _v._ Western Maryland R. Co., 242 U.S. 311, 325, 326
(1917); Whitfield _v._ Ohio, 297 U.S. 431, 438-440 (1936); Kentucky Whip
& Collar Co. _v._ Illinois Central R. Co., 299 U.S. 334, 350, 351
(1937); Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 679 (1945).

[792] 325 U.S. at 769, 770; citing: Addyston Pipe & Steel Co. _v._
United States, 175 U.S. 211, 230 (1899); Louisville & Nashville R. Co.
_v._ Mottley, 219 U.S. 467 (1911); Houston, E. & W.T.R. Co. _v._ United
States, 234 U.S. 342 (1914); American Express Co. _v._ Caldwell, 244
U.S. 617, 626 (1917); Illinois Central R. Co. _v._ Public Utilities
Comm'n., 245 U.S. 493, 506 (1918); New York _v._ United States, 257 U.S.
591, 601 (1922); Louisiana Public Service Comm'n. _v._ Texas & N.O.R.
Co., 284 U.S. 125, 130 (1931); Pennsylvania R. Co. _v._ Illinois Brick
Co., 297 U.S. 447, 459, (1936).

[793] 325 U.S. at 770; citing: Gwin, White & Prince _v._ Henneford, 305
U.S. 434, 441 (1939).

[794] 325 U.S. at 770; citing: Terminal Railroad Assn. _v._ Brotherhood,
318 U.S. 1, 8 (1943); Southern R. Co. _v._ King, 217 U.S. 524 (1910).

[795] Peik _v._ Chicago & N.W.R. Co., 94 U.S. 164 (1877).

[796] Wabash, St. L. & P.R. Co. _v._ Illinois, 118 U.S. 557 (1886).

[797] 24 Stat. 379 (1887).

[798] Wisconsin Railroad Com. _v._ Chicago, B. & Q.R.R. Co., 257 U.S.
563 (1922).

[799] Gladson _v._ Minnesota, 166 U.S. 427 (1897); followed in Lake
Shore & M.S.R. Co. _v._ Ohio ex rel. Lawrence, 173 U.S. 285 (1899), in
which an Ohio statute requiring that "each company shall cause three,
each way, of its regular trains carrying passengers, * * * Sundays
excepted, to stop at a station, city or village, containing three
thousand inhabitants, for a time sufficient to receive and let off
passengers; * * *" was sustained.

[800] Illinois Central R.R. Co. _v._ Illinois, 163 U.S. 142, 153 (1896).

[801] Chicago, Burlington & Quincy R.R. Co. _v._ Wisconsin R.R. Com.,
237 U.S. 220, 226 (1915); St. Louis & San Francisco R. Co. _v._ Public
Service Com., 254 U.S. 535, 536-537 (1921).

[802] St. Louis & San Francisco R. Co. _v._ Public Service Com., 261
U.S. 369, 371 (1923).

[803] Wisconsin, Minnesota & Pacific R.R. _v._ Jacobson, 179 U.S. 287
(1900).

[804] Missouri P.R. Co. _v._ Larabee Flour Mills Co., 211 U.S. 612
(1909).

[805] McNeill _v._ Southern R. Co., 202 U.S. 543 (1906).

[806] St. Louis S.W.R. Co. _v._ Arkansas, 217 U.S. 136 (1910).

[807] _See e.g._ The Court's language in Hannibal & St. L.R. Co. _v._
Husen, 95 U.S. 465, 470 (1878); New York, N.H. & H.R. Co. _v._ New York,
165 U.S. 628, 631 (1897); Lake Shore & M.S.R. Co. _v._ Ohio ex rel.
Lawrence, 173 U.S. 285, 292 (1899); Hennington _v._ Georgia, 163 U.S.
299 (1896); Simpson _v._ Shepard (Minnesota Rate Cases), 230 U.S. 352,
402-410 (1913).

[808] Smith _v._ Alabama, 124 U.S. 465 (1888); _see also_ Nashville, C.
& St. L.R. Co. _v._ Alabama, 128 U.S. 96 (1888); McCall _v._ California,
136 U.S. 104 (1890); Missouri, K. & T.R. Co. _v._ Haber, 109 U.S. 613,
633 (1898).

[809] New York, N.H. & H.R. Co. _v._ New York, 165 U.S. 628 (1807). _See
also_ Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133, 137 (1898).

[810] Erb _v._ Morasch, 177 U.S. 584 (1900).

[811] Erie R.R. Co. _v._ Public Utility Commrs., 254 U.S. 394 (1921).

[812] Atchison, T. & S.F.R. Co. _v._ R.R. Comm., 283 U.S. 380 (1931).

[813] Chicago, R.I. & P.R. Co. _v._ Arkansas, 219 U.S. 453 (1911).

[814] Ibid, 453, 466. _See also_ St. Louis, I.M. & S. Co. _v._ Arkansas,
240 U.S. 518 (1916); Missouri P.R. Co. _v._ Norwood, 283 U.S. 249
(1931).

[815] Terminal Railroad Assn. _v._ Brotherhood, 318 U.S. 1 (1943).

[816] 163 U.S. 299 (1896). In South Covington R. Co. _v._ Covington, 235
U.S. 537 (1915), the Court sustained a municipal ordinance which
prohibits the company from allowing passengers to ride on the rear or
front platforms without suitable barriers, and requires that the cars be
kept clean and ventilated and fumigated. However, provisions of the
ordinance that cars shall never be permitted to fall below a certain
temperature and regulating the number of passengers to be carried in the
cars were held to be unreasonable and violative of the commerce clause.
There was no unconstitutional interference with interstate commerce by a
municipal ordinance which directed a railway company to remove its
tracks from a busy street intersection. Denver & R.G.R. Co. _v._ Denver,
250 U.S. 241 (1919).

[817] Chicago, M. & St. P.R. Co. _v._ Solan, 169 U.S. 133 (1898);
Richmond & A.R. Co. _v._ Patterson Tobacco Co., 169 U.S. 311 (1898).

[818] 325 U.S. 761, 779-780 (1945).

[819] Kansas City Southern R. Co. _v._ Kaw Valley Drainage Dist., 233
U.S. 75, 79 (1914).

[820] 244 U.S. 310 (1917).

[821] _Cf._ Southern R. Co. _v._ King, 217 U.S. 524 (1910), where the
crossings were fewer and the burden to interstate commerce was shown not
to be unduly heavy.

[822] 302 U.S. 1, 15 (1937).

[823] 325 U.S. 761, 771-776.

[824] 328 U.S. 373, 380, 386 (1946).

[825] Hendrick _v._ Maryland, 235 U.S. 610 (1915); Kane _v._ New Jersey,
242 U.S. 160 (1916).

[826] Sproles _v._ Binford, 286 U.S. 374 (1932). _See also_ Morris _v._
Duby, 274 U.S. 135 (1927).

[827] South Carolina State Highway Dept. _v._ Barnwell Bros. Inc., 303
U.S. 177 (1938).

[828] 289 U.S. 92 (1933).

[829] 309 U.S. 598 (1940).

[830] 306 U.S. 79 (1939).

[831] Eichholz _v._ Public Service Com. of Missouri, 306 U.S. 268
(1939), citing Cooley _v._ Board of Wardens, 12 How. 299 (1851).

[832] Railway Express Agency _v._ New York, 336 U.S. 106 (1949).

[833] Ibid. 111. For a more extreme application of this idea by a
narrowly divided Court, in a quite special situation, _see_ Buck et al.
_v._ California, 342 U.S. 99 (1952).

[834] Continental Baking Co. _v._ Woodring, 286 U.S. 352 (1932);
Stephenson _v._ Binford, 287 U.S. 251 (1932); Hicklin _v._ Coney, 290
U.S. 169 (1933).

[835] Michigan Pub. Utilities Com. _v._ Duke, 266 U.S. 570 (1925). _See
also_ Smith _v._ Cahoon, 283 U.S. 553 (1931); and Continental Baking Co.
_v._ Woodring, 286 U.S. 352 (1932).

[836] Buck _v._ Kuykendall, 267 U.S. 307 (1925). _See also_, Bush & Sons
Co. _v._ Maloy, 267 U.S. 317 (1925); Interstate Busses Corp. _v._
Holyoke Street R. Co., 273 U.S. 45 (1927).

[837] 273 U.S. 34 (1927). _See also_ McCall _v._ California, 136 U.S.
104 (1890). In the former case, agents soliciting patronage for
steamship lines were involved; in the latter, an agent soliciting
patronage for a particular railway line.

[838] California _v._ Thompson, 313 U.S. 109, 115-116 (1941).

[839] 9 Wheat. 1 (1824).

[840] 2 Pet. 245, 252 (1829).

[841] 12 How. 299 (1851).

[842] Foster _v._ Davenport, 22 How. 244 (1859); Sinnot _v._ Davenport,
22 How. 227 (1859). _See also_ Lord _v._ Steamship Co., 102 U.S. 541
(1881).

[843] Foster _v._ Master & Wardens of Port of New Orleans, 94 U.S. 246
(1877).

[844] Ibid. 247.

[845] Northern Transp. Co. _v._ Chicago, 99 U.S. 635, 643 (1879);
Willamette Iron Bridge Co. _v._ Hatch, 125 U.S. 1 (1888); Illinois _v._
Economy Power Light Co., 234 U.S. 497 (1914).

[846] Economy Light and Power Co. _v._ United States, 256 U.S. 113
(1921).

[847] Harman _v._ Chicago, 147 U.S. 396, 412 (1893).

[848] 302 U.S. 1 (1937).

[849] Ibid. 10.

[850] 333 U.S. 28 (1948).

[851] Hall _v._ De Cuir, 95 U.S. 485 (1878).

[852] 2 Pet. 245 (1829).

[853] Pound _v._ Turck, 95 U.S. 459 (1878); Lindsay & Phelps Co. _v._
Mullen, 176 U.S. 126 (1900).

[854] 3 Wall. 713 (1866).

[855] Ibid. 729. _See also_, Escanaba & L.M. Transp. Co. _v._ Chicago,
107 U.S. 678 (1883); and Cardwell _v._ American River Bridge Co., 113
U.S. 205 (1885).

[856] 119 U.S. 543 (1886).

[857] Ibid. 548-549.

[858] Packet Co. _v._ Keokuk, 95 U.S. 80 (1877); Ouachita Packet Co.
_v._ Aiken, 121 U.S. 444 (1887).

[859] Prosser _v._ Northern P.R. Co., 152 U.S. 59 (1894). _See also_
Sands _v._ Manistee R. Imp. Co., 123 U.S. 288 (1887); Gring _v._ Ives,
222 U.S. 365 (1912).

[860] Cases cited in note 7 above;[Transcriber's Note: Reference is to
Footnote 858, above.] Parkersburg & O. Transp. Co. _v._ Parkersburg, 107
U.S. 691 (1883).

[861] Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 215 (1885);
Conway _v._ Taylor, 1 Black 603 (1862); Wiggins Ferry Co. _v._ East St.
Louis, 107 U.S. 365 (1883).

[862] Mayor and Board of Aldermen of Vidalia _v._ McNeely, 274 U.S. 676
(1927). _See also_ Helson _v._ Kentucky, 279 U.S. 245, 249 (1929).

[863] Covington & C. Bridge Co. _v._ Kentucky, 154 U.S. 204 (1894).

[864] Port Richmond and Bergen Point Ferry Co. _v._ Bd. of Chosen
Freeholders, 234 U.S. 317 (1914).

[865] New York Central & H.R.R. Co. _v._ Bd. of Chosen Freeholders, 227
U.S. 248 (1913).

[866] Wilmington Transp. Co. _v._ R.R. Com., 236 U.S. 151 (1915).

[867] Western U. Teleg. Co. _v._ Pendleton, 122 U.S. 347 (1887).

[868] Western U. Teleg. Co. _v._ Foster, 247 U.S. 105 (1918).

[869] Western U. Teleg. Co. _v._ Crovo, 220 U.S. 364 (1911).

[870] Western U. Teleg. Co. _v._ Commercial Milling Co., 218 U.S. 406
(1910).

[871] Western U. Teleg. Co. _v._ Brown, 234 U.S. 542 (1914).

[872] Essex _v._ New England Teleg. Co., 239 U.S. 313 (1915).

[873] Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 96 U.S. 1 (1878).

[874] Western Union Teleg. Co. _v._ Richmond, 224 U.S. 160 (1912). _See
also_ Postal Teleg. Cable Co. _v._ Richmond, 249 U.S. 252 (1919).

[875] Northwestern Bell Teleph. Co. _v._ Nebraska State R. Com., 297
U.S. 471 (1936).

[876] Bell Tel. Co. _v._ Pennsylvania Public Util. Com., 309 U.S. 30
(1940).

[877] Missouri ex rel. Barrett _v._ Kansas Natural Gas Co., 265 U.S. 298
(1924).

[878] Public Utilities Com. _v._ Attleboro Steam & Electric Co., 273
U.S. 83 (1927).

[879] Pennsylvania Natural Gas Co. _v._ Public Serv. Com., 252 U.S. 23
(1920); Public Utilities Com. _v._ Landon, 249 U.S. 236 (1919).

[880] Panhandle Eastern Pipe Lines Co. _v._ Public Serv. Com., 332 U.S.
507 (1947).

[881] Panhandle Co. _v._ Michigan Comm'n., 341 U.S. 329 (1951).

[882] Peoples Natural Gas Co. _v._ Public Serv. Com., 270 U.S. 550
(1926).

[883] East Ohio Gas Co. _v._ Tax Com. of Ohio, 283 U.S. 465 (1931).

[884] Western Distributing Co. _v._ Public Serv. Com. of Kansas, 285
U.S. 119 (1932).

[885] Arkansas Louisiana Gas Co. _v._ Dept. of Public Utilities, 304
U.S. 61 (1938).

[886] Lone Star Gas Co. _v._ Texas, 304 U.S. 224 (1938).

[887] Cities Service Co. _v._ Peerless Co., 340 U.S. 179 (1950).

[888] Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944). _See also_
International Harvester Co. _v._ Kentucky, 234 U.S. 579 (1914); Sioux
Remedy Co. _v._ Cope, 235 U.S. 197 (1914); Interstate Amusement Co. _v._
Albert, 239 U.S. 560 (1916).

[889] 322 U.S. at 207-209.

[890] Sioux Remedy Co. _v._ Cope, 235 U.S. 197 (1914).

[891] International Milling Co. _v._ Columbia T. Co., 292 U.S. 511
(1934).

[892] Natural Gas Pipeline Co. _v._ Slattery, 302 U.S. 300 (1937).

[893] Engel _v._ O'Malley, 219 U.S. 128 (1911).

[894] Merrick _v._ Halsey & Co., 242 U.S. 568 (1917). _See also_ Hall
_v._ Geiger-Jones Co., 242 U.S. 539 (1917); Caldwell _v._ Sioux Falls
Stock Yards Co., 242 U.S. 559 (1917).

[895] Hartford Accident & Indemnity Co. _v._ Illinois ex rel.
McLaughlin, 298 U.S. 155 (1936), citing Cargill Co. _v._ Minnesota, 180
U.S. 452, 470 (1901); Simpson _v._ Shepard (Minnesota Rate Case), 230
U.S. 352, 410 (1913); Hall _v._ Geiger-Jones Co., 242 U.S. 539, 557
(1917); Federal Compress & Warehouse Co. _v._ McLean, 291 U.S. 17
(1934).

[896] Davis _v._ Cleveland, C.C. & St. L. Co., 217 U.S. 157 (1910).

[897] Martin _v._ West, 222 U.S. 191 (1911).

[898] The "Winnebago," 205 U.S. 354, 362 (1907).

[899] Justice Hughes for the Court in Minnesota Rate Cases (Simpson _v._
Shepard), 230 U.S. 352, 406 (1913).

[900] Ibid. 408.

[901] Railroad Co. _v._ Husen, 95 U.S. 465 (1878).

[902] Kimmish _v._ Ball, 129 U.S. 217 (1889).

[903] Smith _v._ St. Louis & S.W.R. Co., 181 U.S. 248 (1901).

[904] Ibid. 255. Morgan's S.S. Co. _v._ Louisiana Bd. of Health, 118
U.S. 455 (1886) is cited.

[905] Hebe Co. _v._ Shaw, 248 U.S. 297 (1919).

[906] Hygrade Provision Co. _v._ Sherman, 266 U.S. 497 (1925).

[907] Mintz _v._ Baldwin, 289 U.S. 346 (1933).

[908] Pacific States Box & Basket Co. _v._ White, 296 U.S. 176 (1935).

[909] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936).

[910] Highland Farms Dairy, Inc. _v._ Agnew, 300 U.S. 608 (1937).

[911] Bourjois, Inc. _v._ Chapman, 301 U.S. 183 (1937).

[912] Clason _v._ Indiana, 306 U.S. 439 (1939).

[913] Milk Control Bd. _v._ Eisenberg Farm Products, 306 U.S. 346
(1939).

[914] Patapsco Guano Co. _v._ North Carolina, 171 U.S. 345 (1898).

[915] Savage _v._ Jones, 225 U.S. 501 (1912); followed in Corn Products
Refining Co. _v._ Eddy, 249 U.S. 427 (1919).

[916] Pure Oil Co. _v._ Minnesota, 248 U.S. 158 (1918).

[917] Mutual Film Corp. _v._ Hodges, 236 U.S. 248 (1915).

[918] Minnesota _v._ Barber, 136 U.S. 313 (1890); _see also_ Brimmer
_v._ Rebman, 138 U.S. 78 (1891).

[919] 136 U.S. at 322. _See also_ pp. 328-329.

[920] Voight _v._ Wright, 141 U.S. 62 (1891).

[921] Hale _v._ Bimco Trading Co., 306 U.S. 375 (1939).

[922] Dean Milk Co. _v._ Madison, 340 U.S. 349 (1951).

[923] 12 Wheat. 419 (1827).

[924] Ibid. 449.

[925] Woodruff _v._ Parham, 8 Wall. 123 (1869). There were later some
departures from the rule, apparently due to inattention, in cases
involving oil. _See_ Standard Oil _v._ Graves, 249 U.S. 389 (1919);
Askren _v._ Continental Oil Co., 252 U.S. 444 (1920); Bowman _v._
Continental Oil Co., 256 U.S. 642 (1921) and Texas Co. _v._ Brown, 258
U.S. 466 (1922). These cases were "qualified," and in fact disavowed in
Sonneborn Bros. _v._ Cureton, 262 U.S. 506, 520 (1923). _Cf._ the
contemporary case of Wagner _v._ Covington, 251 U.S. 95 (1912) where the
true rule is followed.

[926] Mugler _v._ Kansas, 123 U.S. 623 (1887).

[927] Kidd _v._ Pearson, 128 U.S. 1 (1888).

[928] 125 U.S. 465 (1888).

[929] Leisy & Co. _v._ Hardin, 135 U.S. 100 (1890).

[930] 26 Stat. 313 (1890); sustained in In re Rahrer, 140 U.S. 545
(1891).

[931] Rhodes _v._ Iowa, 170 U.S. 412 (1898).

[932] 37 Stat. 699 (1913); sustained in Clark Distilling Co. _v._
Western Md. Ry. Co., 242 U.S. 311 (1917).

[933] Austin _v._ Tennessee, 179 U.S. 343 (1900).

[934] 155 U.S. 461 (1894).

[935] 135 U.S. 100 (1890).

[936] 155 U.S. at 474.

[937] Schollenberger _v._ Pennsylvania, 171 U.S. 1 (1898).

[938] Collins _v._ New Hampshire, 171 U.S. 30 (1898).

[939] _See_ note 1 above. [Transcriber's Note: Reference is to Footnote
933, above.]

[940] State Board _v._ Young's Market Co., 299 U.S. 59 (1936); Finch &
Co. _v._ McKittrick, 305 U.S. 395 (1939); Brewing Co. _v._ Liquor
Comm'n., 305 U.S. 391 (1939); Ziffrin, Inc. _v._ Reeves, 308 U.S. 132
(1939).

[941] Duckworth _v._ Arkansas, 314 U.S. 390 (1941); followed in Carter
_v._ Virginia, 321 U.S. 131 (1944). Justice Jackson would have preferred
to rest the decision on the Twenty-first Amendment instead of "what I
regard as an unwise extension of State power over interstate commerce,"
314 U.S. at 397; and appears to have converted Justice Frankfurter.
_See_ latter's opinion in 321 U.S. at 139-143.

[942] 297 U.S. 431 (1936).

[943] 45 Stat 1084 (1929).

[944] 297 U.S. at 440. _See also_ Justice Cardozo's remarks in Baldwin
_v._ Seelig, 294 U.S. 511, 526-527 (1935).

[945] _Cf._ Plumley _v._ Massachusetts, 155 U.S. 461 (1894); Savage _v._
Jones, 225 U.S. 501 (1912); Corn Products Refining Co. _v._ Eddy, 249
U.S. 427 (1919).

[946] Elkison _v._ Deliesseline, 8 Fed. Cas. No. 4366 (1823).

[947] For interesting particulars _see_ 2 Charles Warren, The Supreme
Court in United States History, 84-87.

[948] 1 Op. Atty. Gen. 659.

[949] 2 Op. Atty. Gen. 426.

[950] 11 Pet. 102 (1837).

[951] Smith _v._ Turner (Passenger Cases), 7 How. 283 (1849).

[952] Crandall _v._ Nevada, 6 Wall. 35 (1868).

[953] 314 U.S. 160 (1941).

[954] Ibid. 172.

[955] Ibid. 173. Justice Cardozo's words, quoted by Justice Byrnes,
occur in Baldwin _v._ Seelig, 294 U.S. 511, 523 (1935). Justice Byrnes'
answer to another argument of the State, based on historical conceptions
of the word "indigent," was, "poverty and immorality are not
synonymous."

[956] _See_ especially Justice Douglas' forceful opinion. 314 U.S.
177-181.

[957] 161 U.S. 519 (1896).

[958] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908).

[959] 221 U.S. 229 (1911).

[960] Ibid. 255-256.

[961] 262 U.S. 553 (1923).

[962] 237 U.S. 52 (1915).

[963] Ibid. 61.

[964] 258 U.S. 50, 61 (1922).

[965] 258 U.S. 50 (1922); 66 L. Ed. 458, Hd. 2.

[966] _See_ pp. 193-195.

[967] 291 U.S. 502 (1934); followed in Hegeman Farms Corp. _v._ Baldwin,
293 U.S. 163 (1934).

[968] 294 U.S. 511 (1935).

[969] Milk Control Bd. _v._ Eisenberg Farm Products, 306 U.S. 346
(1939).

[970] Ibid. 352.

[971] Hood _v._ Du Mond, 336 U.S. 525, 535 (1949).

[972] Foster-Fountain Packing Co. _v._ Haydel, 278 U.S. 1 (1928).

[973] Ibid. 13.

[974] Toomer _v._ Witsell, 334 U.S. 385 (1948). Other features of the
South Carolina act were found to violate article IV, section 2. _See_ p.
690.

[975] Bayside Fish Flour Co. _v._ Gentry, 297 U.S. 422 (1936).

[976] Ibid. 426, citing Silz _v._ Hesterberg, 211 U.S. 31, 39 (1908).

[977] 34 Stat. 584 (1906).

[978] Chicago, I. & L.R. Co. _v._ United States, 219 U.S. 486 (1911).

[979] Southern R. Co. _v._ Reid, 222 U.S. 424 (1912); Southern R. Co.
_v._ Burlington Lumber Co., 225 U.S. 99 (1912).

[980] Chicago, R.I. & P.R. Co. _v._ Hardwick Farmers Elevator Co., 226
U.S. 426 (1913).

[981] St. Louis, I.M. & S.R. Co. _v._ Edwards, 227 U.S. 265 (1913).

[982] Yazoo & M.V.R. Co. _v._ Greenwood Grocery Co., 227 U.S. 1 (1913).
In this case the severity of the regulation furnished additional reason
for its disallowance.

[983] 226 U.S. 491 (1913). For the Court's reiteration of the formula
governing such cases, _see_ ibid. 505-506. _See also_ Barrett _v._ New
York, 232 U.S. 14 (1914); Chicago, R.I. & P.R. Co. _v._ Cramer, 232 U.S.
490 (1914); Atchison, T. & S.F.R. Co. _v._ Harold, 241 U.S. 371 (1916);
Missouri P.R. Co. _v._ Porter, 273 U.S. 341 (1927). A year before the
enactment of the Carmack Amendment the Court had held that the
imposition by a State upon the initial or any connecting carrier of the
duty of tracing the freight and informing the shipper in writing when,
where, how, and by which carrier the freight was lost, damaged, or
destroyed, and of giving the names of the parties and their official
position, by whom the truth of the facts set out in the information
could be established, was, when applied to interstate commerce, a
violation of the commerce clause. Central of Georgia R. Co. _v._
Murphey, 196 U.S. 194, 202 (1905). The Court's opinion definitely
invited Congress to deal with the subject, as it does in the Carmack
Amendment.

[984] 35 Stat. 65 (1908); 36 Stat. 291 (1910).

[985] 34 Stat. 1415 (1907).

[986] 27 Stat. 531 (1893); 32 Stat. 943 (1903).

[987] Mondou _v._ New York, N.H. & H.R. Co. (Second Employers' Liability
Cases), 223 U.S. 1 (1912); Southern R. Co. _v._ Railroad Com., 236 U.S.
439 (1915).

[988] Erie R. Co. _v._ New York, 233 U.S. 671 (1914).

[989] 26 Stat. 414 (1890).

[990] Crossman _v._ Lurman, 192 U.S. 189 (1904).

[991] 34 Stat. 768 (1906); Savage _v._ Jones, 225 U.S. 501 (1912),
citing Missouri, Kansas & Texas Ry. Co. _v._ Haber, 169 U.S. 613 (1898);
Reid _v._ Colorado, 187 U.S. 137 (1902); Asbell _v._ Kansas, 209 U.S.
251 (1908); Southern Ry. Co. _v._ Reid, 222 U.S. 424, 442 (1912).

[992] McDermott _v._ Wisconsin, 228 U.S. 115 (1913).

[993] Ibid. 137.

[994] Armour & Co. _v._ North Dakota, 240 U.S. 510 (1916).

[995] 37 Stat. 315 (1912); 39 Stat. 1165 (1917).

[996] Oregon-Washington R. & Nav. Co. _v._ Washington, 270 U.S. 87
(1926).

[997] 44 Stat. 250 (1926).

[998] Mintz _v._ Baldwin, 289 U.S. 346 (1933).

[999] 32 Stat. 791 (1903); 33 Stat. 1264 (1905).

[1000] Townsend _v._ Yeomans, 301 U.S. 441 (1937).

[1001] 49 Stat. 731 (1935).

[1002] Allen-Bradley Local _v._ Employment Relations Board, 315 U.S. 740
(1942).

[1003] 49 Stat. 449 (1935).

[1004] Quoting Napier _v._ Atlantic Coast Line R. Co., 272 U.S. 605, 611
(1926).

[1005] Parker _v._ Brown, 317 U.S. 341 (1943).

[1006] 50 Stat. 246 (1937).

[1007] 317 U.S. at 368.

[1008] Ibid. 362.

[1009] Union Brokerage Co. _v._ Jensen, 322 U.S. 202 (1944).

[1010] Ibid. 211.

[1011] Panhandle Eastern Pipe Line Co. _v._ Public Serv. Com. of
Indiana, 332 U.S. 507 (1947); Rice _v._ Chicago Board of Trade, 331 U.S.
247 (1947).

[1012] 52 Stat. 821 (1938).

[1013] 49 Stat. 1491 (1936).

[1014] 49 Stat. 543 (1935); 54 Stat. 919-920 (1940).

[1015] California _v._ Zook, 336 U.S. 725 (1949).

[1016] 52 Stat. 821 (1938).

[1017] Illinois Gas Co. _v._ Public Service Co., 314 U.S. 498 (1942).

[1018] 26 U.S.C.A. § 2320-2327.

[1019] Cloverleaf Co. _v._ Patterson, 315 U.S. 148 (1942). Four
Justices, speaking by Chief Justice Stone dissented, on the basis of
Mintz _v._ Baldwin, 289 U.S. 346 (1933); Kelly _v._ Washington ex rel.
Foss Co., 302 U.S. 1 (1937); and Welch Co. _v._ New Hampshire, 306 U.S.
79 (1939).

[1020] 39 Stat. 486 (1916); amended by 46 Stat. 1463 (1931).

[1021] Rice _v._ Santa Fe Elevator Corp., 331 U.S. 218 (1947).

[1022] _See_ note 1 above. [Transcriber's Note: Reference is to Footnote
1016, above.]

[1023] Interstate Natural Gas Co. _v._ Federal Power Com., 331 U.S. 682
(1947).

[1024] 49 U.S.C.A. 5.

[1025] Schwabacher _v._ United States, 334 U.S. 182 (1948).

[1026] Seaboard Air Line R. Co. _v._ Daniel, 333 U.S. 118 (1948).

[1027] Hill _v._ Florida, 325 U.S. 538 (1945).

[1028] 49 Stat. 449 (1935).

[1029] 325 U.S. at 542.

[1030] Auto Workers _v._ Wisconsin Board, 336 U.S. 245 (1949).

[1031] 49 Stat. 449 (1935); 61 Stat. 136 (1947).

[1032] Algoma Plywood & Veneer Co. _v._ Wisconsin Bd., 336 U.S. 301
(1949).

[1033] Automobile Workers _v._ O'Brien, 339 U.S. 454 (1950); Bus
Employees _v._ Wisconsin Board, 340 U.S. 383 (1951).

[1034] United States _v._ Kagama, 118 U.S. 375, 384 (1886); _Cf._ United
States _v._ Holliday, 3 Wall. 407 (1866).

[1035] 16 Stat. 544, 566; R.S. 2079.

[1036] _See_ United States _v._ Sandoval, 231 U.S. 28 (1914).

[1037] _See_ Perrin _v._ United States, 232 U.S. 478 (1914); Johnson
_v._ Gearlds, 234 U.S. 422 (1914); Dick _v._ United States, 208 U.S. 340
(1908).

[1038] United States _v._ Nice, 241 U.S. 591 (1916), overruling Re Heff,
197 U.S. 488, 509 (1905).

[1039] United States _v._ Sandoval, 231 U.S. 28 (1914).

[1040] United States _v._ Holliday, 3 Wall. 407, 419 (1866).

[1041] Ex parte Webb, 225 U.S. 663 (1912).

[1042] Boyd _v._ Nebraska, 143 U.S. 135, 162 (1892).

[1043] 10 How. 393 (1857).

[1044] Ibid. 417, 419.

[1045] Mackenzie _v._ Hare, 239 U.S. 299, 311 (1915).

[1046] 66 Stat. 163; Public Law 414, 82d Cong., 2d Sess. (1952).

[1047] Ibid. tit. III, § 301. The first category comprises, it should be
noted, those who are citizens by the opening clause of Amendment XIV,
which embodies Chief Justice Marshall's holding in Gassies _v._ Ballon,
that a citizen of the United States, residing in any State of the Union,
is a citizen of that State. 6 Pet. 761, 762 (1832).

[1048] 66 Stat. 163; tit. III, §§ 302-307. These categories illustrate
collective naturalization. "Instances of collective naturalization by
treaty or by statute are numerous." Boyd _v._ Nebraska, 143 U.S. 135,
162 (1892). _See also_ Elk _v._ Wilkins, 112 U.S. 94 (1884).

[1049] 57 Stat. 600.

[1050] 66 Stat. 163, tit. III, § 311.

[1051] Ibid. § 313 (a) (4-6).

[1052] Ibid. § 313 (c).

[1053] 66 Stat. 163, § 337 (a). In United States _v._ Schwimmer, 279
U.S. 644 (1929); and United States _v._ Macintosh, 283 U.S. 605 (1931)
it was held, by a divided Court, that clauses (3) and (4) of the oath,
as previously prescribed, required the candidate for naturalization to
be ready and willing to bear arms for the United States, but these
holdings were overruled in Girouard _v._ United States, 328 U.S. 61
(1946).

[1054] 66 Stat. 163, § 340 (a); _see also_ Johannessen _v._ United
States, 225 U.S. 227 (1912).

[1055] Ibid. § 340 (c). For cancellation proceedings under the
Nationality Act of 1910 (54 Stat. 1158, § 338); _see_ Schneiderman _v._
United States, 320 U.S. 118 (1943); Baumgartner _v._ United States 322
U.S. 665 (1944), where district court decisions ordering cancellation
were reversed on the ground that the Government had not discharged the
burden of proof resting upon it. Knauer _v._ United States, 328 U.S. 654
(1946) represents a less rigid view.

[1056] Osborn _v._ Bank of the United States, 9 Wheat. 738, 827 (1824).

[1057] 328 U.S. 654 (1946).

[1058] Ibid. 658.

[1059] Johannessen _v._ United States, 225 U.S. 227 (1912) and Knauer
_v._ United States, 328 U.S. 654, 673 (1946).

[1060] 66 Stat. 163, tit. III, § 352 (a).

[1061] Perkins _v._ Elg, 307 U.S. 325, 329, 334 (1939). Naturalization
has a retroactive effect and removes all liability to forfeiture of land
held while an alien (Osterman _v._ Baldwin, 6 Wall. 116, 122 (1867));
the subsequent naturalization of an alien who takes land by grant or by
location on public land relates back and obviates every consequence of
his alien disability (Manuel _v._ Wulff, 152 U.S. 505, 511 (1894); Doe
ex dem. Governeur's Heirs _v._ Robertson, 11 Wheat. 332, 350 (1826)). A
certificate of naturalization, while conclusive as a judgment of
citizenship, cannot be introduced in a distinct proceeding as evidence
of residence, age or good character of the person naturalized (Mutual
Ben. L. Ins. Co. _v._ Tisdale, 91 U.S. 238 (1876)).

[1062] Chirac _v._ Chirac, 2 Wheat. 259, 269 (1817).

[1063] Holmgren _v._ United States, 217 U.S. 509 (1910), where it was
also held that Congress may provide for the punishment of false swearing
in such proceedings in State court. Ibid. 520.

[1064] Spragins _v._ Houghton, 3 Ill. 377 (1840); Stewart _v._ Foster, 2
Binney's (Pa.) 110 (1809).

[1065] Shanks _v._ Dupont, 3 Pet. 242, 240 (1830).

[1066] 15 Stat. 223; 8 U.S.C.A. § 800.

[1067] MacKenzie _v._ Hare, 239 U.S. 299, 309, 311-312 (1915). In this
case, a now obsolete statute (34 Stat. 1228), known as the Citizenship
Act of 1907, which divested the citizenship of a woman marrying an
alien, was upheld as constitutional. Under the Act of June 27, 1952,
these conditions comprise the following: (1) Obtaining naturalization in
a foreign State; (2) Taking an oath of allegiance to a foreign State;
(3) Serving in the armed forces of a foreign State without authorization
and with consequent acquisition of foreign nationality; (4) Assuming
public office under the government of a foreign State, for which only
nationals of that State are eligible; (5) Voting in an election or
participating in a plebiscite in a foreign State; (6) Formal
renunciation of citizenship before an American foreign service officer
abroad; (7) Conviction and discharge from the armed services for
desertion in time of war; (8) Conviction of treason or an attempt at
forceful overthrow of the United States; (9) Formal renunciation of
citizenship within the United States in time of war, subject to approval
by the Attorney General; (10) Fleeing or remaining outside the United
States in time of war or proclaimed emergency in order to evade military
training; (11) Residence by a naturalized citizen, subject to certain
exceptions, for two to three years in the country of his birth or in
which he formerly was a national or for five years in any other foreign
State, and (12) Minor children, of naturalized citizens losing
citizenship by such foreign residence, also lose their United States
citizenship if they acquire the nationality of a foreign State; but not
until they attain the age of 25 without having acquired permanent
residence in the United States. 66 Stat. 163; Tit. III §§ 349-357.

[1068] Chinese Exclusion Case, 130 U.S. 581, 603, 604 (1889); _See also_
Fong Yue Ting _v._ United States, 149 U.S. 698, 705 (1893); Japanese
Immigrant Case, 189 U.S. 86 (1903); Turner _v._ Williams, 194 U.S. 279
(1904); Bugajewitz _v._ Adams, 228 U.S. 585 (1913); Hines _v._
Davidowitz, 312 U.S. 52 (1941).

[1069] 66 Stat. 163; Tit. II, § 212.

[1070] Ibid. § 212 (a) (28) (F).

[1071] 54 Stat. 670.

[1072] Hines _v._ Davidowitz, 312 U.S. 52, 69-70.

[1073] 66 Stat. 163; Tit. II, §§ 261-266.

[1074] 338 U.S. 537 (1950).

[1075] 59 Stat. 659.

[1076] 338 U.S. at 543.

[1077] Carlson _v._ Landon, 342 U.S. 524 (1952).

[1078] 54 Stat. 670.

[1079] Harisiades _v._ Shaughnessy, 342 U.S. 580, 587 (1952).

[1080] 8 U.S.C, § 156 C was the provision in question.

[1081] United States _v._ Spector, 343 U.S. 169 (1952).

[1082] Keller _v._ United States, 213 U.S. 138 (1909).

[1083] Ibid. 149-150. For the requirements of due process of law in the
deportation of alien, _see_ p. 852 (Amendment V).

[1084] Adams _v._ Storey, 1 Fed. Cas. No. 66 (1817).

[1085] 2 Stat. 19 (1800).

[1086] Story's Commentaries, II, 1113 (Cooley's ed. 1873).

[1087] 186 U.S. 181 (1902).

[1088] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. &
P.R. Co., 294 U.S. 648, 670 (1935).

[1089] United States _v._ Bekins, 304 U.S. 27 (1938), distinguishing
Ashton _v._ Cameron County Water Improv. Dist., 298 U.S. 513 (1936).

[1090] In re Reiman, Fed. Cas. No. 11,673 (1874), cited with approval in
Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R.
Co., 294 U.S. 648, 672 (1935).

[1091] Continental Illinois Nat. Bank & Trust Co. _v._ Chicago, R.I. &
P.R. Co., 294 U.S. 648 (1935).

[1092] Wright _v._ Mountain Trust Bank, 300 U.S. 440 (1937); Adair _v._
Bank of America Assn., 303 U.S. 350 (1938).

[1093] Wright _v._ Union Central Insurance Co., 304 U.S. 502 (1938).

[1094] 294 U.S. 648 (1935).

[1095] Ibid. 671.

[1096] Louisville Joint Stock Land Bank _v._ Radford, 295 U.S. 555, 589,
602 (1935).

[1097] Ashton _v._ Cameron County Water Improvement District, 298 U.S.
513 (1936). _But see_ United States _v._ Bekins, 304 U.S. 27 (1938).

[1098] Chicago Title & Trust Co. _v._ 4136 Wilcox Bldg. Corp., 302 U.S.
120 (1937).

[1099] Re Klein, 1 How. 277 (1843); Hanover Nat. Bank _v._ Moyses, 186
U.S. 181 (1902).

[1100] United States _v._ Bekins, 304 U.S. 27 (1938).

[1101] Stellwagen _v._ Clum, 245 U.S. 605 (1918); Hanover Nat. Bank _v._
Moyses, 186 U.S. 181, 190 (1902).

[1102] Hanover Nat. Bank _v._ Moyses, 186 U.S. 181, 184 (1902).

[1103] Sturges _v._ Crowninshield, 4 Wheat. 122, 199 (1819); Ogden _v._
Saunders, 12 Wheat. 212, 368 (1827).

[1104] Tua _v._ Carriere, 117 U.S. 201 (1886); Butler _v._ Goreley, 146
U.S. 303, 314 (1892).

[1105] Sturges _v._ Crowninshield, 4 Wheat. 122 (1819).

[1106] Ogden _v._ Saunders, 12 Wheat. 212, 358 (1827); Denny _v._
Bennett, 128 U.S. 489, 498 (1888); Brown _v._ Smart, 145 U.S. 454
(1892).

[1107] Re Watts, 190 U.S. 1, 27 (1903); International Shoe Co. _v._
Pinkus, 278 U.S. 261, 264 (1929).

[1108] International Shoe Co. _v._ Pinkus, 278 U.S. 261, 265 (1929).

[1109] Kalb _v._ Feuerstein, 308 U.S. 433 (1940).

[1110] Stellwagen _v._ Clum, 245 U.S. 605, 615 (1918).

[1111] Reitz _v._ Mealey, 314 U.S. 33 (1941).

[1112] New York _v._ Irving Trust Co., 288 U.S. 329 (1933).

[1113] McCulloch _v._ Maryland, 4 Wheat. 316 (1819).

[1114] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[1115] Ibid. 548.

[1116] Merchants Nat. Bank _v._ United States, 101 U.S. 1 (1880).

[1117] Nortz _v._ United States, 294 U.S. 317 (1935).

[1118] Legal Tender Cases, 12 Wall. 457, 549 (1871); Juilliard _v._
Greenman, 110 U.S. 421, 449 (1884).

[1119] Legal Tender Cases, 12 Wall. 457 (1871).

[1120] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240 (1935).

[1121] Ling Su Fan _v._ United States, 218 U.S. 302 (1910).

[1122] United States _v._ Marigold, 9 How. 560, 568 (1850).

[1123] Fox _v._ Ohio, 5 How. 410 (1847).

[1124] United States _v._ Marigold, 9 How. 560, 568 (1850).

[1125] Ibid.

[1126] Baender _v._ Barnett, 255 U.S. 224 (1921).

[1127] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 536 (1871).

[1128] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819); Osborn _v._
Bank of United States, 9 Wheat. 738, 861 (1824); Farmers' & Mechanics'
Nat. Bank _v._ Dearing, 91 U.S.C. 29, 33 (1875); Smith _v._ Kansas City
Title & Trust Co., 255 U.S. 180, 208 (1921).

[1129] Legal Tender Cases, 12 Wall. 457, 540-547 (1871).

[1130] Perry _v._ United States, 294 U.S. 330, 353 (1935).

[1131] Ibid. 361.

[1132] United States _v._ Railroad Bridge Co., Fed. Cas. No. 16,114
(1855).

[1133] Searight _v._ Stokes, 3 How. 151, 166 (1845).

[1134] 91 U.S. 367 (1876).

[1135] Ex parte Jackson, 96 U.S. 727, 732 (1878).

[1136] Searight _v._ Stokes, 3 How. 151, 169 (1845).

[1137] Re Debs, 158 U.S. 564, 599 (1895).

[1138] 2 Cong. Globe 4, 10 (1835).

[1139] Ibid. 298. On this point his reasoning would appear to be
vindicated by such decisions, as Bowman _v._ Chicago & N.W.R. Co., 125
U.S. 465 (1888) and Leisy _v._ Hardin, 135 U.S. 100 (1890) denying the
right of the States to prevent the importation of alcoholic beverages
from other States.

[1140] 96 U.S. 727 (1878).

[1141] Ibid. 732.

[1142] Public Clearing House _v._ Coyne, 194 U.S. 497 (1904), followed
in Donaldson _v._ Read Magazine, 333 U.S. 178 (1948).

[1143] 194 U.S. at 506.

[1144] Lewis Publishing Co. _v._ Morgan, 229 U.S. 288, 316 (1913).

[1145] 255 U.S. 407 (1921).

[1146] Hannegan _v._ Esquire, Inc., 327 U.S. 146, 155 (1946).

[1147] 49 Stat. 803, 812, 813 (1935), 15 U.S.C. 79d, 79e (1946).

[1148] Electric Bond & Share Co. _v._ Securities and Exchange Comm'n.,
303 U.S. 419 (1938).

[1149] Ibid. 442.

[1150] Pensacola Teleg. Co. _v._ Western U. Teleg. Co., 90 U.S. 1
(1878).

[1151] Illinois C.R. Co. _v._ Illinois ex rel. Butler, 163 U.S. 142
(1896).

[1152] Gladson _v._ Minnesota, 166 U.S. 427 (1897).

[1153] Price _v._ Pennsylvania R. Co., 113 U.S. 218 (1885); Martin _v._
Pittsburgh & L.E.R. Co., 203 U.S. 284 (1906).

[1154] Railway Mail Assn. _v._ Corsi, 326 U.S. 88 (1945).

[1155] United States _v._ Kirby, 7 Wall. 482 (1869).

[1156] Johnson _v._ Maryland, 254 U.S. 51 (1920).

[1157] Pennock _v._ Dialogue, 2 Pet. 1, 17, 18 (1829).

[1158] Wheaton _v._ Peters, 8 Pet. 591, 656, 658 (1834).

[1159] Kendall _v._ Winsor, 21 How. 322, 328 (1859); Great Atlantic &
Pacific Tea Co. _v._ Supermarket Equipment Corp., 340 U.S. 147 (1950).

[1160] Evans _v._ Jordan, 9 Cr. 199 (1815); Bloomer _v._ McQuewan, 14
How. 539, 548 (1852); Bloomer _v._ Millinger, 1 Wall. 340, 350 (1864);
Eunson _v._ Dodge, 18 Wall. 414, 416 (1873).

[1161] Brown _v._ Duchesne, 19 How. 183, 195 (1857).

[1162] Seymour _v._ Osborne, 11 Wall. 516, 549 (1871). _Cf._ Union Paper
Collar Co. _v._ Van Dusen, 23 Wall. 530, 563 (1875); Reckendorfer _v._
Faber, 92 U.S. 347, 356 (1876).

[1163] Smith _v._ Nichols, 21 Wall. 112, 118 (1875).

[1164] Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498, 507 (1874);
Clark Thread Co. _v._ Willimantic Linen Co., 140 U.S. 481, 489 (1891).

[1165] Funk Bros. Seed Co. _v._ Kalo Co., 333 U.S. 127, 130 (1948).
_Cf._ Dow Chemical Co. _v._ Halliburton Co., 324 U.S. 320 (1945); Cuno
Corp. _v._ Automatic Devices Corp., 314 U.S. 84, 89 (1941).

[1166] Sinclair & Carroll Co. _v._ Interchemical Corp., 325 U.S. 327
(1945); Marconi Wireless Teleg. Co. _v._ United States, 320 U.S. 1
(1943).

[1167] Keystone Mfg. Co. _v._ Adams, 151 U.S. 139 (1894); Diamond Rubber
Co. _v._ Consolidated Tire Co., 220 U.S. 428 (1911).

[1168] Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment
Corp., 340 U.S. 147 (1950). An interesting concurring opinion was filed
by Justice Douglas for himself and Justice Black: "It is not enough,"
says Justice Douglas, "that an article is new and useful. The
Constitution never sanctioned the patenting of gadgets. Patents serve a
higher end--the advancement of science. An invention need not be as
startling as an atomic bomb to be patentable. But it has to be of such
quality and distinction that masters of the scientific field in which it
falls will recognize it as an advance." Ibid. 154-155. He then quotes
the following from an opinion of Justice Bradley's given 70 years ago:

"It was never the object of those laws to grant a monopoly for every
trifling device, every shadow of a shade of an idea, which would
naturally and spontaneously occur to any skilled mechanic or operator in
the ordinary progress of manufactures. Such an indiscriminate creation
of exclusive privileges tends rather to obstruct than to stimulate
invention. It creates a class of speculative schemers who make it their
business to watch the advancing wave of improvement, and gather its foam
in the form of patented monopolies, which enable them to lay a heavy tax
upon the industry of the country, without contributing anything to the
real advancement of the arts. It embarrasses the honest pursuit of
business with fears and apprehensions of concealed liens and unknown
liabilities to lawsuits and vexatious accountings for profits made in
good faith. (Atlantic Works _v._ Brady, 107 U.S. 192, 200 (1882))."
Ibid. 155.

The opinion concludes: "The attempts through the years to get a broader,
looser conception of patents than the Constitution contemplates have
been persistent. The Patent Office, like most administrative agencies,
has looked with favor on the opportunity which the exercise of
discretion affords to expand its own jurisdiction. And so it has placed
a host of gadgets under the armour of patents--gadgets that obviously
have had no place in the constitutional scheme of advancing scientific
knowledge. A few that have reached this Court show the pressure to
extend monopoly to the simplest of devices:

"Hotchkiss _v._ Greenwood, 11 How. 248 (1850): Doorknob made of clay
rather than metal or wood, where different shaped doorknobs had
previously been made of clay.

"Rubber-Tip Pencil Co. _v._ Howard, 20 Wall. 498 (1874): Rubber caps put
on wood pencils to serve as erasers.

"Union Paper Collar Co. _v._ Van Dusen, 23 Wall. 530 (1875): Making
collars of parchment paper where linen paper and linen had previously
been used.

"Brown _v._ Piper, 91 U.S. 37 (1875): A method for preserving fish by
freezing them in a container operating in the same manner as an ice
cream freezer.

"Reckendorfer _v._ Faber, 92 U.S. 347 (1876): Inserting a piece of
rubber in a slot in the end of a wood pencil to serve as an eraser.

"Dalton _v._ Jennings, 93 U.S. 271 (1876): Fine thread placed across
open squares in a regular hairnet to keep hair in place more
effectively.

"Double-Pointed Tack Co. _v._ Two Rivers Mfg. Co., 109 U.S. 117 (1883):
Putting a metal washer on a wire staple.

"Miller _v._ Foree, 116 U.S. 22 (1885): A stamp for impressing initials
in the side of a plug of tobacco.

"Preston _v._ Manard, 116 U.S. 661 (1886): A hose reel of large diameter
so that water may flow through hose while it is wound on the reel.

"Hendy _v._ Miners' Iron Works, 127 U.S. 370 (1888): Putting rollers on
a machine to make it moveable.

"St. Germain _v._ Brunswick, 135 U.S. 227 (1890): Revolving cue rack.

"Shenfield _v._ Nashawannuck Mfg. Co., 137 U.S. 56 (1890): Using flat
cord instead of round cord for the loop at the end of suspenders.

"Florsheim _v._ Schilling, 137 U.S. 64 (1890): Putting elastic gussets
in corsets.

"Cluett _v._ Claflin, 140 U.S. 180 (1891): A shirt bosom or dickie sewn
onto the front of a shirt.

"Adams _v._ Bellaire Stamping Co., 141 U.S. 539 (1891): A lantern lid
fastened to the lantern by a hinge on one side and a catch on the other.

"Patent Clothing Co. _v._ Glover, 141 U.S. 560 (1891): Bridging a strip
of cloth across the fly of pantaloons to reinforce them against tearing.

"Pope Mfg. Co. _v._ Gormully Mfg. Co., 144 U.S. 238 (1892): Placing
rubber hand grips on bicycle handlebars.

"Knapp _v._ Morss, 150 U.S. 221 (1893): Applying the principle of the
umbrella to a skirt form.

"Morgan Envelope Co. _v._ Albany Perforated Wrapping Paper Co., 152 U.S.
425 (1894): An oval rather than cylindrical toilet paper roll, to
facilitate tearing off strips.

"Dunham _v._ Dennison Mfg. Co., 154 U.S. 103 (1894): An envelope flap
which could be fastened to the envelope in such a fashion that the
envelope could be opened without tearing.

"The patent involved in the present case belongs to this list of
incredible patents which the Patent Office has spawned. The fact that a
patent as flimsy and as spurious as this one has to be brought all the
way to this Court to be declared invalid dramatically illustrates how
far our patent system frequently departs from the constitutional
standards which are supposed to govern." Ibid. 156-158.

[1169] "Inventive genius"--Justice Hunt in Reckendorfer _v._ Faber, 92
U.S. 347, 357 (1875); "Genius or invention"--Chief Justice Fuller in
Smith _v._ Whitman Saddle Co., 148 U.S. 674, 681 (1893); "Intuitive
genius"--Justice Brown in Potts _v._ Creager, 155 U.S. 597, 607 (1895);
"Inventive genius"--Justice Stone in Concrete Appliances Co. _v._
Gomery, 269 U.S. 177, 185 (1925); "Inventive genius"--Justice Roberts in
Mantle Lamp Co. _v._ Aluminum Co., 301 U.S. 544, 546 (1937); Justice
Douglas in Cuno Corp. _v._ Automatic Devices Corp., 314 U.S. 84, 91
(1941); "the flash of creative genius, not merely the skill of the
calling." _See also_ Note 2 above. [Transcriber's Note: Reference is to
Footnote 1163, above.]

[1170] _See_ Note 7 above. [Transcriber's Note: Reference is to Footnote
1168, above.]

[1171] Great Atlantic & Pacific Tea Co. _v._ Supermarket Equipment
Corp., 340 U.S. 147 (1950); Mahn _v._ Harwood, 112 U.S. 354, 358 (1884).

[1172] Evans _v._ Eaton, 3 Wheat. 454, 512 (1818).

[1173] United States _v._ Duell, 172 U.S. 576, 586-589 (1899). _See
also_ Butterworth _v._ Hoe, 112 U.S. 50 (1884).

[1174] Wheaton _v._ Peters, 8 Pet. 591, 660 (1834); Holmes _v._ Hurst,
174 U.S. 82 (1899). _Cf._ E. Burke Inlow, The Patent Clause (1950)
Chaps. III and IV, for evidence of a judicial recognition of an
inventor's inchoate right to have his invention patented.

[1175] Wheaton _v._ Peters, 8 Pet. 591, 662 (1834); Evans _v._ Jordan, 9
Cr. 199 (1815).

[1176] Kalem Co. _v._ Harper Bros. 222 U.S. 55 (1911).

[1177] Baker _v._ Selden, 101 U.S. 99, 105 (1880).

[1178] Stevens _v._ Gladding, 17 How. 447 (1855).

[1179] Ager _v._ Murray, 105 U.S. 126 (1882).

[1180] James _v._ Campbell, 104 U.S. 356, 358 (1882). _See also_ United
States _v._ Burns, 12 Wall. 246, 252 (1871); Cammeyer _v._ Newton, 94
U.S. 225, 234 (1877); Hollister _v._ Benedict Manufacturing Co., 113
U.S. 59, 67 (1885); United States _v._ Palmer, 128 U.S. 262, 271 (1888);
Belknap _v._ Schild, 161 U.S. 10, 16 (1896).

[1181] McClurg _v._ Kingsland, 1 How. 202, 206 (1843).

[1182] Bloomer _v._ McQuewan, 14 How. 539, 553 (1852).

[1183] _See_ Motion Picture Co. _v._ Universal Film Co., 243 U.S. 502
(1917); Morton Salt Co. _v._ Suppiger Co., 314 U.S. 488 (1942); United
States _v._ Masonite Corp., 316 U.S. 265 (1942); and United States _v._
New Wrinkle, Inc., 342 U.S. 371 (1952), where the Justices divide 6 to 3
as to the significance for the case of certain leading precedents. _See
also_ Inlow, The Patent Clause, Chap. V.

[1184] Patterson _v._ Kentucky, 97 U.S. 501 (1879).

[1185] Allen _v._ Riley, 203 U.S. 347 (1906): Woods & Sons _v._ Carl,
203 U.S. 358 (1906); Ozan Lumber Co. _v._ Union County Bank, 207 U.S.
251 (1907).

[1186] Fox Film Corp. _v._ Doyal, 280 U.S. 123 (1932)--overruling Long
_v._ Rockwood, 277 U.S. 142 (1928).

[1187] 100 U.S. 82 (1879).

[1188] Ibid. 94.

[1189] Burrow-Giles Lithographic Co. _v._ Sarony, 111 U.S. 53 (1884).

[1190] Bleistein _v._ Donaldson Lithographing Co., 188 U.S. 239, 252
(1903).

[1191] Kent, Commentaries, 1-2, (12th ed. 1873).

[1192] XIX Journals of the Continental Congress 315, 361 (1912). XX Id.
762, XXI id. 1136-1137, 1158.

[1193] Article IX.

[1194] Madison, Journal of the Constitutional Convention, II, 82 (Hunt's
ed. 1908).

[1195] Ibid. 185-186, 372.

[1196] United States _v._ Smith, 5 Wheat. 153, 160, 162 (1820). _See
also_ The Marianna Flora, 11 Wheat. 1, 40-41 (1826); United States _v._
Brig Malek Abhel, 2 How. 210, 232 (1844).

[1197] 317 U.S. 1, 27 (1942).

[1198] Ibid. 28.

[1199] United States _v._ Arjona, 120 U.S. 479, 487, 488 (1887).

[1200] United States _v._ Flores, 3 F. Supp. 134 (1932).

[1201] 289 U.S. 137, 149-150 (1933).

[1202] United States _v._ Furlong, 5 Wheat. 184, 200 (1920).

[1203] The Federalist No. 23.

[1204] Penhallow _v._ Doane, 3 Dall. 54 (1795).

[1205] 4 Wheat. 316 (1819).

[1206] Ibid. 407. Emphasis supplied.

[1207] Ex parte Milligan, 4 Wall. 2, 139 (1866) (dissenting opinion);
_see also_ Miller _v._ United States, 11 Wall. 268, 305 (1871); and
United States _v._ Macintosh, 283 U.S. 605, 622 (1931).

[1208] 58 Cong. Globe, 37th Cong., 1st sess., App. 1 (1861).

[1209] Hamilton _v._ Dillin, 21 Wall. 73, 86 (1875).

[1210] Northern P.R. Co. _v._ North Dakota, 250 U.S. 135, 149 (1919).

[1211] Home Bldg. & Loan Assoc. _v._ Blaisdell, 290 U.S. 398 (1934).

[1212] Northern P.R. Co. _v._ North Dakota, 250 U.S. 135, 149 (1919).

[1213] 299 U.S. 304 (1936).

[1214] Ibid. 316, 318.

[1215] 334 U.S. 742 (1948).

[1216] Ibid. 757-758.

[1217] Ibid. 755.

[1218] II Madison Journal of the Constitutional Convention 82 (Hunt's
ed. 1908).

[1219] Ibid. 188.

[1220] 11 Annals of Congress 11 (1801).

[1221] Works of Alexander Hamilton, VII, 746 (Hamilton's ed. 1851).
_Cf._ Bas _v._ Tingy, 4 Dall. 37 (1800).

[1222] 2 Stat. 129, 130 (1802). Emphasis supplied.

[1223] The Prize Cases, 2 Bl. 635, 668 (1863).

[1224] Ibid. 683, 688.

[1225] 12 Wall. 700 (1872).

[1226] Ibid. 702.

[1227] I Blackstone, Commentaries 263, (Wendell's ed. 1857).

[1228] II Story, Commentaries, § 1187 (4th ed. 1873).

[1229] 25 Op. Atty. Gen. 105, 108 (1904).

[1230] 40 Op. Atty. Gen. 555 (1948).

[1231] 61 Stat. 405 (1947).

[1232] H.J. Res. 298, 80th Cong., 2d sess. (1948).

[1233] Selective Draft Law Cases, 245 U.S. 366, 380 (1918); Cox _v._
Wood, 247 U.S. 3 (1918).

[1234] 245 U.S. at 385.

[1235] Ibid. 386-388. The measure was upheld by a State court, Kneedler
_v._ Lane, 45 Pa. 238 (1863).

[1236] Selective Draft Law Cases, 245 U.S. 366, 381, 382 (1918)

[1237] Butler _v._ Perry, 240 U.S. 328, 333 (1916).

[1238] 245 U.S. 366 (1918).

[1239] Ibid. 390.

[1240] United States _v._ Williams, 302 U.S. 46 (1937). _See also_ In re
Grimley, 137 U.S. 147, 153 (1890); In re Morrissey, 137 U.S. 157 (1890).

[1241] Wissner _v._ Wissner, 338 U.S. 655, 660 (1950).

[1242] McKinley _v._ United States, 249 U.S. 397 (1919).

[1243] Dynes _v._ Hoover, 20 How. 65, 79 (1858).

[1244] Ex parte Milligan, 4 Wall. 2, 123, 138-139 (1866). Ex parte
Quirin, 317 U.S. 1, 40 (1942).

[1245] Wade _v._ Hunter, 336 U.S. 684, 687 (1949).

[1246] Dynes _v._ Hoover, 20 How. 65, 82 (1858).

[1247] Swaim _v._ United States, 165 U.S. 553 (1897); Carter _v._
Roberts, 177 U.S. 496 (1900); Hiatt _v._ Brown, 339 U.S. 103 (1950).

[1248] Mullan _v._ United States, 212 U.S. 516 (1909); Smith _v._
Whitney, 116 U.S. 167, 177 (1886); Hiatt _v._ Brown, 339 U.S. 103
(1950).

[1249] Clark, Emergency Legislation Passed Prior to December 1917, 211
(1918).

[1250] Ibid. 214

[1251] Ibid. 250, 332, 380, 438, 497.

[1252] Ibid. 420, 466, 535, 595, 636, 823. Many of these were soon
suspended or repealed. Ibid. 458, 553, 601, 733.

[1253] Ibid. 482, 543, 963, 969.

[1254] Ibid. 916.

[1255] Ibid. 280.

[1256] Hepburn _v._ Griswold, 8 Wall. 603, 617 (1870).

[1257] Ibid. 626.

[1258] Knox _v._ Lee (Legal Tender Cases), 12 Wall. 457, 540 (1871).

[1259] 40 Stat. 276 (1917).

[1260] Ibid. 272.

[1261] Ibid. 411.

[1262] Ibid. 451 (1918).

[1263] Ibid. 904.

[1264] 55 Stat. 236 (1941).

[1265] 56 Stat. 176 (1942).

[1266] Ibid. 23.

[1267] 57 Stat. 163 (1943).

[1268] Lichter _v._ United States, 334 U.S. 742, 754-756, 765, 766
(1948). _See also_ United States _v._ Bethlehem Steel Corp., 315 U.S.
289, 305 (1942); Clallam County _v._ United States, 263 U.S. 341 (1923);
Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549 (1922).

[1269] Lichter _v._ United States, 334 U.S. 742, 779 (1948).

[1270] 245 U.S. 366, 389 (1918).

[1271] Yakus _v._ United States, 321 U.S. 414, 424 (1944).

[1272] 21 Wall. 73 (1875).

[1273] Ibid. 96-97. _Cf._ United States _v._ Chemical Foundation, 272
U.S. 1 (1926).

[1274] 320 U.S. 81 (1943).

[1275] Ibid. 91-92, 104.

[1276] Ibid. 104.

[1277] 334 U.S. 742 (1948).

[1278] Ibid. 778-779.

[1279] Ibid. 782-783.

[1280] Story Commentaries on the Constitution, II, § 1185 (4th ed.,
1873).

[1281] 297 U.S. 288 (1936).

[1282] 39 Stat. 166 (1916).

[1283] 297 U.S. 288, 327-328 (1936).

[1284] 60 Stat. 755 (1946).

[1285] Stewart _v._ Kahn, 11 Wall. 493, 507 (1871). _See also_ Mayfield
_v._ Richards, 115 U.S. 137 (1885).

[1286] 251 U.S. 146, 163 (1919). _See also_ Ruppert _v._ Caffey, 251
U.S. 264 (1920).

[1287] Block _v._ Hirsh, 256 U.S. 135 (1921).

[1288] Chastleton Corp. _v._ Sinclair, 264 U.S. 543 (1924).

[1289] 333 U.S. 138 (1948). _See also_ Fleming _v._ Mohawk Wrecking &
Lumber Co., 331 U.S. 111 (1947).

[1290] 333 U.S. 138, 143-144 (1948).

[1291] Ludecke _v._ Watkins, 335 U.S. 160, 170 (1948).

[1292] 100 U.S. 158 (1880).

[1293] Ibid. 170.

[1294] 4 Wall. 2 (1866).

[1295] Ibid. 127.

[1296] Ibid. 132, 138.

[1297] 327 U.S. 304 (1946).

[1298] 8 Cr. 110 (1814). _See also_ Conrad _v._ Waples, 96 U.S. 279, 284
(1878).

[1299] Miller _v._ United States, 11 Wall. 268 (1871).

[1300] Stoehr _v._ Wallace, 255 U.S. 239 (1921); Central Union Trust Co.
_v._ Garvan, 254 U.S. 554 (1921); United States _v._ Chemical
Foundation, 272 U.S. 1 (1926); Silesian-American Corp. _v._ Clark, 332
U.S. 469 (1947); Cities Service Co. _v._ McGrath, 342 U.S. 330 (1952).

[1301] The "Siren," 13 Wall. 389 (1871).

[1302] The "Hampton," 5 Wall. 372, 376 (1867).

[1303] The "Paquete Habana," 175 U.S. 677, 700, 711 (1900).

[1304] Block _v._ Hirsh, 256 U.S. 135, 156, 157 (1921).

[1305] Bowles _v._ Willingham, 321 U.S. 503, 519 (1944).

[1306] Ibid. 521.

[1307] 255 U.S. 81 (1921).

[1308] Ibid. 89.

[1309] Schenck _v._ United States, 249 U.S. 47 (1919); Debs _v._ United
States, 249 U.S. 211 (1919); Sugarman _v._ United States, 249 U.S. 182
(1919); Frohwerk _v._ United States, 249 U.S. 204 (1919); Abrams _v._
United States, 250 U.S. 616 (1919).

[1310] 40 Stat. 217 (1917); amended by 40 Stat. 553 (1918).

[1311] 249 U.S. 47 (1919).

[1312] Ibid. 52.

[1313] Gilbert _v._ Minnesota, 254 U.S. 325 (1920).

[1314] Hirabayashi _v._ United States, 320 U.S. 81 (1943).

[1315] Korematsu _v._ United States, 323 U.S. 214 (1944).

[1316] Ex parte Endo, 323 U.S. 283 (1944).

[1317] 1 Stat. 577 (1798).

[1318] Writings of James Madison, VI, 360-361 (Hunt's ed., 1906).

[1319] 40 Stat. 531 (1918).

[1320] 335 U.S. 160 (1948).

[1321] Mitchell _v._ Harmony, 13 How. 115, 134 (1852).

[1322] 13 Wall. 623, 627 (1871).

[1323] 120 U.S. 227 (1887).

[1324] Ibid. 239.

[1325] H.R. Rep. No. 262, 43d Cong., 1st sess., 39-40 (1874).

[1326] United States _v._ Commodities Trading Corp., 339 U.S. 121
(1950); United States _v._ Toronto Nav. Co., 338 U.S. 396 (1949);
Kimball Laundry Co. _v._ United States, 338 U.S. 1 (1949); United States
_v._ Cors, 337 U.S. 325 (1949); United States _v._ John J. Felin & Co.,
334 U.S. 624 (1948); United States _v._ Petty Motor Co., 327 U.S. 372
(1946); United States _v._ General Motors Corp., 323 U.S. 373 (1945).

[1327] Moore _v._ Houston, 3 S. & R. (Pa.) 169 (1817), affirmed in
Houston _v._ Moore, 5 Wheat. 1 (1820).

[1328] Texas _v._ White, 7 Wall. 700 (1869); Tyler _v._ Defrees, 11
Wall. 331 (1871).

[1329] 1 Stat. 424 (1795).

[1330] Martin _v._ Mott, 12 Wheat. 19, 32 (1827).

[1331] Houston _v._ Moore, 5 Wheat. 1 (1820); Martin _v._ Mott, 12
Wheat. 19 (1827).

[1332] Houston _v._ Moore, 5 Wheat. 1, 16 (1820).

[1333] 39 Stat. 166, 197 (1916).--By the act of June 28, 1947 (61 Stat.
191, 192) the age of enlistment in the National Guard was lowered to 17
years.

[1334] United States _v._ Hammond, 1 Cr. C.C. 15 (1801).

[1335] 2 Stat. 103 (1801).

[1336] 2 Stat. 195 (1802).

[1337] 20 Stat. 102 (1878).

[1338] Metropolitan R. Co. _v._ District of Columbia, 132 U.S. 1, 9
(1889).

[1339] District of Columbia _v._ Bailey, 171 U.S. 161 (1898).

[1340] Shoemaker _v._ United States, 147 U.S. 282, 299 (1893).

[1341] Morris _v._ United States, 174 U.S. 196 (1899).

[1342] United States ex rel. Greathouse _v._ Dern, 289 U.S. 352, 354
(1933); Smoot Sand & Gravel Corp. _v._ Washington Airport, 283 U.S. 348
(1931); Maryland _v._ West Virginia, 217 U.S. 577 (1910); Marine R. &
Coal Co. _v._ United States, 257 U.S. 47 (1921); Morris _v._ United
States, 174 U.S. 196 (1899).

[1343] Phillips _v._ Payne, 92 U.S. 130 (1876).

[1344] 1 Stat. 139 (1790).

[1345] United States _v._ Simms, 1 Cr. 252, 256 (1803).

[1346] 2 Stat. 103, 104 (1801). _See_ Tayloe _v._ Thomson, 5 Pet. 358,
368 (1831); Ex parte Watkins, 7 Pet. 568 (1833); Stelle _v._ Carroll, 12
Pet. 201, 205 (1838); Van Ness _v._ Bank of United States, 13 Pet. 17
(1839); United States _v._ Eliason, 16 Pet. 291, 301 (1842).

[1347] Reily _v._ Lamar, 2 Cr. 344, 356 (1805).

[1348] Korn _v._ Mutual Assur. Soc., 6 Cr. 192, 199 (1810).

[1349] Mutual Assur. Soc. _v._ Watts, 1 Wheat. 279 (1816).

[1350] Hepburn _v._ Ellzey, 2 Cr. 445, 452 (1805); _see also_ Serè _v._
Pitot, 6 Cr. 332, 336 (1810); New Orleans _v._ Winter, 1 Wheat. 91, 94
(1816). The District has been held to be a "State" within the terms of a
treaty regulating the inheritance of property within the "States of the
Union." De Geofroy _v._ Riggs, 133 U.S. 258 (1890).

[1351] Barney _v._ Baltimore, 6 Wall. 280 (1868); Hooe _v._ Jamieson,
166 U.S. 395 (1897); Hooe _v._ Werner, 166 U.S. 399 (1897).

[1352] National Mut. Ins. Co. _v._ Tidewater Transfer Co., Inc., 337
U.S. 582 (1949).

[1353] Ibid. 588-600 (opinion of Justice Jackson, with whom Justices
Black and Burton concurred).

[1354] Ibid. 604 (opinion of Justice Rutledge, with whom Justice Murphy
concurred).

[1355] Callan _v._ Wilson, 127 U.S. 540 (1888); Capital Traction Co.
_v._ Hof, 174 U.S. 1 (1899).

[1356] United States _v._ Moreland, 258 U.S. 433 (1922).

[1357] Wight _v._ Davidson, 181 U.S. 371, 384 (1901); _Cf._ Adkins _v._
Children's Hospital, 261 U.S. 525 (1923) overruled by West Coast Hotel
Co. _v._ Parrish, 300 U.S. 379 (1937).

[1358] Kendall _v._ United States ex rel. Stokes, 12 Pet. 524, 619
(1838); Shoemaker _v._ United States, 147 U.S. 282, 300 (1893); Atlantic
Cleaners & Dyers _v._ United States, 286 U.S. 427, 435 (1932);
O'Donoghue _v._ United States 289 U.S. 516, 518 (1933).

[1359] 6 Wheat. 264 (1821).

[1360] Ibid. 428.

[1361] Loughborough _v._ Blake, 5 Wheat. 317 (1820).

[1362] Gibbons _v._ District of Columbia, 116 U.S. 404, 408 (1886);
Welch _v._ Cook, 97 U.S. 541 (1879).

[1363] Loughborough _v._ Blake, 5 Wheat. 317, 320 (1820); Heald _v._
District of Columbia, 259 U.S. 114 (1922).

[1364] Thompson _v._ Roe ex dem. Carroll, 22 How. 422, 435 (1860);
Stoutenburgh _v._ Hennick, 129 U.S. 141, 147 (1889).

[1365] Willard _v._ Presbury, 14 Wall. 676, 680 (1870); Briscoe _v._
Rudolph, 221 U.S. 547 (1911).

[1366] Washington Market Co. _v._ District of Columbia, 172 U.S. 361,
367 (1899).

[1367] Mattingly _v._ District of Columbia, 97 U.S. 687, 690 (1878).

[1368] 129 U.S. 141, 148 (1889).

[1369] Keller _v._ Potomac Electric Power Co., 261 U.S. 428 (1923).

[1370] O'Donoghue _v._ United States, 289 U.S. 516 (1933).

[1371] Embry _v._ Palmer, 107 U.S. 3 (1883).

[1372] James _v._ Dravo Contracting Co., 302 U.S. 134, 143 (1937).

[1373] Battle _v._ United States, 209 U.S. 36 (1908).

[1374] Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929).

[1375] James _v._ Dravo Contracting Co, 302 U.S. 134, 143 (1937).

[1376] Collins _v._ Yosemite Park Co., 304 U.S. 518, 530 (1938).

[1377] Ibid. 528.

[1378] Battle _v._ United States, 209 U.S. 36 (1908); Johnson _v._
Yellow Cab Co., 321 U.S. 383 (1944); Bowen _v._ Johnston, 306 U.S. 19
(1939).

[1379] Surplus Trading Co. _v._ Cook, 281 U.S. 647 (1930).

[1380] Western Union Teleg. Co. _v._ Chiles, 214 U.S. 274 (1909);
Arlington Hotel Co. _v._ Fant, 278 U.S. 439 (1929); Pacific Coast Dairy
_v._ Dept. of Agri., 318 U.S. 285 (1943).

[1381] Chicago, R.I. & P.R. Co. _v._ McGlinn, 114 U.S. 542, 545 (1885);
James Stewart & Co. _v._ Sadrakula, 309 U.S. 94 (1940).

[1382] Palmer _v._ Barrett, 162 U.S. 399 (1896).

[1383] United States _v._ Unzeuta, 281 U.S. 138 (1930).

[1384] Benson _v._ United States, 146 U.S. 325, 331 (1892).

[1385] Palmer _v._ Barrett, 162 U.S. 399 (1896).

[1386] S.R.A., Inc. _v._ Minnesota, 327 U.S. 558, 564 (1946).

[1387] Ibid. 570, 571.

[1388] Fort Leavenworth R. Co. _v._ Lowe, 114 U.S. 525, 532 (1885);
United States _v._ Unzeuta, 281 U.S. 138, 142 (1930); Surplus Trading
Co. _v._ Cook, 281 U.S. 647, 652 (1930).

[1389] United States _v._ Cornell, 25 Fed. Cas. No. 14,867 (1819).

[1390] James _v._ Dravo Contracting Co., 302 U.S. 134, 145 (1937).

[1391] Silas Mason Co. _v._ Tax Commission of Washington, 302 U.S. 186
(1937). _See also_ Atkinson _v._ State Tax Commission, 303 U.S. 20
(1938).

[1392] 4 Wheat. 316 (1819).

[1393] Ibid. 420. This decision had been clearly foreshadowed fourteen
years earlier by Marshall's opinion in United States _v._ Fisher, 2 Cr.
358, 396 (1805). Upholding an act which gave priority to claims of the
United States against the estate of a bankrupt he wrote: "The government
is to pay the debt of the Union, and must be authorized to use the means
which appear to 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."

[1394] _See_ pp. 74-82, _supra_.

[1395] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). _See also_ Missouri
_v._ Holland, 252 U.S. 416 (1920).

[1396] _See_ p. 426, _supra_.

[1397] Den ex dem. Murray _v._ Hoboken Land & Improvement Co., 18 How.
272, 281 (1856).

[1398] Kohl _v._ United States, 91 U.S. 367, 373 (1876); United Slates
_v._ Fox, 94 U.S. 315, 320 (1877).

[1399] _See_ pp. 110-117, 266-267.

[1400] United States _v._ Fox, 95 U.S. 670, 672 (1878); United States
_v._ Hall, 98 U.S. 343, 357 (1879); United States _v._ Worrall, 2 Dall.
384, 394 (1790); McCulloch _v._ Maryland, 4 Wheat. 316 (1819). That this
power has been freely exercised is attested by the 180 pages of the
United States Code (1950 ed.) devoted to Title 18, entitled "Criminal
Code and Criminal Procedure." In addition numerous regulatory measures
prescribe criminal penalties for infractions thereof.

[1401] Ex parte Carll, 106 U.S. 521 (1883).

[1402] United States _v._ Marigold, 9 How. 560, 567 (1850).

[1403] Logan _v._ United States, 144 U.S. 263 (1892).

[1404] United States _v._ Barnow, 239 U.S. 74 (1915).

[1405] Ex parte Yarbrough, 110 U.S. 651 (1884); United States _v._
Waddell, 112 U.S. 76 (1884); In re Quarles, 158 U.S. 532, 537 (1895);
Motes _v._ United States, 178 U.S. 458 (1900); United States _v._
Mosley, 238 U.S. 383 (1915). _See also_ Rakes _v._ United States, 212
U.S. 55 (1909).

[1406] Ex parte Curtis, 106 U.S. 371 (1882).

[1407] The Alien Registration Act of 1940, 54 Stat. 670, 18 U.S.C.A. §
2385.

[1408] McCulloch _v._ Maryland, 4 Wheat. 316, 407 (1819).

[1409] Osborn _v._ Bank of the United States, 9 Wheat. 738, 862 (1824).
_See also_ Pittman _v._ Home Owners' Loan Corp., 308 U.S. 21 (1939).

[1410] First Nat. Bank _v._ Fellows ex rel. Union Trust Co., 244 U.S.
416 (1917); Burnes Nat. Bank _v._ Duncan, 265 U.S. 17 (1924).

[1411] Smith _v._ Kansas City Title and Trust Co., 255 U.S. 180 (1921).

[1412] Juilliard _v._ Greenman, 110 U.S. 421, 449 (1884).

[1413] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[1414] Juilliard _v._ Greenman, 110 U.S. 421 (1884). _See also_ Legal
Tender Cases, 12 Wall. 457 (1871).

[1415] Norman _v._ Baltimore & O.R. Co., 294 U.S. 240, 303 (1935).

[1416] Pacific Railroad Removal Cases (Union P.R. Co. _v._ Myers), 115
U.S. 1, 18 (1885); California _v._ Central P.R. Co., 127 U.S. 1, 39
(1888).

[1417] Luxton _v._ North River Bridge Co., 153 U.S. 525 (1894).

[1418] Clallam County _v._ United States, 263 U.S. 341 (1923).

[1419] Sloan Shipyards _v._ United States Fleet Corp., 258 U.S. 549
(1922). In 1944, the Congressional Joint Committee on Nonessential
Federal Expenditures reported that there were then in existence one
hundred government corporations, including subsidiaries and
quasi-private corporations in which the Government had some special
contractual or proprietary interest. S. Doc. No. 227, 78th Cong., 2d
sess. 2 (1944).

[1420] Rhode Island _v._ Massachusetts, 12 Pet. 657, 721 (1838).

[1421] Tennessee _v._ Davis, 100 U.S. 257, 263 (1880).

[1422] Chicago & Northwestern R. Co. _v._ Whitton, 13 Wall. 270, 287
(1872).

[1423] Embry _v._ Palmer, 107 U.S. 3 (1883).

[1424] Bank of United States _v._ Halstead, 10 Wheat. 51, 53 (1825).

[1425] United States Exp. Co. _v._ Kountze Bros., 8 Wall. 342, 350
(1860).

[1426] Ex parte Bakelite Corp., 279 U.S. 438, 449 (1929).

[1427] 43 Stat. 5 (1924). _See_ Sinclair _v._ United States, 279 U.S.
263 (1929).

[1428] Paramino Lumber Co. _v._ Marshall, 309 U.S. 370 (1940).

[1429] Pope _v._ United States, 323 U.S. 1 (1944).

[1430] Detroit Trust Company _v._ The "Thomas Barium," 293 U.S. 21
(1934).

[1431] Knickerbocker Ice Co. _v._ Stewart, 253 U.S. 149 (1920);
Washington _v._ Dawson & Co., 264 U.S. 219 (1924).

[1432] Barron _v._ Baltimore, 7 Pet. 243 (1833); Morgan's L. & T.R. &
S.S. Co. _v._ Louisiana Board of Health, 118 U.S. 455, 467 (1886).

[1433] Munn _v._ Illinois, 94 U.S. 113, 135 (1877); Johnson _v._ Chicago
& P. Elevator Co., 119 U.S. 388, 400 (1886).

[1434] 19 How. 393, 411 (1857).

[1435] Gasquet _v._ Lapeyre, 242 U.S. 367 (1917).

[1436] 1 Stat. 73, 81 (1789).

[1437] Ex parte Watkins, 3 Pet. 193, 202 (1830).

[1438] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1439] Price _v._ Johnston, 334 U.S. 266, 282 (1948).

[1440] United States _v._ Smith, 331 U.S. 469, 475 (1947).

[1441] Gusik _v._ Schilder, 339 U.S. 977 (1950).

[1442] Frank _v._ Mangum, 237 U.S. 309, 330 (1915).

[1443] 1 Stat. 73, 81 (1789).

[1444] Ex parte Watkins, 3 Pet. 193, 202 (1830); Ex parte Kearney, 7
Wheat. 38 (1822).

[1445] 14 Stat. 385 (1867).

[1446] Frank _v._ Mangum, 237 U.S. 309, 331 (1915).

[1447] Ex parte Bollman, 4 Cr. 75 (1807).

[1448] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274
(1942); Glasgow _v._ Moyer, 225 U.S. 420, 428 (1912); Matter of Gregory,
219 U.S. 210, 213 (1911).

[1449] Adams _v._ United States ex rel. McCann, 317 U.S. 269, 274
(1942).

[1450] Walker _v._ Johnston, 312 U.S. 275 (1941); Waley _v._ Johnston,
316 U.S. 101 (1942).

[1451] Ex parte Milligan, 4 Wall. 2, 110 (1866).

[1452] McNally _v._ Hill, 293 U.S. 131 (1934).

[1453] Goto _v._ Lane, 265 U.S. 393 (1924).

[1454] Salinger _v._ Loisel, 265 U.S. 224 (1924).

[1455] Wong Doo _v._ United States, 265 U.S. 239 (1924).

[1456] Price _v._ Johnston, 334 U.S. 266, 294 (1948).

[1457] Corwin, The President, Office and Powers, 178 (3d ed., 1948).

[1458] Ex parte Bollman, 4 Cr. 75, 101 (1807).

[1459] Messages and Papers of the Presidents, VII, 3219 (1897).

[1460] Fed. Cas. No. 9, 487 (1861).

[1461] 10 Op. Atty. Gen. 74, 89 (1861-1863).

[1462] 12 Stat. 755 (1863).

[1463] 4 Wall. 2 (1866).

[1464] Ibid. 114.

[1465] Story, Commentaries on the Constitution, II, § 1344 (4th ed.,
1873).

[1466] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867).

[1467] United States _v._ Lovett, 328 U.S. 303, 315 (1946).

[1468] Ex parte Garland, 4 Wall. 333, 377 (1867).

[1469] United States _v._ Lovett, 328 U.S. 303 (1946).

[1470] Story, Commentaries on the Constitution, II, § 1345.

[1471] 3 Dall. 386, 393 (1798).

[1472] Bankers Trust Co. _v._ Blodgett, 260 U.S. 647, 652 (1923).

[1473] Burgess _v._ Salmon, 97 U.S. 381 (1878).

[1474] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Ex parte Garland, 4
Wall. 333, 377 (1867); Burgess _v._ Salmon, 97 U.S. 381, 384 (1878).

[1475] United States _v._ Powers, 307 U.S. 214 (1939).

[1476] Neely _v._ Henkel, 180 U.S. 109, 123 (1901). _Cf._ In re
Yamashita, 327 U.S. 1, 26 (1946) (dissenting opinion of Justice Murphy);
Hirota _v._ MacArthur, 338 U.S. 197, 199 (1948) (concurring opinion of
Justice Douglas).

[1477] Ex parte Garland, 4 Wall. 333 (1867).

[1478] Murphy _v._ Ramsey, 114 U.S. 15 (1885).

[1479] Mahler _v._ Eby, 264 U.S. 32 (1924); Bugajewitz _v._ Adams, 228
U.S. 585 (1913).

[1480] Johannessen _v._ United States, 225 U.S. 227 (1912).

[1481] Cook _v._ United States, 138 U.S. 157, 183 (1891).

[1482] Calder _v._ Bull, 3 Dall. 386, 390 (1798).

[1483] Hopt _v._ Utah, 110 U.S. 574, 589 (1884).

[1484] 157 U.S. 429, 573 (1895).

[1485] 2 Madison, The Constitutional Convention, 208 (Hunt's ed., 1908).

[1486] 3 Dall. 171 (1796).

[1487] 7 Hamilton's Works, 845, 848 (Hamilton's ed., 1851). "If the
meaning of the word _excise_ is to be sought in the British statutes, it
will be found to include the duty on carriages, which is there
considered as an _excise_, and then must necessarily be uniform and
liable to apportionment; consequently, not a direct tax." Ibid.

[1488] 4 Annals of Congress, 730 (1794); 2 Madison's Writings, 14,
(Library of Congress ed., 1865) (Letter to Thomas Jefferson, May 11,
1794).

[1489] 3 Dall. 171, 177 (1796).

[1490] Pacific Ins. Co. _v._ Soule, 7 Wall. 433 (1869).

[1491] Veazie Bank _v._ Fenno, 8 Wall. 533 (1869).

[1492] Scholey _v._ Rew, 23 Wall. 331 (1875).

[1493] Springer _v._ United States, 102 U.S. 586 (1881).

[1494] Ibid. 602.

[1495] 157 U.S. 429 (1895); 158 U.S. 601 (1895).

[1496] 28 Stat. 509 (1894).

[1497] Stanton _v._ Baltic Mining Co., 240 U.S. 103 (1916); Knowlton
_v._ Moore, 178 U.S. 41, 80 (1900).

[1498] Nicol _v._ Ames, 173 U.S. 509 (1899).

[1499] Knowlton _v._ Moore, 178 U.S. 41 (1900).

[1500] Patton _v._ Brady, 184 U.S. 608 (1902).

[1501] 192 U.S. 363 (1904).

[1502] Ibid. 370.

[1503] 192 U.S. 397 (1904).

[1504] 220 U.S. 107 (1911).

[1505] 240 U.S. 103 (1916).

[1506] Ibid. 114.

[1507] 232 U.S. 261 (1914).

[1508] New York Trust Co. _v._ Eisner, 256 U.S. 345, 349 (1921).

[1509] Phillips _v._ Dime Trust & Safe Deposit Co., 284 U.S. 160 (1931).

[1510] Tyler _v._ United States, 281 U.S. 497 (1930).

[1511] Fernandez _v._ Wiener, 326 U.S. 340 (1945).

[1512] Chase National Bank _v._ United States, 278 U.S. 327 (1929).

[1513] Bromley _v._ McCaughn, 280 U.S. 124, 136 (1929). _See also_
Helvering _v._ Bullard, 303 U.S. 297 (1938).

[1514] Bromley _v._ McCaughn, 280 U.S. 124, 140 (1929).

[1515] Loughborough _v._ Blake, 5 Wheat. 317 (1820).

[1516] De Treville _v._ Smalls, 98 U.S. 517, 527 (1879).

[1517] Turpin & Bro. _v._ Burgess, 117 U.S. 504, 507 (1886). _Cf._ Almy
_v._ California, 24 How. 169, 174 (1861).

[1518] Dooley _v._ United States, 183 U.S. 151, 154 (1901).

[1519] Cornell _v._ Coyne, 192 U.S. 418, 428 (1904); Turpin & Bro. _v._
Burgess, 117 U.S. 504, 507 (1886).

[1520] Spalding & Bros. _v._ Edwards, 262 U.S. 66 (1923).

[1521] Thompson _v._ United States, 142 U.S. 471 (1892).

[1522] Peck & Co. _v._ Lowe, 247 U.S. 165 (1918); National Paper & Type
Co. _v._ Bowers, 266 U.S. 373 (1924).

[1523] Fairbank _v._ United States, 181 U.S. 283 (1901).

[1524] United States _v._ Hvoslef, 237 U.S. 1 (1915).

[1525] Thames & Mersey Ins. Co. _v._ United States, 237 U.S. 19 (1915).

[1526] Pace _v._ Burgess, 92 U.S. 372 (1876); Turpin & Bro. _v._
Burgess, 117 U.S. 504, 505 (1886).

[1527] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284
U.S. 125, 131 (1931); Pennsylvania _v._ Wheeling & Belmont Bridge Co.,
18 How. 421, 433 (1856); South Carolina _v._ Georgia, 93 U.S. 4 (1876).
In Williams _v._ United States, 255 U.S. 336 (1921) the argument that an
act of Congress which prohibited interstate transportation of liquor
into States whose laws prohibited manufacture or sale of liquor for
beverage purposes was repugnant to this clause was rejected as plainly
wanting in merit.

[1528] Louisiana Public Service Comm'n. _v._ Texas & N.O.R. Co., 284
U.S. 125, 132 (1931).

[1529] Smith _v._ Turner (Passenger Cases), 7 How. 283, 414 (1849)
(opinion of Justice Wayne); _cf._ Cooley _v._ Board of Port Wardens, 12
How. 299, 314 (1851).

[1530] Morgan's L. & T.R. & S.S. Co. _v._ Louisiana Bd. of Health, 118
U.S. 455, 467 (1886). _See also_ Munn _v._ Illinois, 94 U.S. 113, 135
(1877); Johnson _v._ Chicago & P. Elevator Co., 119 U.S. 388, 400
(1886).

[1531] 1 Stat. 53, 54 (1789).

[1532] Thompson _v._ Darden, 198 U.S. 310 (1905).

[1533] Alaska _v._ Troy, 258 U.S. 101 (1922).

[1534] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 321 (1937);
Knote _v._ United States, 95 U.S. 149, 154 (1877).

[1535] United States _v._ Price, 116 U.S. 43 (1885); United States _v._
Realty Co., 163 U.S. 427, 439 (1896); Allen _v._ Smith, 173 U.S. 389,
393 (1899).

[1536] Hart _v._ United States, 118 U.S. 62, 67 (1886).

[1537] 32 Stat. 388 (1902).

[1538] Cincinnati Soap Co. _v._ United States, 301 U.S. 308, 322 (1937).

[1539] Reeside _v._ Walker, 11 How. 272 (1851).

[1540] United States _v._ Klein, 13 Wall. 128 (1872).

[1541] Knote _v._ United States, 95 U.S. 149, 154 (1877); Austin _v._
United States, 155 U.S. 417, 427 (1894).

[1542] Hart _v._ United States, 118 U.S. 62, 67 (1886).

[1543] 13 Op. Atty. Gen. 538 (1871).

[1544] Williams _v._ Bruffy, 96 U.S. 176, 183 (1878).

[1545] 14 Pet. 540 (1840).

[1546] United States _v._ California, 332 U.S. 19 (1947).

[1547] 313 U.S. 69 (1941).

[1548] Ibid. 78-79.

[1549] Craig _v._ Missouri, 4 Pet. 410, 425 (1830); Byrne _v._ Missouri,
8 Pet. 40 (1834).

[1550] Poindexter _v._ Greenhow, 114 U.S. 270 (1885); Chaffin _v._
Taylor, 116 U.S. 567 (1886).

[1551] Houston & T.C.R. Co. _v._ Texas, 177 U.S. 66 (1900).

[1552] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837).

[1553] Darrington _v._ Bank of Alabama, 13 How. 12, 15 (1851); Curran
_v._ Arkansas, 15 How. 304, 317 (1853).

[1554] Briscoe _v._ Bank of Kentucky, 11 Pet. 257 (1837).

[1555] Woodruff _v._ Trapnall, 10 How. 190, 205 (1851).

[1556] Legal Tender Cases, 110 U.S. 421, 446 (1884).

[1557] Gwin _v._ Breedlove, 2 How. 29, 38 (1844). _See also_ Griffin
_v._ Thompson, 2 How. 244 (1844).

[1558] Farmers & Merchants Bank _v._ Federal Reserve Bank, 262 U.S. 649,
659 (1923).

[1559] Cummings _v._ Missouri, 4 Wall. 277, 323 (1867); Klinger _v._
Missouri, 13 Wall. 257 (1872); Pierce _v._ Carskadon, 16 Wall. 234, 239
(1873). _See_ p. 317, _supra_, and p. 327, _post_.

[1560] Calder _v._ Bull, 3 Dall. 386, 390 (1798); Watson _v._ Mercer, 8
Pet. 88, 110 (1834); Baltimore & S.R. Co. _v._ Nesbit, 10 How. 395, 401
(1850); Carpenter _v._ Pennsylvania, 17 How. 456, 463 (1855); Loche _v._
New Orleans, 4 Wall. 172 (1867); Orr _v._ Gilman, 183 U.S. 278, 285
(1902); Kentucky Union Co. _v._ Kentucky, 219 U.S. 140 (1911).

[1561] Frank _v._ Mangum, 237 U.S. 300, 344 (1915); Ross _v._ Oregon,
227 U.S. 150, 161 (1913).

[1562] Jaehne _v._ New York, 128 U.S. 189, 190 (1888).

[1563] Rooney _v._ North Dakota, 196 U.S. 319, 325 (1905).

[1564] Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915).

[1565] Samuels _v._ McCurdy, 267 U.S. 188 (1925).

[1566] Hawker _v._ New York, 170 U.S. 189, 190 (1898). _See also_ Reetz
_v._ Michigan, 188 U.S. 505, 509 (1903); Lehmann _v._ State Board of
Public Accountancy, 263 U.S. 394 (1923).

[1567] Cummings _v._ Missouri, 4 Wall. 277, 316 (1867).

[1568] Pierce _v._ Carskadon, 16 Wall. 234 (1873).

[1569] Lindsey _v._ Washington, 301 U.S. 397 (1937).

[1570] Kring _v._ Missouri, 107 U.S. 221 (1883).

[1571] Holden _v._ Minnesota, 137 U.S. 483, 491 (1890).

[1572] Ex parte Medley, 134 U.S. 160, 171 (1890).

[1573] Gryger _v._ Burke, 334 U.S. 728 (1948); McDonald _v._
Massachusetts, 180 U.S. 311 (1901); Graham _v._ West Virginia, 224 U.S.
616 (1912).

[1574] Malloy _v._ South Carolina, 237 U.S. 180 (1915).

[1575] Rooney _v._ North Dakota, 196 U.S. 319, 324 (1905).

[1576] Gibson _v._ Mississippi, 162 U.S. 565, 590 (1896).

[1577] Duncan _v._ Missouri, 152 U.S. 377, 382 (1894).

[1578] Gut _v._ Minnesota, 9 Wall. 35, 37 (1870).

[1579] Duncan _v._ Missouri, 152 U.S. 377 (1894).

[1580] Mallett _v._ North Carolina, 181 U.S. 589, 593 (1901).

[1581] Gibson _v._ Mississippi, 162 U.S. 565, 588 (1896).

[1582] Beazell _v._ Ohio, 269 U.S. 167 (1925).

[1583] Thompson _v._ Missouri, 171 U.S. 380, 381 (1898).

[1584] Thompson _v._ Utah, 170 U.S. 343 (1898).

[1585] Dodge _v._ Woolsey, 18 How. 331 (1856); Railroad Co. _v._
McClure, 10 Wall. 511 (1871); New Orleans Gaslight Co. _v._ Louisiana
Light & Heat Producing & Mfg. Co., 115 U.S. 650 (1885); Bier _v._
McGehee, 148 U.S. 137, 140 (1893).

[1586] New Orleans Waterworks Co. _v._ Rivers, 115 U.S. 674 (1885);
Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1 (1898); Vicksburg
_v._ Vicksburg Waterworks Co., 202 U.S. 453 (1906); Atlantic Coast Line
R. Co. _v._ Goldsboro, 232 U.S. 548 (1914); Cuyahoga River Power Co.
_v._ Akron, 240 U.S. 462 (1916).

[1587] The above; _also_ Grand Trunk Western R. Co. _v._ Railroad
Commission, 221 U.S. 400 (1911); Louisville & N.R. Co. _v._ Garrett, 231
U.S. 298 (1913); Appleby _v._ Delaney, 271 U.S. 403 (1926).

[1588] Central Land Co. _v._ Laidley, 159 U.S. 103 (1895). _See also_
New Orleans Waterworks Co. _v._ Louisiana Sugar Ref. Co., 125 U.S. 18
(1888); Hanford _v._ Davies, 163 U.S. 273 (1896); Ross _v._ Oregon, 227
U.S. 150 (1913); Detroit United R. Co. _v._ Michigan, 242 U.S. 238
(1916); Long Sault Development Co. _v._ Call, 242 U.S. 272 (1916); McCoy
_v._ Union Elev. Co., 247 U.S. 354 (1918); Columbia R. Gas & E. Co. _v._
South Carolina, 261 U.S. 236 (1923); Tidal Oil Co. _v._ Flanagan, 263
U.S. 444 (1924).

[1589] Jefferson Branch Bank _v._ Skelly, 1 Bl. 436, 443 (1862); Bridge
Proprietors _v._ Hoboken Co., 1 Wall. 116, 145 (1863); Wright _v._
Nagle, 101 U.S. 791, 793 (1880); and McGahey _v._ Virginia, 135 U.S.
662, 667 (1890); Scott _v._ McNeal, 154 U.S. 34, 45 (1894); Stearns _v._
Minnesota, 179 U.S. 223, 232-233 (1900); Coombes _v._ Getz, 285 U.S.
434, 441 (1932); Atlantic C.L.R. Co. _v._ Phillips, 332 U.S. 168, 170
(1947).

[1590] McCullough _v._ Virginia, 172 U.S. 102 (1898); Houston & Texas
Central R.R. Co. _v._ Texas, 177 U.S. 66, 76, 77 (1900); Hubert _v._ New
Orleans, 215 U.S. 170, 175 (1909); Carondelet Canal Co. _v._ Louisiana,
233 U.S. 362, 376 (1914); Louisiana Ry. & Nav. Co. _v._ New Orleans, 235
U.S. 164, 171 (1914).

[1591] State Bank of Ohio _v._ Knoop, 16 How. 369 (1854), and Ohio Life
Insurance & Trust Co. _v._ Debolt, 16 How. 416 (1854) are the leading
cases. _See also_ Jefferson Branch Bank _v._ Skelly, 1 Bl. 436 (1862);
Louisiana _v._ Pilsbury, 105 U.S. 278 (1882); McGahey _v._ Virginia, 135
U.S. 662 (1890); Mobile & Ohio R.R. Co. _v._ Tennessee, 153 U.S. 486
(1894); Bacon _v._ Texas, 163 U.S. 207 (1896); McCullough _v._ Virginia,
172 U.S. 102 (1898).

[1592] Gelpcke _v._ Dubuque, 1 Wall. 175, 206 (1864); Havemeyer _v._
Iowa County, 3 Wall. 294 (1866); Thompson _v._ Lee County, 3 Wall. 327
(1866); Kenosha _v._ Lamson, 9 Wall. 477 (1870); Olcott _v._ Fond du Lac
County, 16 Wall. 678 (1873); Taylor _v._ Ypsilanti, 105 U.S. 60 (1882);
Anderson _v._ Santa Anna, 116 U.S. 356 (1886); Wilkes County _v._ Coler,
180 U.S. 506 (1901).

[1593] Great Southern Fire Proof Hotel Co. _v._ Jones, 193 U.S. 532, 548
(1904).

[1594] Sauer _v._ New York, 206 U.S. 536 (1907); Muhlker _v._ New York &
H.R. Co., 197 U.S. 544, 570 (1905).

[1595] Tidal Oil Company _v._ Flanagan, 263 U.S. 444, 450, 451-452
(1924).

[1596] Walker _v._ Whitehead, 16 Wall. 314 (1873); Wood _v._ Lovett, 313
U.S. 362, 370 (1941).

[1597] 4 Wheat. 122, 197 (1819); _see also_ Curran _v._ Arkansas, 15
How. 304 (1853).

[1598] 4 Wheat. 518 (1819).

[1599] Ibid. 627.

[1600] 290 U.S. 398 (1934).

[1601] Ibid. 431.

[1602] Ibid. 435.

[1603] "The _Blaisdell_ decision represented a realistic appreciation of
the fact that ours is an evolving society and that the general words of
the contract clause were not intended to reduce the legislative branch
of government to helpless impotency." Justice Black, in Wood _v._
Lovett, 313 U.S. 362, 383 (1941).

[1604] Wright, The Contract Clause of the Constitution, 95 (Cambridge,
1938).

[1605] Farrand, Records, III, 548.

[1606] The Federalist, No. 44.

[1607] Works of James Wilson, I, 567, (Andrews, ed., 1896).

[1608] 2 Dall. 410 (1793).

[1609] Ogden _v._ Saunders, 12 Wheat. 213, 338 (1827).

[1610] 6 Cr. 87 (1810).

[1611] In Ware _v._ Hylton, 3 Dall. 199 (1797) the Court had earlier set
aside an act of Virginia as being in conflict with the Treaty of Peace,
of 1783, with Great Britain.

[1612] As given by Professor Wright in his treatise, The Contract Clause
of the Constitution, 22. Professor Wright dates Hamilton's pamphlet,
1796.

[1613] 6 Cr. 87, 139 (1810). Justice Johnson, in his concurring opinion,
relied exclusively on general principles. "I do not hesitate to declare,
that a State does not possess the power of revoking its own grants. But
I do it, on a general principle, on the reason and nature of things; a
principle which will impose laws even on the Deity." Ibid. 143. _See
also_ his words in Satterlee _v._ Matthewson, 2 Pet. 380, 686 (1829);
and those of the North Carolina Supreme Court in Barnes _v._ Barnes, 8
Jones L. 53 (N.C.) 366 (1861), quoted in Thomas Henry Calvert. The
Constitution and the Courts, I, 948 (Northport, L.I., 1924). In both
these opinions it is asseverated that the contracts clause has been made
to do the work of "fundamental principles."

[1614] 7 Cr. 164 (1812). The exemption from taxation which was involved
in this case was held in 1886 to have lapsed through the acquiescence
for sixty years of the owners of the lands in the imposition of taxes
upon these. Given _v._ Wright, 117 U.S. 648 (1886).

[1615] Dartmouth College _v._ Woodward, 4 Wheat. 518 (1819).

[1616] It was not until well along in the eighteenth century that the
first American business corporation was created: "This was the New
London Society United for Trade and Commerce, which was chartered in
Connecticut in 1732. It had, however, an early demise. Following this
was a second Connecticut charter, namely, for building 'Union Wharf,' on
'Long Wharf,' at New Haven. A similar company, 'The Proprietors of
Boston Pier,' or 'The Long Wharf in the Town of Boston in New England,'
was chartered by the Massachusetts General Court in 1772. In 1768 the
Pennsylvania Assembly incorporated 'The Philadelphia Contributionship
for the Insuring of Houses from Loss by Fire.' Alone of the colonial
business corporations it has had a continuous existence to the present
day.

"Apparently the only other business corporations of the colonies were
companies for supplying water. One was incorporated in Massachusetts in
1652, and three in Rhode Island in 1772 and 1773. Alongside of these
corporations, and, indeed, preceding them, were a large number of
unincorporated associations, partnerships, societies, groups of
'undertakers,' 'companies,' formed for a great variety of business
purposes. In the eye of the law all of them were probably mere
partnerships or tenancies in common. Whaling and fishing companies,
so-called, were numerous. There were a number of mining companies,
chiefly for producing iron or copper. There were some manufacturing
companies, but they were not numerous. Banking institutions were
represented notably by the 'Bank of Credit Lumbard,' promoted in Boston
by John Blackwell and authorized by the General Court in 1686, and by
the 'Land Bank or Manufacturing Scheme' in the same colony in 1739-41.

"In addition to these there were a few insurance companies, a number of
companies formed for the Indian trade, numerous land companies, large
and small, a number of associations for erecting bridges, building or
repairing roads, and improving navigation of small streams or rivers.
Besides these there were a few colonial corporations not easily classed,
such as libraries, chambers of commerce, etc.

"During the Revolution few corporations of any sort were chartered.
After the conclusion of peace the situation was materially altered.
Capital had accumulated during the war. The disbanding of the army set
free a labor supply, which was rapidly increased by throngs of
immigrants. The day was one of bold experimentation, enthusiastic
exploitation of new methods, eager exploration of new paths, confident
undertaking of new enterprises. Everything conspired to bring about a
considerable extension of corporate enterprise in the field of business
before the end of the eighteenth century, notably after the critical
period of disunion and Constitution-making has passed. Prior to 1801
over three hundred charters were granted for business corporations; 90
per cent. of them after 1789. Judged by twentieth-century standards
these seem few, indeed, but neither in the colonies nor in the mother
country was there precedent for such a development." 105 The Nation 512
(New York, Nov. 8, 1917), reviewing Joseph Stancliffe Davis, Essays in
the Earlier History of American Corporations (2 vols., Harvard
University Press, 1917).

[1617] In 1806 Chief Justice Parsons of the Supreme Judicial Court of
Massachusetts, without mentioning the contracts clause, declared that
rights legally vested in a corporation cannot be "controuled or
destroyed by a subsequent statute, unless a power be reserved to the
legislature in the act of incorporation," Wales _v._ Stetson, 2 Mass.
143 (1806). _See also_ Stoughton _v._ Baker et al., 4 Mass. 522 (1808)
to like effect; _cf._ Locke _v._ Dane, 9 Mass. 360 (1812) in which it is
said that the purpose of the contracts clause was to "provide against
paper money and insolvent laws." Together these holdings add up to the
conclusion that the reliance of the Massachusetts court was on
"fundamental principles," rather than the contracts clause.

[1618] 4 Wheat., especially at 577-595 (Webster's argument); ibid. 666
(Story's opinion). _See also_ Story's opinion for the Court in Terrett
_v._ Taylor, 9 Cr. 43 (1815).

[1619] 4 Wheat. 518 (1819).

[1620] Ibid. 627.

[1621] 4 Wheat. at 637; _see also_ Home of the Friendless _v._ Rouse, 8
Wall. 430, 437 (1869).

[1622] 4 Pet. 514 (1830).

[1623] 11 Pet. 420 (1837).

[1624] Note the various cases to which municipalities are parties.

[1625] 4 Wheat. at 629.

[1626] In Munn _v._ Illinois, 94 U.S. 113 (1877) a category of "business
affected with a public interest" and whose property is "impressed with a
public use" was recognized. A corporation engaged in such a business
becomes a "quasi-public" corporation, the power of the State to regulate
which is larger than in the case of a purely private corporation.
Inasmuch as most corporations receiving public franchises are of this
character, the final result of Munn _v._ Illinois was to enlarge the
police power of the State in the case of the most important
beneficiaries of the Dartmouth College decision.

[1627] Meriwether _v._ Garrett, 102 U.S. 472 (1880); Covington _v._
Kentucky, 173 U.S. 231 (1899); Hunter _v._ Pittsburgh, 207 U.S. 161
(1907).

[1628] East Hartford _v._ Hartford Bridge Co., 10 How. 511 (1851);
Hunter _v._ Pittsburgh, 207 U.S. 161 (1907).

[1629] Trenton _v._ New Jersey, 262 U.S. 182, 191 (1923).

[1630] Newton _v._ Mahoning County, 100 U.S. 548 (1880).

[1631] Attorney General ex rel. Kies _v._ Lowrey, 199 U.S. 233 (1905).

[1632] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502 (1942).
In this case the contracts involved were municipal bonds, and hence
"private" contracts; but the overruling power of the State in relation
to its municipalities was one of the grounds invoked by the Court in
sustaining the legislation. _See_ Ibid. 509. "'A municipal corporation *
* * is a representative not only of the State, but is a portion of its
governmental power. * * * The State may withdraw these local powers of
government at pleasure, and may, through its legislature or other
appointed channels, govern the local territory as it governs the State
at large. It may enlarge or contract its powers or destroy its
existence.'" United States _v._ Baltimore & O.R. Co., 17 Wall. 322, 329
(1873); and _see_ Hunter _v._ Pittsburgh, 207 U.S. 161 (1907).

[1633] Butler _v._ Pennsylvania, 10 How. 402 (1850); Fisk _v._ Police
Jury, 116 U.S. 131 (1885); Dodge _v._ Board of Education, 302 U.S. 74
(1937); Mississippi Use of Robertson _v._ Miller, 276 U.S. 174 (1928).

[1634] Butler _v._ Pennsylvania, 10 How. 420 (1850). _Cf._ Marbury _v._
Madison, 1 Cr. 137 (1803); Hoke _v._ Henderson, 15 N.C., (4 Dev.) 1
(1833). _See also_ United States _v._ Fisher, 109 U.S. 143 (1883);
United States _v._ Mitchell, 109 U.S. 146 (1883); Crenshaw _v._ United
States, 134 U.S. 99 (1890).

[1635] Fisk _v._ Police Jury, 116 U.S. 131 (1885); Mississippi Use of
Robertson _v._ Miller, 276 U.S. 174 (1928).

[1636] Hall _v._ Wisconsin, 103 U.S. 5 (1880). _Cf._ Higginbotham _v._
Baton Rouge, 306 U.S. 535 (1939).

[1637] Phelps _v._ Board of Education, 300 U.S. 319 (1937).

[1638] Dodge _v._ Board of Education, 302 U.S. 74 (1937).

[1639] Indiana ex rel. Anderson _v._ Brand 303 U.S. 95 (1938).

[1640] 7 Cr. 164 (1812).

[1641] Delaware Railroad Tax, 18 Wall. 206, 225 (1874); Pacific R. Co.
_v._ Maguire, 20 Wall. 36, 43 (1874); Humphrey _v._ Pegues, 16 Wall.
244, 249 (1873); Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869).

[1642] 16 How. 369 (1854).

[1643] Ibid. 382-383.

[1644] Salt Co. _v._ East Saginaw, 13 Wall. 373, 379 (1872). _See also_
Welch _v._ Cook, 97 U.S. 541 (1879); Grand Lodge, F. & A.M. _v._ New
Orleans, 166 U.S. 143 (1897); Wisconsin & M.R. Co. _v._ Powers, 191 U.S.
379 (1903). _Cf._ Ettor _v._ Tacoma, 228 U.S. 148 (1913), in which it
was held that the repeal of a statute providing for consequential
damages caused by changes of grades of streets could not
constitutionally affect an already accrued right to compensation.

[1645] _See_ Christ Church _v._ Philadelphia County, 24 How. 300, 302
(1861); Seton Hall College _v._ South Orange, 242 U.S. 100 (1916).

[1646] Compare the above case with Home of Friendless _v._ Rouse, 8
Wall. 430, 437 (1869); _also_ Illinois Central R. Co. _v._ Decatur, 147
U.S. 190 (1893) with Wisconsin & M.R. Co. _v._ Powers, 191 U.S. 379
(1903).

[1647] Crane _v._ Hahlo, 258 U.S. 142, 145-146 (1922); Louisiana ex rel.
Folsom _v._ New Orleans, 109 U.S. 285, 288 (1883); Morley _v._ Lakeshore
& M.S.R. Co., 146 U.S. 162, 169 (1892). That the obligation of contracts
clause did not protect vested rights merely as such was stated by the
Court as early as Satterlee _v._ Matthewson, 2 Pet. 380, 413 (1829); and
again in the Charles River Bridge Co. _v._ Warren Bridge Co., 11 Pet.
420, 539-540 (1837).

[1648] _See_ Story's opinion. 4 Wheat. at 712.

[1649] Home of Friendless _v._ Rouse, 8 Wall. 430, 438 (1869);
Pennsylvania College Cases, 13 Wall. 190, 213 (1872); Miller _v._ New
York, 15 Wall. 478 (1873); Murray _v._ Charleston, 96 U.S. 432 (1878);
Greenwood _v._ Union Freight R. Co., 105 U.S. 13 (1882); Chesapeake &
O.R. Co. _v._ Miller, 114 U.S. 176 (1885); Louisville Water Co. _v._
Clark, 143 U.S. 1 (1892).

[1650] New Jersey _v._ Yard, 95 U.S. 104, 111 (1877).

[1651] _See_ Holyoke Water Power Co. _v._ Lyman, 15 Wall. 500, 520
(1873), following Fisheries _v._ Holyoke Water Power Co., 104 Mass. 446,
451 (1870); _also_ Shields _v._ Ohio, 95 U.S. 319 (1877); Fair Haven &
W.R. Co. _v._ New Haven, 203 U.S. 379 (1906); Berea College _v._
Kentucky, 211 U.S. 45 (1908). _See also_ Lothrop _v._ Stedman, 15 Fed.
Cas. No. 8,519 (1875), where the principles of natural justice are
thought to set a limit to the power. Earlier is Zabriskie _v._
Hackensack & N.Y.R. Co., 18 N.J. Eq. 178 (1867) where it is said that a
new charter may not be substituted; _also_ Allen _v._ McKean, 1 Fed.
Cas. No. 229 (1833) in which a federal court set aside a Maine statute
somewhat like the one involved in the Dartmouth College case, on the
ground that it went beyond the power of mere alteration. In this case,
however, only the right to alter had been reserved, in the charter
itself, and not the right to repeal.

[1652] _See_ in this connection the cases cited by Justice Sutherland in
his opinion for the Court in Phillips Petroleum Co. _v._ Jenkins, 297
U.S. 629 (1936).

[1653] Curran _v._ Arkansas, 15 How. 304 (1853); Shields _v._ Ohio, 95
U.S. 319 (1877); Greenwood _v._ Union Freight R. Co., 105 U.S. 13
(1882); Adirondack R. Co. _v._ New York, 176 U.S. 335 (1900); Stearns
_v._ Minnesota, 179 U.S. 223 (1900); Chicago, M. & St. P.R. Co. _v._
Wisconsin, 238 U.S. 491 (1915); Coombes _v._ Getz, 285 U.S. 434 (1932).

[1654] Pennsylvania College Cases, 13 Wall. 190, 218 (1872). _See also_
Calder _v._ Michigan, 218 U.S. 591 (1910).

[1655] Lakeshore & M.S.R. Co. _v._ Smith, 173 U.S. 684, 690 (1899);
Coombes _v._ Getz, 285 U.S. 434 (1932). Both these decisions cite
Greenwood _v._ Union Freight R. Co., 105 U.S. 13, 17 (1882), but without
apparent justification.

[1656] 4 Pet. 514 (1830).

[1657] Thorpe _v._ Rutland & Burlington Railroad Co., 27 Vt. 140 (1854).

[1658] Thus a railroad may be required, at its own expense and
irrespective of benefits to itself, to eliminate grade crossings in the
interest of public safety, (New York & N.E.R. Co. _v._ Bristol, 151 U.S.
556 (1894)); to make highway crossings reasonably safe and convenient
for public use, (Great Northern R. Co. _v._ Minnesota, 246 U.S. 434
(1918)); to repair viaducts, (Northern Pac. R. Co. _v._ Minnesota, 208
U.S. 583 (1908)); and to fence its right of way, (Minneapolis & St. L.R.
Co. _v._ Emmons, 149 U.S. 364 (1893)). Though a railroad company owns
the right of way along a street, the city may require it to lay tracks
to conform to the established grade; to fill in tracks at street
intersections; and to remove tracks from a busy street intersection,
when the attendant disadvantages and expense are small and the safety of
the public appreciably enhanced, (Denver & R.G.R. Co. _v._ Denver, 250
U.S. 241 (1919)).

Likewise the State, in the public interest, may require a railroad to
reestablish an abandoned station, even though the railroad commission
had previously authorized its abandonment on condition that another
station be established elsewhere, a condition which had been complied
with, (New Haven & N. Co. _v._ Hamersley, 104 U.S. 1 (1881)). It may
impose upon a railroad liability for fire communicated by its
locomotives, even though the State had previously authorized the company
to use said type of locomotive power, (St. Louis & S.F.R. Co. _v._
Mathews, 165 U.S. 1, 5 (1897)); and it may penalize the failure to cut
drains through embankments so as to prevent flooding of adjacent lands,
(Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67 (1915)).

[1659] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878). _See also_
Fertilizing Co. _v._ Hyde Park, 97 U.S. 659 (1878); and Hammond Packing
_v._ Arkansas, 212 U.S. 322, 345 (1909).

[1660] 11 Pet. 420 (1837).

[1661] 11 Pet. at 548-553.

[1662] 201 U.S. 400 (1906).

[1663] Ibid. 471-472, citing The Binghamton Bridge, 3 Wall. 51, 75
(1865).

[1664] Memphis & L.R.R. Co. _v._ Berry, 112 U.S. 609, 617 (1884). _See
also_ Picard _v._ East Tennessee, Virginia & Georgia R. Co., 130 U.S.
637, 641 (1889); Louisville & N.R. Co. _v._ Palmes, 109 U.S. 244, 251
(1883); Morgan _v._ Louisiana, 93 U.S. 217 (1876); Wilson _v._ Gaines,
103 U.S. 417 (1881); Norfolk & W.R. Co. _v._ Pendleton, 156 U.S. 667,
673 (1895).

[1665] Railroad Co. _v._ Georgia, 98 U.S. 359, 365 (1879).

[1666] Phoenix F. & M. Insurance Co. _v._ Tennessee, 161 U.S. 174
(1896).

[1667] Rochester R. Co. _v._ Rochester, 205 U.S. 236 (1907); followed in
Wright _v._ Georgia R. & Bkg. Co., 216 U.S. 420 (1910); and New York
Rapid Transit Co. _v._ City of New York, 303 U.S. 573 (1938). _Cf._
Tennessee _v._ Whitworth, 117 U.S. 139 (1886) the authority of which is
respected in the preceding case.

[1668] Chicago, B. & K.C.R. Co. _v._ Missouri ex rel. Guffey, 120 U.S.
569 (1887).

[1669] Ford _v._ Delta & Pine Land Co., 164 U.S. 662 (1897).

[1670] Vicksburg, S. & P.R. Co. _v._ Dennis, 116 U.S. 665 (1886).

[1671] Millsaps College _v._ Jackson, 275 U.S. 129 (1927).

[1672] Hale _v._ Iowa State Board of Assessment, 302 U.S. 95 (1937).

[1673] Stone _v._ Farmers' Loan & Trust Co. (Railroad Commission Cases),
116 U.S. 307, 330 (1886) extended in Southern Pacific Co. _v._ Campbell,
230 U.S. 537 (1913) to cases in which the word "reasonable" does not
appear to qualify the company's right to prescribe tolls. _See also_
American Toll Bridge Co. _v._ Railroad Com. of California et al., 307
U.S. 486 (1939).

[1674] Georgia R. & Power Co. _v._ Decatur, 262 U.S. 432 (1923). _See
also_ Southern Iowa Electric Co. _v._ Chariton, 255 U.S. 539 (1921).

[1675] Walla Walla _v._ Walla Walla Water Co., 172 U.S. 1, 15 (1898).

[1676] Skaneateles Water Works Co. _v._ Skaneateles, 184 U.S. 354
(1902); Knoxville Water Co. _v._ Knoxville, 200 U.S. 22 (1906); Madera
Water Works _v._ Madera, 228 U.S. 454 (1913).

[1677] Rogers Park Water Co. _v._ Fergus, 180 U.S. 624 (1901).

[1678] Home Telephone Co. _v._ Los Angeles, 211 U.S. 265 (1908);
Wyandotte Gas Co. _v._ Kansas, 231 U.S. 622 (1914).

[1679] _See also_ Puget Sound Traction, Light & P. Co. _v._ Reynolds,
244 U.S. 574 (1917). "Before we can find impairment of a contract we
must find an obligation of the contract which has been impaired. Since
the contract here relied upon is one between a political subdivision of
a state and private individuals, settled principles of construction
require that the obligation alleged to have been impaired be clearly and
unequivocally expressed." Justice Black for the Court in Keefe _v._
Clark, 322 U.S. 393, 396-397 (1944).

[1680] Corporation of Brick Church _v._ Mayor et al., 5 Cowen (N.Y.)
538, 540 (1826).

[1681] West River Bridge Co. _v._ Dix, 6 How. 507 (1848). _See also_
Backus _v._ Lebanon, 11 N.H. 19 (1840); White River Turnpike Co. _v._
Vermont Cent. R. Co., 21 Vt. 590 (1849); and Bonaparte _v._ Camden &
A.R. Co., 3 Fed. Cas. No. 1,617 (1830); cited in Calvert I, 960-961.

[1682] Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20 (1917).

[1683] Illinois Central Railroad _v._ Illinois, 146 U.S. 387, 453, 455
(1892).

[1684] _See_ pp. 335-336.

[1685] _See_ especially Home of the Friendless _v._ Rouse, 8 Wall. 430
(1869), and Washington University _v._ Rouse, 8 Wall. 439 (1869).

[1686] Georgia Railway Co. _v._ Redwine, 342 U.S. 299, 305-06 (1952).
The Court distinguishes In re Ayers, 123 U.S. 443 (1887) on the ground
that the action there was barred "as one in substance directed against
the State to obtain specific performance of a contract with the State".
342 U.S. 305.

[1687] Stone _v._ Mississippi, 101 U.S. 814, 820 (1880).

[1688] Butcher's Union Co. _v._ Crescent City Co., 111 U.S. 746 (1884).

[1689] New Orleans Gas Co. _v._ Louisiana Light Co., 115 U.S. 630
(1885).

[1690] Atlantic Coast Line R. Co. _v._ Goldsboro, 232 U.S. 548, 558
(1914). _See also_ Chicago & A.R. Co. _v._ Tranbarger, 238 U.S. 67
(1915); _also_ Pennsylvania Hospital _v._ Philadelphia, 245 U.S. 20
(1917), where the police power and eminent domain are treated on the
same basis in respect of inalienability; also Wabash R. Co. _v._
Defiance, 167 U.S. 88, 97 (1897); Home Telephone Co. _v._ Los Angeles,
211 U.S. 265 (1908); and Calvert I, 962.

[1691] Morley _v._ Lake Shore & M.S.R. Co., 146 U.S. 162 (1892); New
Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891); Missouri &
A. Lumber & Min. Co. _v._ Greenwood Dist, 249 U.S. 170 (1919). But _cf._
Livingston _v._ Moore, 7 Pet. 469, 549 (1833); and Garrison _v._ New
York, 21 Wall. 196, 203 (1875), suggesting that a different view was
earlier entertained in the case of judgments in actions of debt.

[1692] Maynard _v._ Hill, 125 U.S. 190 (1888); Dartmouth College _v._
Woodward, 4 Wheat. 518, 629 (1819). _Cf._ Andrews _v._ Andrews, 188 U.S.
14 (1903). The question whether a wife's rights in the community
property under the laws of California were of a contractual nature was
raised but not determined in Moffitt _v._ Kelly, 218 U.S. 400 (1910).

[1693] New Orleans _v._ New Orleans Waterworks Co., 142 U.S. 79 (1891);
Zane _v._ Hamilton County, 189 U.S. 370, 381 (1903).

[1694] 4 Wheat. 122 (1819). For the first such case in a Federal Circuit
Court, _see_ Charles Warren, The Supreme Court in United States History,
I, 67 (Boston, 1922).

[1695] 12 Wheat. 213 (1827).

[1696] Ibid. 353-354.

[1697] Von Hoffman _v._ Quincy, 4 Wall. 535, 552 (1867).

[1698] 1 How. 311 (1843).

[1699] 2 How. 608 (1844).

[1700] Oshkosh Waterworks Co. _v._ Oshkosh, 187 U.S. 437, 439 (1903);
New Orleans & L.R. Co. _v._ Louisiana, 157 U.S. 219 (1895).

[1701] Antoni _v._ Greenhow, 107 U.S. 769 (1883).

[1702] The right was unheld in Mason _v._ Haile, 12 Wheat. 370 (1827);
and again in Vial _v._ Penniman (Penniman's Case), 103 U.S. 714 (1881).
On early English and Colonial law touching the subject, _see_ argument
of counsel in Sturges _v._ Crowninshield, 4 Wheat. 122, 140-145 (1819).

[1703] McGahey _v._ Virginia, 135 U.S. 662 (1890).

[1704] Louisiana ex rel. Ranger _v._ New Orleans, 102 U.S. 203 (1880).

[1705] Von Hoffman _v._ Quincy, 4 Wall. 535, 554 (1867).

[1706] Antoni _v._ Greenhow, 107 U.S. 769, 775.--Illustrations of
changes in remedies, which have been sustained, may be seen in the
following cases: Jackson ex dem. Hart _v._ Lamphire, 3 Pet. 280 (1830);
Hawkins _v._ Barney, 5 Pet. 457 (1831); Crawford _v._ Branch Bank of
Alabama, 7 How. 279 (1849); Curtis _v._ Whitney, 13 Wall. 68 (1872);
Cairo & F.R. Co. _v._ Hecht, 95 U.S. 168 (1877); Terry _v._ Anderson, 95
U.S. 628 (1877); Tennessee _v._ Sneed, 96 U.S. 69 (1877); South Carolina
_v._ Gaillard, 101 U.S. 433 (1880); Louisiana _v._ New Orleans, 102 U.S.
203 (1880); Connecticut Mut. L. Ins. Co. _v._ Cushman, 108 U.S. 51
(1883); Vance _v._ Vance, 108 U.S. 514 (1883); Gilfillan _v._ Union
Canal Co., 109 U.S. 401 (1883); Hill _v._ Merchants' Mut. Ins. Co., 134
U.S. 515 (1890); New Orleans City & Lake R. Co. _v._ Louisiana, 157 U.S.
219 (1895); Red River Valley Nat. Bank _v._ Craig, 181 U.S. 548 (1901);
Wilson _v._ Standefer, 184 U.S. 399 (1902); Oshkosh Waterworks Co. _v._
Oshkosh, 187 U.S. 437 (1903); Waggoner _v._ Flack, 188 U.S. 595 (1903);
Bernheimer _v._ Converse, 206 U.S. 516 (1907); Henley _v._ Myers, 215
U.S. 373 (1910); Selig _v._ Hamilton, 234 U.S. 652 (1914); Security Sav.
Bank _v._ California, 263 U.S. 282 (1923); United States Mortgage Co.
_v._ Matthews, 293 U.S. 232 (1934).

Compare the following cases, where changes in remedies were deemed to be
of such a character as to interfere with substantial rights: Wilmington
& W.R. Co. _v._ King, 91 U.S. 3 (1875); Memphis _v._ United States, 97
U.S. 293 (1878); Poindexter _v._ Greenhow, 114 U.S. 269, 270, 298, 299
(1885); Effinger _v._ Kenney, 115 U.S. 566 (1885); Fisk _v._ Jefferson
Police Jury, 116 U.S. 131 (1885); Bradley _v._ Lightcap, 195 U.S. 1
(1904); Bank of Minden _v._ Clement, 256 U.S. 126 (1921).

[1707] Von Hoffman _v._ Quincy, 4 Wall. 535, 554-555 (1867).

[1708] _See also_ Louisiana ex rel. Nelson _v._ St. Martin's Parish, 111
U.S. 716 (1884).

[1709] Mobile _v._ Watson, 116 U.S. 289 (1886); Graham _v._ Folsom, 200
U.S. 248 (1906).

[1710] Heine _v._ Levee Commissioners, 19 Wall. 655 (1874). _Cf._
Virginia _v._ West Virginia, 246 U.S. 565 (1918).

[1711] Faitoute Iron & Steel Co. _v._ Asbury Park, 316 U.S. 502, 510
(1942). Alluding to the ineffectiveness of purely judicial remedies
against defaulting municipalities, Justice Frankfurter says: "For there
is no remedy when resort is had to 'devices and contrivances' to nullify
the taxing power which can be carried out only through authorized
officials. _See_ Rees _v._ City of Watertown, 19 Wall. 107, 124 (1874).
And so we have had the spectacle of taxing officials resigning from
office in order to frustrate tax levies through mandamus, and officials
running on a platform of willingness to go to jail rather than to
enforce a tax levy (_see_ Raymond, State and Municipal Bonds, 342-343),
and evasion of service by tax collectors, thus making impotent a court's
mandate. Yost _v._ Dallas County, 236 U.S. 50, 57 (1915)." 316 U.S. at
511.

[1712] Myers _v._ Irwin, 2 Sergeant and Rawle's (Pa.), 367, 371 (1816);
_also_, to same effect, Lindenmuller _v._ The People, 33 Barbour (N.Y.),
548 (1861). _See also_ Brown _v._ Penobscot Bank, 8 Mass. 445 (1812).

[1713] Manigault _v._ Springs, 199 U.S. 473, 480 (1905).

[1714] Jackson _v._ Lamphire, 3 Pet. 280 (1830). _See also_ Phalen _v._
Virginia, 8 How. 163 (1850).

[1715] Stone _v._ Mississippi, 101 U.S. 814 (1880).

[1716] Boston Beer Co. _v._ Massachusetts, 97 U.S. 25 (1878).

[1717] New York C.R. Co. _v._ White, 243 U.S. 188 (1917). In this and
the preceding two cases the legislative act involved did not except from
its operation existing contracts.

[1718] Manigault _v._ Springs, 199 U.S. 473 (1905).

[1719] Portland Railway, Light & Power Co. _v._ Railroad Comm. of
Oregon, 229 U.S. 397 (1913).

[1720] Midland Realty Co. _v._ Kansas City Power & Light Co., 300 U.S.
109 (1937).

[1721] Hudson County Water Co. _v._ McCarter, 209 U.S. 349 (1908).

[1722] Brown (Marcus) Holding Co. _v._ Feldman, 256 U.S. 170, 198
(1921); followed in Levy Leasing Co. _v._ Siegel, 258 U.S. 242 (1922).

[1723] Chastleton Corp. _v._ Sinclair, 264 U.S. 543, 547-548 (1924).

[1724] 290 U.S. 398 (1934).

[1725] Ibid. 442, 444. _See also_ Veix _v._ Sixth Ward Building and Loan
Assn. of Newark, 310 U.S. 32 (1940) in which was sustained a New Jersey
statute, amending, in view of the Depression, the law governing building
and loan associations. The authority of the State to safeguard the vital
interests of the people, said Justice Reed, "is not limited to health,
morals and safety. It extends to economic needs as well." Ibid. 38-39.

[1726] _See_ especially Edwards _v._ Kearzey, 96 U.S. 595 (1878); and
Barnitz _v._ Beverly, 163 U.S. 118 (1896).

[1727] 290 U.S. 398 (1934). As to conditions surrounding the enactment
of moratorium statutes in 1933, _see_ New York Times of January 22,
1933, sec. II, pp. 1-2.

[1728] Worthen Co. _v._ Thomas, 292 U.S. 426 (1934); Worthen Co. _v._
Kavanaugh, 295 U.S. 56 (1935).

[1729] 295 U.S. at 62.

[1730] East New York Savings Bank _v._ Hahn, 326 U.S. 230, 235 (1945).

[1731] Honeyman _v._ Jacobs, 306 U.S. 539 (1939). _See also_ Gelfert
_v._ National City Bank, 313 U.S. 221 (1941).

[1732] 313 U.S. at 233-234.

[1733] One reason for this is indicated in the following passage from
Justice Field's opinion for the Court in Paul _v._ Virginia, decided in
1869: "At the present day corporations are multiplied to an almost
indefinite extent. There is scarcely a business pursued requiring the
expenditure of large capital, or the union of large numbers, that is not
carried on by corporations. It is not too much to say that the wealth
and business of the country are to a great extent controlled by them." 8
Wall. 168, 181-182.

[1734] Wright, The Contract Clause, 91-100.

[1735] Perry _v._ United States, 294 U.S. 330 (1935); Louisville Joint
Stock Bank _v._ Radford, 295 U.S. 555 (1935). The Court has pointed out,
what of course, is evident on a reading of the Constitution, that the
contract clause is a limitation on the powers of the States and not of
the United States. Central P.R. Co. _v._ Gallatin (Sinking Fund Cases),
99 U.S. 700, 718 (1879). _See also_ Mitchell _v._ Clark, 110 U.S. 633,
643 (1884); Legal Tender Cases, 12 Wall. 457, 529 (1871); Continental
Ill. Nat. Bank & Trust Co. _v._ Chicago, R.I. & P.R. Co., 294 U.S. 648
(1935); St. Anthony Falls Water Power Co. _v._ Board of Water
Commissioners, 168 U.S. 349, 372 (1897); Dubuque, S.C.R. Co. _v._
Richmond, 19 Wall. 584 (1874); New York _v._ United States, 257 U.S. 591
(1922). _Cf._ however, Hepburn _v._ Griswold, 8 Wall. 603, 623 (1870);
and Central Pacific R.R. Co. _v._ Gallatin (Sinking Fund Cases), 99 U.S.
700, 737 (1879).

[1736] _See_, e.g., Neblett et al. _v._ Carpenter, et al., 305 U.S. 297
(1938); Asbury Hospital _v._ Cass County, 326 U.S. 207 (1945);
Connecticut Mutual L. Ins. Co. _v._ Moore, 333 U.S. 541 (1948). For a
notable case in which the obligations clause was mustered into service,
by rather heroic logic, to do work that was afterwards put upon the due
process clause, _see_ State Tax On Foreign-Held Bonds, 15 Wall. 300
(1873).

[1737] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 673 (1945).

[1738] Woodruff _v._ Parham, 8 Wall. 123 (1869).

[1739] 12 Wheat. 419 (1827).

[1740] Ibid. 441.

[1741] May & Co. _v._ New Orleans, 178 U.S. 496, 502 (1900).

[1742] Ibid. 501; Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124
(1928); McGoldrick _v._ Gulf Oil Corp., 309 U.S. 414 (1940).

[1743] Low _v._ Austin, 13 Wall. 29 (1872); May & Co. _v._ New Orleans,
178 U.S. 496 (1900).

[1744] Hooven & Allison Co. _v._ Evatt, 324 U.S. 652, 667 (1945).

[1745] Ibid. 664.

[1746] Canton R. Co. _v._ Rogan, 340 U.S. 511 (1951).

[1747] Brown _v._ Maryland, 12 Wheat. 419, 447 (1827).

[1748] Anglo-Chilean Nitrate Sales Corp. _v._ Alabama, 288 U.S. 218
(1933).

[1749] Low _v._ Austin, 13 Wall. 29, 33 (1872).

[1750] Cook _v._ Pennsylvania, 97 U.S. 566, 573, (1878).

[1751] Crew Levick Co. _v._ Pennsylvania, 245 U.S. 292 (1917).

[1752] Cooley _v._ Board of Port Wardens, 12 How. 299, 313 (1851).

[1753] Waring _v._ Mobile, 8 Wall. 110, 122 (1869). _See also_ Pervear
_v._ Massachusetts, 5 Wall. 475, 478 (1867); Schollenberger _v._
Pennsylvania, 171 U.S. 1, 24 (1898).

[1754] Gulf Fisheries Co. _v._ MacInerney, 276 U.S. 124 (1928).

[1755] Nathan _v._ Louisiana, 8 How. 73, 81 (1850).

[1756] Mager _v._ Grima, 8 How. 490 (1850).

[1757] Brown _v._ Maryland, 12 Wheat. 419, 441 (1827); Hooven & Allison
Co. _v._ Evatt, 324 U.S. 652 (1945).

[1758] New York ex rel. Burke _v._ Wells, 208 U.S. 14 (1908).

[1759] Selliger _v._ Kentucky, 213 U.S. 200 (1909); _cf._ Almy _v._
California, 24 How. 169, 174 (1861).

[1760] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488 (1888).

[1761] 107 U.S. 38 (1883).

[1762] Ibid. 55.

[1763] Patapsco Guano Co. _v._ North Carolina Bd. of Agriculture, 171
U.S. 345, 301 (1898). For a discussion of the limitations on State power
to pass inspection laws resulting from the commerce clause, _see_ pp.
183, 237.

[1764] Bowman _v._ Chicago & N.W.R. Co., 125 U.S. 465, 488-489 (1888).

[1765] Clyde Mallory Lines _v._ Alabama ex rel. State Docks Commission,
296 U.S. 261, 265 (1935); Cannon _v._ New Orleans, 20 Wall. 577, 581
(1874); Wheeling, P. & C. Transportation Co. _v._ Wheeling, 99 U.S. 273,
283 (1879).

[1766] Keokuk Northern Line Packet Co. _v._ Keokuk, 95 U.S. 80 (1877);
Parkersburg & Ohio River Transportation Co. _v._ Parkersburg, 107 U.S.
691 (1883); Ouachita Packet Co. _v._ Aiken, 121 U.S. 444 (1887).

[1767] Cooley _v._ Board of Port Wardens, 12 How. 299, 314 (1851); Ex
parte McNiel, 13 Wall. 236 (1872); Inman Steamship Co. _v._ Tinker, 94
U.S. 238, 243 (1877); Northwestern Union Packet Co. _v._ St. Louis, 100
U.S. 423 (1880); Vicksburg _v._ Tobin, 100 U.S. 430 (1880); Cincinnati,
P.B.S. & P. Packet Co. _v._ Catlettsburg, 105 U.S. 559 (1882).

[1768] Huse _v._ Glover, 119 U.S. 543, 549 (1886).

[1769] Southern S.S. Co. _v._ Portwardens, 6 Wall. 31 (1867).

[1770] Peete _v._ Morgan, 19 Wall. 581 (1874).

[1771] Morgan's L. & T.R. & S.S. Co. _v._ Board of Health, 118 U.S. 455,
462 (1886).

[1772] Wiggins Ferry Co. _v._ East St. Louis, 107 U.S. 365 (1883). _See
also_ Gloucester Ferry Co. _v._ Pennsylvania, 114 U.S. 196, 212 (1885);
Philadelphia & S. Mail Steamship Co. _v._ Pennsylvania, 122 U.S. 326,
338 (1887); Osborne _v._ Mobile, 16 Wall. 479, 481 (1873).

[1773] Cox _v._ Lott (State Tonnage Tax Cases), 12 Wall. 204, 217
(1871).

[1774] Luther _v._ Borden, 7 How. 1, 45 (1849).

[1775] Presser _v._ Illinois, 116 U.S. 252 (1886).

[1776] Poole _v._ Fleeger, 11 Pet 185, 209 (1837).

[1777] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104 (1938).

[1778] Frankfurter and Landis, The Compact Clause of the Constitution--A
Study in Interstate Adjustments, 34 Yale Law Journal, 685, 691 (1925).

[1779] Article IX.

[1780] Article VI.

[1781] 14 Pet. 540 (1840).

[1782] Ibid. 570, 571, 572.

[1783] 148 U.S. 503, 518 (1893). _See also_ Stearns _v._ Minnesota, 179
U.S. 223, 244 (1900); _also_ reference in next note, at pp. 761-762.

[1784] _See_ Leslie W. Dunbar, Interstate Compacts and Congressional
Consent, 36 Virginia Law Review, 753 (October, 1950).

[1785] Frankfurter and Landis, The Compact Clause of the Constitution--A
Study in Interstate Adjustments, 34 Yale Law Journal, 685, 735 (1925);
Frederick L. Zimmerman and Mitchell Wendell, Interstate Compacts Since
1925 (1951), 8 Book of States, 26 (1950-1951).

[1786] 48 Stat. 909 (1934).

[1787] 8 Book of the States, 45 (1950-1951).

[1788] 7 U.S.C. § 515; 15 U.S.C. § 717j; 16 U.S.C. §§ 552, 667a; 33
U.S.C. §§ 11, 567-567b.

[1789] Green _v._ Biddle, 8 Wheat. 1, 85 (1823).

[1790] Virginia _v._ Tennessee, 148 U.S. 503 (1893).

[1791] Virginia _v._ West Virginia, 11 Wall. 39 (1871).

[1792] Wharton _v._ Wise, 153 U.S. 155, 173 (1894).

[1793] James _v._ Dravo Contracting Co., 302 U.S. 134 (1937). _See also_
Arizona _v._ California, 292 U.S. 341, 315 (1934).

[1794] 332 U.S. 631 (1948).

[1795] On the activities of the Board, in which representatives of both
races participate and from which both races have benefited, _see_
Remarks of Hon. Spessard L. Holland of Florida. Cong. Rec., 81st Cong.,
2d sess., v. 96, p. 465-470.

[1796] Pennsylvania _v._ Wheeling & Belmont Bridge Co., 18 How. 421, 433
(1856).

[1797] St. Louis & S.F.R. Co. _v._ James, 161 U.S. 545, 562 (1896).

[1798] Poole _v._ Fleeger, 11 Pet. 185, 209 (1837); Rhode Island _v._
Massachusetts, 12 Pet. 657, 725 (1838).

[1799] Hinderlider _v._ La Plata Co., 304 U.S. 92, 104, 106 (1938).

[1800] Green _v._ Biddle, 8 Wheat. 1, 13 (1823); Virginia _v._ West
Virginia, 246 U.S. 565 (1918). _See also_ Pennsylvania _v._ Wheeling &
Belmont Bridge Co., 13 How. 518, 566 (1852); Olin _v._ Kitzmiller, 259
U.S. 260 (1922).

[1801] Virginia _v._ West Virginia, 246 U.S. 565, 601 (1918).

[1802] Dyer _v._ Sims, 341 U.S. 22 (1951). The case stemmed from
mandamus proceedings brought to compel the auditor of West Virginia to
pay out money to a commission which had been created by a compact
between West Virginia and other States to control pollution of the Ohio
River. The decision of the Supreme Court of Appeals of West Virginia
denying mandamus was reversed by the Supreme Court, and the case
remanded. The opinion of the Court, by Justice Frankfurter, reviews and
revises the West Virginia Court's interpretation of the State
constitution, thereby opening up, temporarily at least, a new field of
power for judicial review. Justice Reed, challenging this extension of
judicial review, thought the issue determined by the Supremacy Clause.
Justice Jackson urged that the compact power was "inherent in
sovereignty" and hence was limited only by the requirement of
congressional consent. Justice Black concurred in the result without
opinion.




ARTICLE II

EXECUTIVE DEPARTMENT


Section 1. The President:                                       Page
  Clause 1. Powers and term of the President                     377
    Nature and scope of Presidential power                       377
      Contemporary source of the Presidency                      377
      Presidency in the federal convention                       378
      Executive power; Hamilton's contribution                   378
      Myers case                                                 379
      Curtiss-Wright case                                        380
      Theory of the Presidential office                          380
      Term of four years                                         382
      Anti-third term tradition                                  382
  Clauses 2, 3, 4, 5, 6, 7, and 8. Election, qualifications,
      succession, compensation, and oath of the President        383
    Maintenance of the office of President                       384
      "Electoral college"                                        384
      Constitutional status of electors                          385
      "Natural-born citizen"                                     386
      Presidential succession                                    387
        Act of 1792                                              387
        Acts of 1886 and 1947                                    388
      Compensation and emoluments                                388
      Oath of office                                             388
        Effect of the oath                                       389
Section 2. Powers and duties of the President                    389
  Clause 1. Commander in chiefship; opinions from heads of
      departments; pardons                                       389
    Commander in chiefship                                       389
      Historical                                                 389
      Prize cases                                                390
      Impact of the Prize cases on World Wars I and II           391
      Presidential theory of the commander in chiefship in
        World War II                                             392
      Presidential war agencies                                  393
      Constitutional status of Presidential agencies             394
      West Coast Japanese                                        394
        Act of March 21, 1942                                    395
      Presidential government of labor relations                 395
      "Sanctions"                                                397
      Constitutional basis of sanctions                          397
      Martial law and constitutional limitations                 398
      Martial law in Hawaii                                      400
      Case of the Nazi saboteurs                                 401
      War crimes cases                                           402
      President as commander of the forces                       403
      Commander in chief a civilian officer                      404
    Presidential advisers                                        405
      The Cabinet                                                405
    Pardons and reprieves                                        406
      Legal nature of a pardon                                   406
        Qualification of above theory                            407
      Scope of the power                                         408
      "Offenses against the United States"; contempt of court    408
      Effects of a pardon: Ex parte Garland                      409
      Limits to the efficacy of a pardon                         410
      Congress and Amnesty                                       411
  Clauses 2 and 3. Treaties and appointment of officers          412
    Treaty-making power                                          412
      President and Senate                                       412
      Negotiation a Presidential monopoly                        412
      Treaties as law of the land                                413
        Origin of the conception                                 414
      Treaty rights versus State power                           415
        Recent cases                                             417
      When is a treaty self-executing; when not                  417
      Constitutional freedom of Congress with respect to
          treaties                                               418
      Treaty-making power and revenue laws                       419
      Congressional repeal of treaties                           420
      Treaties versus prior acts of Congress                     421
      Interpretation and termination of treaties as
         international compacts                                  423
      Termination of treaties by notice                          423
      Determination whether a treaty has lapsed                  425
      Status of a treaty a political question                    426
      Treaties and the "necessary and proper" clause             426
      Constitutional limits of the treaty-making power:
          Missouri _v._ Holland                                  428
      Indian treaties                                            431
        Present status of Indian treaties                        432
    International Agreements without Senate approval             433
      Routine executive agreements                               433
      Law-making executive agreements                            434
      President McKinley's contribution                          435
      Executive agreements affecting Far Eastern Relations       436
      International obligation of executive agreements           436
      Litvinov agreement of 1933                                 437
        United States _v._ Belmont                               437
        United States _v._ Pink; National supremacy              438
      Hull-Lothian agreement, 1940                               439
      War-time agreements                                        440
      Executive agreements by authorization of Congress          441
        Reciprocal trade agreements                              441
        Constitutionality of trade agreements                    442
        Lend-Lease Act                                           443
      President plus Congress versus Senate                      443
      Arbitration agreements                                     444
      Agreements under the United Nations Charter                444
        United Nations Participation Act                         445
    Executive establishment                                      445
      "Office"                                                   445
      "Ambassadors and other public ministers"                   445
      Presidential diplomatic agents                             447
      Congressional regulation of offices                        449
      Conduct in office                                          450
      The loyalty issue                                          451
      Legislation increasing duties of an officer                452
      "Inferior officers"; "employees"                           452
      Stages of appointment process                              453
        Nomination                                               453
        Senate approval                                          453
        When Senate consent is complete                          453
        Commissioning the officer                                454
      Recess appointments                                        455
      Ad interim designations                                    455
      Removal power; Myers case                                  455
        "Nature of the office" concept                           458
        Humphrey case                                            458
        Other phases of the removal power                        459
      Presidential aegis                                         460
Section 3. Legislative, diplomatic, and law enforcement duties
    of the President                                             462
  Legislative role of the President                              462
  Right of Reception                                             463
    Scope of the power                                           463
    A Presidential monopoly                                      464
    "The Logan Act"                                              464
    A formal or a formative power                                465
    President's diplomatic role                                  465
    Jefferson's real position                                    466
    Power of recognition                                         467
      The case of Cuba                                           468
    Power of nonrecognition                                      469
    President and Congress                                       470
    Congressional implementation of Presidential policies        471
    Doctrine of political questions                              471
      Recent statements of the doctrine                          473
  The President as law enforcer                                  475
    Types of executive power                                     475
    How the President's own powers are exercised                 476
    Power and duty of the President in relation to subordinate
        executive officers                                       478
    Administrative Decentralization _v._ Jacksonian
        Centralism                                               478
    Congressional Power _v._ Presidential Duty to the Law        479
    Myers Case _v._ Humphrey Case                                480
    Power of the President to guide enforcement of the penal
        law                                                      481
    President as law interpreter                                 481
    Military power in law enforcement: the posse comitatus       482
    Suspension of Habeas Corpus by President                     484
    Preventive martial law                                       484
    Debs case                                                    484
    Status of the Debs case, today                               485
    President's duty in cases of domestic violence               486
    President as executive of the law of nations                 486
    Protection of American rights of person and property abroad  487
    Presidential world policing                                  488
      The Atlantic Pact                                          488
    Presidential action in the domain of Congress: Steel
        Seizure Case                                             489
    Presidential immunity from judicial direction                499
    President's subordinates and the courts                      500
Section 4. Impeachment                                           501
  Impeachment                                                    501
    "Civil" officer                                              501
    "High crimes and misdemeanors"                               502
    Chase impeachment                                            502
    Johnson impeachment                                          503
    Later impeachments                                           503


EXECUTIVE DEPARTMENT


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:


The Nature and Scope of Presidential Power


CONTEMPORARY SOURCE OF THE PRESIDENCY

The immediate source of article II was the New York constitution of
1777,[1] of which the relevant provisions are the following: "Art.
XVIII. * * * The governor * * * shall by virtue of his office, be
general and commander in chief of all the militia, and admiral of the
navy of this state; * * * he shall have power to convene the assembly
and senate on extraordinary occasions; to prorogue them from time to
time, provided such prorogations shall not exceed sixty days in the
space of any one year; and, at his discretion, to grant reprieves and
pardons to persons convicted of crimes, other than treason and murder,
in which he may suspend the execution of the sentence, until it shall be
reported to the legislature at their subsequent meeting; and they shall
either pardon or direct the execution of the criminal, or grant a
further reprieve.

"Art. XIX. * * * It shall be the duty of the governor to inform the
legislature at every session of the condition of the State so far as may
concern his department; to recommend such matters to their consideration
as shall appear to him to concern its good government, welfare, and
prosperity; to correspond with the Continental Congress and other
States; to transact all necessary business with the officers of
government, civil and military; to take care that the laws are executed
to the best of his ability; and to expedite all such measures as may be
resolved upon by the legislature.

"To these, of course, are to be added the important powers of qualified
appointment and qualified veto. It is to be observed also that there is
no question of the interposition of the law of the land to regulate
these powers. They are the governor's, by direct grant of the people,
and his alone. Another distinguishing characteristic, equally important,
is the fact that the governor was to be chosen by a constitutionally
defined electorate, not by the legislature. He was also to have a
three-year term, and there were to be no limitations on his
re-eligibility to office. In short, all the isolated principles of
executive strength in other constitutions were here brought into a new
whole. Alone they were of slight importance; gathered together they gain
new meaning. And, in addition, we have new elements of strength utilized
for the first time on the American continent."[2] The appellation
"President" appears to have been suggested to the Federal Convention by
Charles Pinckney,[3] to whom it may have been suggested by the title at
that date of the chief magistrate of Delaware.


THE PRESIDENCY IN THE FEDERAL CONVENTION

The relevant clause in the Report from the Committee of Detail of August
6, 1787 to the Federal Convention read as follows: "The Executive Power
of the United States shall be vested in a single person. His stile shall
be 'The President of the United States of America'; and his title shall
be 'His Excellency.'"[4] This language recorded the decision of the
Convention, sitting in committee of the whole, that the national
executive power should be vested in a single person, not a body. For the
rest, it is a simple designation of office. The final form of the clause
came from the Committee of Style,[5] and was never separately acted on
by the Convention.


"EXECUTIVE POWER"; HAMILTON'S CONTRIBUTION

Is this term a summary description merely of the powers which are
granted in more specific terms in succeeding provisions of article II,
or is it also a grant of powers; and if the latter, what powers
specifically does it comprise? In the debate on the location of the
removal power in the House of Representatives in 1789[6] Madison and
others urged that this was "in its nature" an "executive power";[7] and
their view prevailed so far as executive officers appointed without
stated term by the President, with the advice and consent of the Senate,
were concerned. Four years later Hamilton, in defending President
Washington's course in issuing a Proclamation of Impartiality upon the
outbreak of war between France and Great Britain, developed the
following argument: "The second article of the Constitution of the
United States, section first, establishes this general proposition, that
'the Executive Power shall be vested in a President of the United States
of America.' The same article, in a succeeding section, proceeds to
delineate particular cases of executive power. It declares, among other
things, that the president shall be commander in chief of the army and
navy of the United States, and of the militia of the several states,
when called into the actual service of the United States; that he shall
have power, by and with the advice and consent of the senate, to make
treaties; that it shall be his duty to receive ambassadors and other
public ministers, _and to take care that the laws be faithfully
executed._ It would not consist with the rules of sound construction, to
consider this enumeration of particular authorities as derogating from
the more comprehensive grant in the general clause, further than as it
may be coupled with express restrictions or limitations; as in regard to
the co-operation of the senate in the appointment of officers, and the
making of treaties; which are plainly qualifications of the general
executive powers of appointing officers and making treaties. The
difficulty of a complete enumeration of all the cases of executive
authority, would naturally dictate the use of general terms, and would
render it improbable that a specification of certain particulars was
designed as a substitute for those terms, when antecedently used. The
different mode of expression employed in the constitution, in regard to
the two powers, the legislative and the executive, serves to confirm
this inference. In the article which gives the legislative powers of the
government, the expressions are, 'All legislative powers herein granted
shall be vested in a congress of the United States.' In that which
grants the executive power, the expressions are, 'The _executive power_
shall be vested in a President of the United States.' The enumeration
ought therefore to be considered, as intended merely to specify the
principal articles implied in the definition of executive power; leaving
the rest to flow from the general grant of that power, interpreted in
conformity with other parts of the Constitution, and with the principles
of free government. The general doctrine of our Constitution then is,
that the _executive power_ of the nation is vested in the President;
subject only to the _exceptions_ and _qualifications_, which are
expressed in the instrument."[8]


THE MYERS CASE

These enlarged conceptions of the executive power clause have been
ratified by the Supreme Court within recent times. In the Myers case,[9]
decided in 1926, not only was Madison's contention as to the location
of the removal power adopted, and indeed extended, but Hamilton's
general theory as to the proper mode of construing the clause was
unqualifiedly endorsed. Said Chief Justice Taft, speaking for the Court:
"The executive power was given in general terms, strengthened by
specific terms where emphasis was regarded as appropriate, and was
limited by direct expressions where limitation was needed, * * *"[10]


THE CURTISS-WRIGHT CASE

Ten years later Justice Sutherland, speaking for the Court in United
States _v._ Curtiss-Wright Corporation,[11] joined Hamilton's conception
of the President's role in the foreign relations field to the conception
that in this field the National Government is not one of enumerated but
of inherent powers;[12] and the practical conclusion he drew was that
the constitutional objection to delegation of legislative power does not
apply to a delegation by Congress to the President of its "cognate"
powers in this field; that, in short, the merged powers of the two
departments may be put at the President's disposal whenever Congress so
desires.[13]

Nor is it alone in the field of foreign relations that the opening
clause of article II has promoted latitudinarian conceptions of
Presidential power. Especially has his role as "Commander in Chief in
wartime" drawn nourishment from the same source, in recent years. The
matter is treated in later pages.[14]


THEORY OF THE PRESIDENTIAL OFFICE

The looseness of the grants of power to the President has been more than
once the subject of animadversion.[15] This and the unity of the office
furnished a text for opponents of the Constitution while its
ratification was pending. "Here," according to Hamilton, writing in The
Federalist, "the writers against the Constitution, seem to have taken
pains to signalize their talent of misrepresentation."[16] Once the
Constitution was adopted, however, the tables were turned, and some
members of the first Congress, including certain former members of the
Federal Convention, sought to elaborate the monarchical aspects of the
office. They would fain give him a title, _His Excellency_ (already
applied in several States to the governors thereof), _Highness_,
_Elective Majesty_, being suggestions. Ellsworth of Connecticut wished
to see his _name or place_ inserted in the enacting clause of statutes.
They contrived to make a ceremony of the President's appearances before
Congress, his annual address to which, given in person, was answered by
a reply equally formal.[17] They sought to enact that "all writs and
processes, issuing out of the Supreme or circuit courts shall be in the
name of the President of the United States." Although the attempt
failed, owing to opposition in the House, the idea was adopted by the
Supreme Court itself in its first term, that of February 1790, when it
"_ordered_, That (unless, and until, it shall be otherwise provided by
law) all process of this court shall be in the name of 'the President of
the United States,'"[18] and it has never been otherwise provided by
law. Meantime, on October 3, 1789, President Washington had, at the
request of a joint committee of "both Houses of Congress," issued the
first Thanksgiving Proclamation.[19]

The "revolution of 1800" was, in the opinion of its principal author, a
revolution against monarchical tendencies, and making a virtue of the
fact that he was a bad public speaker, Jefferson, in a symbolic gesture,
substituted the written message for the presidential address. But the
claims of the presidential office to power Jefferson in no wise
abated,[20] although Marshall had predicted that he would;[21] to the
contrary he in some respects enlarged upon them. After his day, however,
the office passed into temporary eclipse behind its own creature, the
Cabinet,[22] an ignominy from which Andrew Jackson rescued it. As "the
People's Choice," as all by himself "one of the three _equal_
departments of government,"[23] as the leader of his party, as the
embodiment of the unity of the country,[24] Jackson stamped upon the
Presidency the outstanding features of its final character, thereby
reviving, in the opinion of Henry Jones Ford, "the oldest political
institution of the race, the elective Kingship."[25] The modern theory
of Presidential power was the contribution primarily of Alexander
Hamilton; the modern conception of the Presidential office was the
contribution primarily of Andrew Jackson and his times.


"THE TERM OF FOUR YEARS"

Formerly the term of four years during which the President "shall hold
office" was reckoned from March 4 of the alternate odd years beginning
with 1789. This came about from the circumstance that under the act of
September 13, 1788, of "the Old Congress," the first Wednesday in March,
which was March 4, 1789, was fixed as the time for commencing
proceedings under the said Constitution. Although as a matter of fact
Washington was not inaugurated until April 30 of that year, by an act
approved March 1, 1792, it was provided that the presidential term
should be reckoned from the fourth day of March next succeeding the date
of election. And so things stood until the adoption of the Twentieth
Amendment by which the terms of the President and Vice President end at
noon on the 20th of January.[26]


THE ANTI-THIRD TERM TRADITION

The prevailing sentiment of the Philadelphia Convention favored the
indefinite eligibility of the President. It was Jefferson who raised the
objection that indefinite eligibility would in fact be for life and
degenerate into an inheritance. Prior to 1940 the idea that no President
should hold for more than two terms was generally thought to be a fixed
tradition, although some quibbles had been raised as to the meaning of
the word "term". President Franklin D. Roosevelt's violation of the
tradition led to the proposal by Congress on March 24, 1947, of an
amendment to the Constitution to rescue the tradition by embodying it in
the Constitutional Document. The proposal became a part of the
Constitution on February 27, 1951, in consequence of its adoption by the
necessary thirty-sixth State, which was Minnesota. _See_ pp. 54,
1236.[Transcriber's Note: Page 1236 is blank.][27]


Clause 2. 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.

Clause 3. 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
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.

Clause 4. 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.

Clause 5. 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.

Clause 6. 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.

Clause 7. 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.

Clause 8. 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."


Maintenance of the Office of President


"THE ELECTORAL COLLEGE"

The word "appoint" is used in clause 2 "as conveying the broadest power
of determination."[28] This power has been used. "Therefore, on
reference to contemporaneous and subsequent action under the clause, we
should expect to find, as we do, that various modes of choosing the
electors were pursued, as, by the legislature itself on joint ballot; by
the legislature through a concurrent vote of the two houses; by vote of
the people for a general ticket; by vote of the people in districts; by
choice partly by the people voting in districts and partly by
legislature; by choice by the legislature from candidates voted for by
the people in districts; and in other ways, as, notably, by North
Carolina in 1792, and Tennessee in 1796 and 1800. No question was raised
as to the power of the State to appoint, in any mode its legislature saw
fit to adopt, and none that a single method, applicable without
exception, must be pursued in the absence of an amendment to the
Constitution. The district system was largely considered the most
equitable, and Madison wrote that it was that system which was
contemplated by the framers of the Constitution, although it was soon
seen that its adoption by some States might place them at a disadvantage
by a division of their strength, and that a uniform rule was
preferable."[29] In the Federal Convention James Wilson had proposed
that the Electors be "taken by lot from the national Legislature," but
the suggestion failed to come to a vote.[30]


CONSTITUTIONAL STATUS OF ELECTORS

Dealing with the question of the constitutional status of the Electors,
the Court said in 1890: "The sole function of the presidential electors
is to cast, certify and transmit the vote of the State for President and
Vice President of the nation. Although the electors are appointed and
act under and pursuant to the Constitution of the United States, they
are no more officers or agents of the United States than are the members
of the State legislatures when acting as electors of federal senators,
or the people of the States when acting as electors of representatives
in Congress. * * * In accord with the provisions of the Constitution,
Congress has determined the time as of which the number of electors
shall be ascertained, and the days on which they shall be appointed and
shall meet and vote in the States, and on which their votes shall be
counted in Congress; has provided for the filling by each State, in such
manner as its legislature may prescribe, of vacancies in its college of
electors; and has regulated the manner of certifying and transmitting
their votes to the seat of the national government, and the course of
proceeding in their opening and counting them."[31] The truth of the
matter is that the Electors are not "officers" at all, by the usual
tests of office.[32] They have neither tenure nor salary, and having
performed their single function they cease to exist as Electors. This
function is, moreover, "a federal function,"[33] their capacity to
perform which results from no power which was originally resident in the
States, but springs directly from the Constitution of the United
States.[34] In the face, therefore, of the proposition that Electors are
State officers, the Court has upheld the power of Congress to protect
the right of all citizens who are entitled to vote to lend aid and
support in any legal manner to the election of any legally qualified
person as a Presidential Elector;[35] and more recently its power to
protect the choice of Electors from fraud or corruption.[36] "'If this
government,' said the Court, 'is anything more than a mere aggregation
of delegated agents of other States and governments, each of which is
superior to the general government, it must have the power to protect
the elections on which its existence depends from violence and
corruption. If it has not this power it is left helpless before the two
great natural and historical enemies of all republics, open violence and
insidious corruption.'"[37] The conception of Electors as State officers
is still, nevertheless, of some importance, as was shown in the recent
case of Ray _v._ Blair,[38] which is dealt with in connection with
Amendment XII.[39]


"NATURAL-BORN" CITIZEN

Clause 3 of this section, while requiring that the Electors each vote
for two persons, did not require them to distinguish their choices for
President and Vice President, the assumption being that the Vice
President would be the runner-up of the successful candidate for
President. As a result of this arrangement the election of 1800 produced
a dangerous tie between Jefferson and Burr, the candidates of the
Republican-Democrat Party for President and Vice President respectively.
Amendment XII, which was adopted in 1803 and replaces clause 3, makes a
recurrence of the 1800 contretemps impossible. _See_ pp. 941-942. Clause
4 testifies still further to the national character of Presidential
Electors. Clause 5 is today chiefly of historical interest, all
Presidents since, and including Martin Van Buren, except his immediate
successor, William Henry Harrison, having been born in the United States
subsequently to the Declaration of Independence. The question, however,
has been frequently mooted, whether a child born abroad of American
parents is "a natural-born citizen" in the sense of this clause. The
answer depends upon whether the definition of "citizens of the United
States" in section I of Amendment XIV is to be given an exclusive or
inclusive interpretation. _See_ pp. 963-964.


PRESIDENTIAL SUCCESSION

Was it the thought of the Constitution that a Vice President, in
succeeding to "the powers and duties" of the office of President, should
succeed also to the title? In answering this question in the affirmative
in 1841, John Tyler established a precedent which has been followed ever
since; but inasmuch as all successions have taken place in consequence
of the death in office of a President, the precedent would not
necessarily hold in the case of a succession on account of the temporary
inability of the incumbent President. Nor has any procedure been
established for determining the question of inability, with the result
that in the two instances of disability which have occurred, those of
Presidents Garfield and Wilson, the former continued in office until his
death and the other, after his partial recovery, till the end of his
term.


The Act of 1792

In pursuance of its power to provide for the disappearance, whether
permanently or temporarily, from the scene of both President and Vice
President, Congress has passed three Presidential Succession Acts. A law
enacted March 1, 1792[40] provided for the succession first of the
President _pro tempore_ of the Senate and then of the Speaker; but in
the event that both of these offices were vacant, then the Secretary of
State was to inform the executive of each State of the fact and at the
same time give public notice that Electors will be appointed in each
State to elect a President and Vice President, unless the regular time
of such election was so near at hand as to render the step unnecessary.
It is unlikely that Congress ever passed a more ill-considered law. As
Madison pointed out at the time, it violated the principle of the
Separation of Powers and flouted the probability that neither the
President _pro tempore_ nor the Speaker is an "officer" in the sense of
this paragraph of the Constitution. It thus contemplated the possibility
of there being nobody to exercise the powers of the President for an
indefinite period, and at the same time set at naught, by the provision
made for an interim presidential election, the synchrony evidently
contemplated by the Constitution in the choice of a President with a new
House of Representatives and a new one-third of the Senate. Yet this
inadequate enactment remained on the statute book for nearly one
hundred years, becoming all the time more and more unworkable from
obsolescence. One provision of it, moreover, still survives, that which
ordains that the only evidence of refusal to accept, or of resignation
from the office of President or Vice President, shall be an instrument
in writing declaring the same and subscribed by the person refusing to
accept, or resigning, as the case may be, and delivered into the office
of the Secretary of State.[41]


The Acts of 1886 and 1947

By the Presidential Succession Act of January 19, 1886,[42] recently
repealed, Congress provided that, in case of the disqualification of
both President and Vice President, the Secretary of State should act as
President provided he possessed the qualifications laid down in clause
5, above; if not, then the Secretary of the Treasury, etc. The act
apparently assumed that while a member of the Cabinet acted as President
he would retain his Cabinet post. The Succession Act now in force was
urged by President Truman, who argued that it was "undemocratic" for a
Vice President who had succeeded to the Presidency to be able to appoint
his own successor. By the act of July 18, 1947[43] the Speaker of the
House and the President _pro tempore_ of the Senate are put ahead of the
members of the Cabinet in the order of succession, but when either
succeeds he must resign both his post and his seat in Congress; and a
member of the Cabinet must in the like situation resign his Cabinet
post. The new act also implements Amendment XX by providing for
vacancies due to failure to qualify of both a newly elected President
and Vice President.


COMPENSATION AND EMOLUMENTS

Clause 7 may be advantageously considered in the light of what has been
determined as to the application of the parallel provision regarding
judicial salaries. _See_ pp. 530-531.[44]


OATH OF OFFICE

What is the time relationship between a President's assumption of office
and his taking the oath? Apparently the former comes first. This answer
seems to be required by the language of the clause itself, and is
further supported by the fact that, while the act of March 1, 1792
assumes that Washington became President March 4, 1789, he did not take
the oath till April 30th. Also, in the parallel case of the coronation
oath of the British Monarch, its taking has been at times postponed for
years after the heir's succession.


Effect of the Oath

Does the oath add anything to the President's powers? Again to judge
from its English-British antecedent, its informing purpose is to
restrain rather than to aggrandize power. Jackson, it is true, appealed
to the oath in his Bank Veto Message of July 10, 1832; and Lincoln did
so in his Message of July 4, 1861; as did Johnson's counsel in his
impeachment trial; but in each of these instances the Presidential
exercise of power involved rested primarily on other grounds.


Section 2. Clause 1. 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.


The Commander in Chiefship


HISTORICAL

The purely military aspects of the Commander in Chiefship were those
which were originally stressed. Hamilton said the office "would amount
to nothing more than the supreme command and direction of the Military
and naval forces, as first general and admiral of the confederacy."[45]
Story wrote in his Commentaries: "The propriety of admitting the
president to be commander in chief, so far as to give orders, and have a
general superintendency, was admitted. But it was urged, that it would
be dangerous to let him command in person, without any restraint, as he
might make a bad use of it. The consent of both houses of Congress
ought, therefore, to be required, before he should take the actual
command. The answer then given was, that though the president might,
there was no necessity that he should, take the command in person; and
there was no probability that he would do so, except in extraordinary
emergencies, and when he was possessed of superior military
talents."[46] In 1850 Chief Justice Taney, for the Court, said: "His
[the President's] duty and his power are purely military. As commander
in chief, he is authorized to direct the movements of the naval and
military forces placed by law at his command, and to employ them in the
manner he may deem most effectual to harass and conquer and subdue the
enemy. He may invade the hostile country, and subject it to the
sovereignty and authority of the United States. But his conquests do not
enlarge the boundaries of this Union, nor extend the operation of our
institutions and laws beyond the limits before assigned to them by the
legislative power. * * * But in the distribution of political power
between the great departments of government, there is such a wide
difference between the power conferred on the President of the United
States, and the authority and sovereignty which belong to the English
crown, that it would be altogether unsafe to reason from any supposed
resemblance between them, either as regards conquest in war, or any
other subject where the rights and powers of the executive arm of the
government are brought into question."[47] Even after the Civil War a
powerful minority of the Court described the role of President as
Commander in Chief simply as "the command of the forces and the conduct
of campaigns."[48]


THE PRIZE CASES

The basis for a broader conception was laid in certain early acts of
Congress authorizing the President to employ military force in the
execution of the laws.[49] In his famous message to Congress of July 4,
1861,[50] Lincoln advanced the claim that the "war power" was his for
the purpose of suppressing rebellion; and in the Prize Cases[51] of
1863, a sharply divided Court sustained this theory. The immediate issue
of the case was the validity of the blockade which the President,
following the attack on Fort Sumter, had proclaimed of the Southern
ports.[52] The argument was advanced that a blockade to be valid must be
an incident of a "public war" validly declared, and that only Congress
could, by virtue of its power "to declare war," constitutionally impart
to a military situation this character and scope. Speaking for the
majority of the Court, Justice Grier answered: "If a war be made by
invasion of a foreign nation, the President is not only authorized but
bound to resist force by force. He does not initiate the war, but is
bound to accept the challenge without waiting for any special
legislative authority. And whether the hostile party be a foreign
invader, or States organized in rebellion, it is none the less a war,
although the declaration of it be '_unilateral_.' Lord Stowell (1
Dodson, 247) observes, 'It is not the less a war on _that account_, for
war may exist without a declaration on either side. It is so laid down
by the best writers on the law of nations. A declaration of war by one
country only is not a mere challenge to be accepted or refused at
pleasure by the other.' The battles of Palo Alto and Resaca de la Palma
had been fought before the passage of the act of Congress of May 13,
1846, which recognized '_a state of war as existing by the act of the
Republic of Mexico_.' This act not only provided for the future
prosecution of the war, but was itself a vindication and ratification of
the Act of the President in accepting the challenge without a previous
formal declaration of war by Congress. This greatest of civil wars was
not gradually developed by popular commotion, tumultuous assemblies, or
local unorganized insurrections. However long may have been its previous
conception, it nevertheless sprung forth suddenly from the parent brain,
a Minerva in the full panoply of _war_. The President was bound to meet
it in the shape it presented itself, without waiting for Congress to
baptize it with a name; and no name given to it by him or them could
change the fact. * * * Whether the President in fulfilling his duties,
as Commander in Chief, in suppressing an insurrection, has met with such
armed hostile resistance, and a civil war of such alarming proportions
as will compel him to accord to them the character of belligerents, is a
question to be decided _by him_, and this Court must be governed by the
decisions and acts of the political department of the Government to
which this power was entrusted. 'He must determine what degree of force
the crisis demands.' The proclamation of blockade is itself official and
conclusive evidence to the Court that a state of war existed which
demanded and authorized a recourse to such a measure, under the
circumstances peculiar to the case."[53]


IMPACT OF THE PRIZE CASES ON WORLD WARS I AND II

In brief, the powers claimable for the President under the Commander in
Chief clause at a time of wide-spread insurrection were equated with his
powers under the clause at a time when the United States is engaged in a
formally declared foreign war; and--impliedly--vice versa. And since
Lincoln performed various acts especially in the early months of the
Civil War which, like increasing the Army and Navy, admittedly fell
within the constitutional province of Congress, it seems to have been
assumed during World War I and World War II that the Commander in
Chiefship carries with it the power to exercise like powers practically
at discretion; and not merely in wartime but even at a time when war
becomes a strong possibility. Nor was any attention given the fact that
Lincoln had asked Congress to ratify and confirm his acts, which
Congress promptly did,[54] with the exception of his suspension of the
_habeas corpus_ privilege which was regarded by many as attributable to
the President in the situation then existing, by virtue of his duty to
take care that the laws be faithfully executed.[55] Nor is this the only
respect in which war or the approach of war operates to enlarge the
scope of power which is claimable by the President as Commander in Chief
in wartime.[56] For at such time the maxim that Congress may not
delegate its powers is, by the doctrine of the Curtiss-Wright case,[57]
in a state of suspended animation.[58]


PRESIDENTIAL THEORY OF THE COMMANDER IN CHIEFSHIP IN WORLD WAR II

In his message of September 7, 1942 to Congress, in which he demanded
that Congress forthwith repeal certain provisions of the Emergency Price
Control Act of the previous January 30th,[59] the late President
Roosevelt formulated his conception of his powers as "Commander in Chief
in wartime" as follows:

"I ask the Congress to take this action by the first of October.
Inaction on your part by that date will leave me with an inescapable
responsibility to the people of this country to see to it that the war
effort is no longer imperiled by threat of economic chaos.

"In the event that the Congress should fail to act, and act adequately,
I shall accept the responsibility, and I will act.

"At the same time that farm prices are stabilized, wages can and will be
stabilized also. This I will do.

"The President has the powers, under the Constitution and under
Congressional acts, to take measures necessary to avert a disaster which
would interfere with the winning of the war.

"I have given the most thoughtful consideration to meeting this issue
without further reference to the Congress. I have determined, however,
on this vital matter to consult with the Congress. * * *

"The American people can be sure that I will use my powers with a full
sense of my responsibility to the Constitution and to my country. The
American people can also be sure that I shall not hesitate to use every
power vested in me to accomplish the defeat of our enemies in any part
of the world where our own safety demands such defeat.

"When the war is won, the powers under which I act automatically revert
to the people--to whom they belong."[60]


PRESIDENTIAL WAR AGENCIES

While congressional compliance with the President's demand rendered
unnecessary an effort on his part to amend the Price Control Act, there
were other matters as to which he repeatedly took action within the
normal field of congressional powers, not only during the war, but in
some instances prior to it. Thus in exercising both the powers which he
claimed as Commander in Chief and those which Congress conferred upon
him to meet the emergency, Mr. Roosevelt employed new emergency
agencies, created by himself and responsible directly to him, rather
than the established departments or existing independent regulatory
agencies. Oldest of all these Presidential agencies was the Office for
Emergency Management (OEM), which was created by an executive order
dated May 25, 1940. Others were the Board of Economic Warfare (BEW), the
National Housing Agency (NHA), the National War Labor Board (NWLB), or
more shortly (WLB), the Office of Censorship (OC), the Office of
Civilian Defense (OCD), the Office of Defense Transportation (ODT), the
Office of Facts and Figures (OFF), presently absorbed into the Office of
War Information (OWI), the War Production Board (WPB), which superseded
the earlier Office of Production Management (OPM), the War Manpower
Commission (WMC), etc. Earlier there had been the Office of Price
Administration and Civilian Supply (OPACS), but was replaced under the
Emergency Price Control Act of January 30, 1942, by OPA. Later OWI was
created by executive order, as was also the Office of Economic
Stabilization (OES). The Office of War Mobilization and Reconversion
(OWMR), one of the last of the war agencies to appear, was established
by the War Mobilization and Reconversion Act of October 3, 1944.[61]


CONSTITUTIONAL STATUS OF PRESIDENTIAL AGENCIES

The question of the legal status of the presidential agencies was dealt
with judicially but once. This was in the decision, in June 1944, of the
United States Court of Appeals of the District of Columbia in a case
styled Employers Group of Motor Freight Carriers _v._ National War Labor
Board,[62] which was a suit to annul and enjoin a "directive order" of
the War Labor Board. The Court refused the injunction on the ground that
at the time when the directive was issued any action of the Board was
"informatory," "at most advisory." In support of this view the Court
quoted approvingly a statement by the chairman of the Board itself:
"These orders are in reality mere declarations of the equities of each
industrial dispute, as determined by a tripartite body in which
industry, labor, and the public share equal responsibility; and the
appeal of the Board is to the moral obligation of employers and workers
to abide by the nonstrike, no-lock-out agreement and * * * to carry out
the directives of the tribunal created under that agreement by the
Commander in Chief." Nor, the Court continued, had the later War Labor
Disputes Act vested War Labor Board's orders with any greater authority,
with the result that they were still judicially unenforceable and
unreviewable. Following this theory, War Labor Board was not an office
wielding power, but a purely advisory body, such as Presidents have
frequently created in the past without the aid or consent of Congress.
Congress itself, nevertheless, both in its appropriation acts and in
other legislation, treated the Presidential agencies as in all respects
offices.[63]


THE WEST COAST JAPANESE

On February 19, 1942 the President issued an executive order the
essential paragraphs of which read as follows:

"Whereas the successful prosecution of the war requires every possible
protection against espionage and against sabotage to national-defense
material, national-defense premises, and national-defense utilities
* * *

"Now, therefore, by virtue of the authority vested in me as
President of the United States, and Commander in Chief of the Army and
Navy, I hereby authorize and direct the Secretary of War, and the
Military Commanders whom he may from time to time designate, whenever he
or any designated Commander deems such action necessary or desirable, to
prescribe military areas in such places and of such extent as he or the
appropriate Military Commander may determine, from which any or all
persons may be excluded, and with respect to which, the right of any
person to enter, remain in, or leave shall be subject to whatever
restrictions the Secretary of War or the appropriate Military Commander
may impose in his discretion. The Secretary of War is hereby authorized
to provide for residents of any such area who are excluded therefrom,
such transportation, food, shelter, and other accommodations as may be
necessary, in the judgment of the Secretary of War or the said Military
Commander, and until other arrangements are made, to accomplish the
purpose of this order. * * *

"I hereby further authorize and direct all Executive Departments,
independent establishments and other Federal Agencies, to assist the
Secretary of War or the said Military Commanders in carrying out this
Executive Order, including the furnishing of medical aid,
hospitalization, food, clothing, transportation, use of land, shelter,
and other supplies, equipment, utilities, facilities and services."[64]
In pursuance of this order more than 112,000 Japanese residents of
Western States, of whom nearly two out of every three were natural-born
citizens of the United States, were eventually removed from their farms
and homes and herded, first in temporary camps, later in ten so-called
"relocation centers," situated in the desert country of California,
Arizona, Idaho, Utah, Colorado, and Wyoming and in the delta areas of
Arkansas.


The Act of March 21, 1942

It was apparently the original intention of the Administration to rest
its measures concerning this matter on the general principle of military
necessity and the power of the Commander in Chief in wartime. But before
any action of importance was taken under Executive Order 9066, Congress
ratified and adopted it by the act of March 21, 1942,[65] by which it
was made a misdemeanor to knowingly enter, remain in, or leave
prescribed military areas contrary to the orders of the Secretary of War
or of the commanding officer of the area. The cases which subsequently
arose in consequence of the order were decided under the order plus the
act. The question at issue, said Chief Justice Stone for the Court, "is
not one of Congressional power to delegate to the President the
promulgation of the Executive Order, but whether, acting in cooperation,
Congress and the Executive have constitutional * * * [power] to impose
the curfew restriction here complained of."[66] This question was
answered in the affirmative, as was the similar question later raised by
an exclusion order.[67]


PRESIDENTIAL GOVERNMENT OF LABOR RELATIONS

The most important segment of the home front regulated by what were in
effect Presidential edicts was the field of labor relations. Exactly six
months before Pearl Harbor, on June 7, 1941, Mr. Roosevelt, citing his
proclamation thirteen days earlier of an unlimited national emergency,
issued an Executive Order seizing the North American Aviation Plant at
Inglewood, California, where, on account of a strike, production was at
a standstill. Attorney General Jackson justified the seizure as growing
out of the "'duty constitutionally and inherently rested upon the
President to exert his civil and military as well as his moral authority
to keep the defense efforts of the United States a going concern,'" as
well as "to obtain supplies for which Congress has appropriated the
money, and which it has directed the President to obtain."[68] Other
seizures followed, and on January 12, 1942, Mr. Roosevelt, by Executive
Order 9017, created the National War Labor Board. "Whereas," the order
read in part, "by reason of the state of war declared to exist by joint
resolutions of Congress, * * *, the national interest demands that there
shall be no interruption of any work which contributes to the effective
prosecution of the war; and Whereas as a result of a conference of
representatives of labor and industry which met at the call of the
President on December 17, 1941, it has been agreed that for the duration
of the war there shall be no strikes or lockouts, and that all labor
disputes shall be settled by peaceful means, and that a National War
Labor Board be established for a peaceful adjustment of such disputes.
Now, therefore, by virtue of the authority vested in me by the
Constitution and the statutes of the United States, it is hereby
ordered: 1. There is hereby created in the Office for Emergency
Management a National War Labor Board, * * *"[69] In this field, too,
Congress intervened by means of the War Labor Disputes Act of June 25,
1943,[70] which however still left ample basis for Presidential activity
of a legislative character.[71]


"SANCTIONS"

To implement his directives as Commander in Chief in wartime, and
especially those which he issued in governing labor relations, Mr.
Roosevelt often resorted to "sanctions," which may be described as
penalties lacking statutory authorization. Ultimately, the President
sought, by Executive Order 9370 of August 16, 1943, to put sanctions in
this field on a systematic basis. This order read:

"(a) To other departments or agencies of the Government directing the
taking of appropriate action relating to withholding or withdrawing from
a noncomplying employer any priorities, benefits or privileges extended,
or contracts entered into, by executive action of the Government, until
the National War Labor Board has reported that compliance has been
effectuated;

"(b) To any Government agency operating a plant, mine or facility,
possession of which has been taken by the President under section 3 of
the War Labor Disputes Act, directing such agency to apply to the
National War Labor Board, under section 5 of said act, for an order
withholding or withdrawing from a noncomplying labor union any benefits,
privileges or rights accruing to it under the terms of conditions of
employment in effect (whether by agreement between the parties or by
order of the National War Labor Board, or both) when possession was
taken, until such time as the noncomplying labor union has demonstrated
to the satisfaction of the National War Labor Board its willingness and
capacity to comply; but, when the check-off is denied, dues received
from the check-off shall be held in escrow for the benefit of the union
to be delivered to it upon compliance by it.

"(c) To the War Manpower Commission, in the case of noncomplying
individuals, directing the entry of appropriate orders relating to the
modification or cancellation of draft deferments or employment
privileges, or both.

"Franklin D. Roosevelt.

"The White House, _Aug. 16, 1943._"[72]


CONSTITUTIONAL BASIS OF SANCTIONS

Sanctions were also occasionally employed by statutory agencies, as by
OPA, to supplement the penal provisions of the Emergency Price Control
Act of January 30, 1942;[73] and in the case of Steuart and Bro., Inc.
_v._ Bowles,[74] the Supreme Court had the opportunity to attempt to
regularize this type of executive emergency legislation. Here a retail
dealer in fuel oil in the District of Columbia was charged with having
violated a rationing order of OPA by obtaining large quantities of oil
from its supplier without surrendering ration coupons, by delivering
many thousands of gallons of fuel oil without requiring ration coupons,
and so on, and was prohibited by the agency from receiving oil for
resale or transfer for the ensuing year. The offender conceded the
validity of the rationing order in support of which the suspension order
was issued, but challenged the validity of the latter as imposing a
penalty that Congress has not enacted, and asked the district court to
enjoin it. The Court refused to do so and was sustained by the Supreme
Court in its position. Said Justice Douglas, speaking for the Court:
"Without rationing, the fuel tanks of a few would be full; the fuel
tanks of many would be empty. Some localities would have plenty;
communities less favorably situated would suffer. Allocation or
rationing is designed to eliminate such inequalities and to treat all
alike who are similarly situated. * * * But middlemen--wholesalers and
retailers--bent on defying the rationing system could raise havoc with
it. * * * These middlemen are the chief if not the only conduits between
the source of limited supplies and the consumers. From the viewpoint of
a rationing system a middleman who distributes the product in violation
and disregard of the prescribed quotas is an inefficient and wasteful
conduct. * * * Certainly we could not say that the President would lack
the power under this Act to take away from a wasteful factory and route
to an efficient one a previous supply of material needed for the
manufacture of articles of war. * * * From the point of view of the
factory owner from whom the materials were diverted the action would be
harsh. * * * But in times of war the national interest cannot wait on
individual claims to preference. * * * Yet if the President has the
power to channel raw materials into the most efficient industrial units
and thus save scarce materials from wastage it is difficult to see why
the same principle is not applicable to the distribution of fuel
oil."[75] Sanctions were, therefore, constitutional when the
deprivations they wrought were a reasonably implied amplification of the
substantive power which they supported and were directly conservative of
the interests which this power was created to protect and advance. It is
certain, however, that sanctions not uncommonly exceeded this
pattern.[76]


MARTIAL LAW AND CONSTITUTIONAL LIMITATIONS

Two theories of martial law are reflected in decisions of the Supreme
Court. By one, which stems from the Petition of Right, 1628, the common
law knows no such thing as martial law;[77] at any rate martial law is
not established by official authority of any sort, but arises from the
nature of things, being the law of paramount necessity, of which
necessity the civil courts are the final judges.[78] By the other
theory, martial law can be validly and constitutionally established by
supreme political authority in wartime. The latter theory is recognized
by the Court in Luther _v._ Borden,[79] where it was held that the Rhode
Island legislature had been within its rights in 1842 in resorting to
the rights and usages of war in combating insurrection in that State.
The decision in the Prize Cases,[80] while not dealing directly with the
subject of martial law, gave national scope to the same general
principle in 1863. The Civil War being safely over, however, a sharply
divided Court, in the elaborately argued Milligan case,[81] reverting to
the older doctrine, pronounced void President Lincoln's action,
following his suspension of the writ of _habeas corpus_ in September,
1863, in ordering the trial by military commission of persons held in
custody as "spies" and "abettors of the enemy." The salient passage of
the Court's opinion bearing on this point is the following: "If, in
foreign invasion or civil war, the courts are actually closed, and it is
impossible to administer criminal justice according to law, _then_, on
the theatre of active military operations, where war really prevails,
there is a necessity to furnish a substitute for the civil authority,
thus overthrown, to preserve the safety of the army and society; and as
no power is left but the military, it is allowed to govern by martial
rule until the laws can have their free course. As necessity creates the
rule, so it limits its duration; for, if this government is continued
_after_ the courts are reinstated, it is a gross usurpation of power.
Martial rule can never exist where the courts are open, and in proper
and unobstructed exercise of their jurisdiction. It is also confined to
the locality of actual war."[82] Four Justices, speaking by Chief
Justice Chase, while holding Milligan's trial to have been void because
violative of the act of March 3, 1863 governing the custody and trial of
persons who had been deprived of the _habeas corpus_ privilege, declared
their belief that Congress could have authorized Milligan's trial. Said
the Chief Justice: "Congress has the power not only to raise and support
and govern armies but to declare war. It has, therefore, the power to
provide by law for carrying on war. This power necessarily extends to
all legislation essential to the prosecution of war with vigor and
success, except such as interferes with the command of the forces and
the conduct of campaigns. That power and duty belong to the President as
Commander in Chief. Both these powers are derived from the Constitution,
but neither is defined by that instrument. Their extent must be
determined by their nature, and by the principles of our institutions.
* * * We by no means assert that Congress can establish and apply the
laws of war where no war has been declared or exists. Where peace exists
the laws of peace must prevail. What we do maintain is, that when the
nation is involved in war, and some portions of the country are invaded,
and all are exposed to invasion, it is within the power of Congress to
determine in what States or districts such great and imminent public
danger exists as justifies the authorization of military tribunals for
the trial of crimes and offences against the discipline or security of
the army or against the public safety."[83] In short, only Congress can
authorize the substitution of military tribunals for civil tribunals for
the trial of offenses; and Congress can do so only in wartime.


MARTIAL LAW IN HAWAII

The question of the constitutional status of martial law was raised in
World War II by the proclamation of Governor Poindexter of Hawaii, on
December 7, 1941, suspending the writ of _habeas corpus_ and conferring
on the local commanding General of the Army all his own powers as
governor and also "all of the powers normally exercised by the judicial
officers * * * of this territory * * * during the present emergency and
until the danger of invasion is removed." Two days later the Governor's
action was approved by President Roosevelt. The regime which the
proclamation set up continued with certain abatements until October 24,
1944.

By section 67 of the Organic Act of April 30, 1900,[84] the Territorial
Governor is authorized "in case of rebellion or invasion, or imminent
danger thereof, when the public safety requires it, [to] suspend the
privilege of the writ of _habeas corpus_, or place the Territory, or any
part thereof, under martial law until communication can be had with the
President and his decision thereon made known." By section 5 of the
Organic Act, "the Constitution, * * *, shall have the same force and
effect within the said Territory as elsewhere in the United States." In
a brace of cases which reached it in February 1945 but which it
contrived to postpone deciding till February 1946,[85] the Court,
speaking by Justice Black, held that the term "martial law" as employed
in the Organic Act, "while intended to authorize the military to act
vigorously for the maintenance of an orderly civil government and for
the defense of the Islands against actual or threatened rebellion or
invasion, was not intended to authorize the supplanting of courts by
military tribunals."[86] The Court relied on the majority opinion in Ex
parte Milligan. Chief Justice Stone concurred in the result. "I assume
also," said he, "that there could be circumstances in which the public
safety requires, and the Constitution permits, substitution of trials by
military tribunals for trials in the civil courts";[87] but added that
the military authorities themselves had failed to show justifying facts
in this instance. Justice Burton, speaking for himself and Justice
Frankfurter, dissented. He stressed the importance of Hawaii as a
military outpost and its constant exposure to the danger of fresh
invasion. He warned that "courts must guard themselves with special care
against judging past military action too closely by the inapplicable
standards of judicial, or even military, hindsight."[88]


THE CASE OF THE NAZI SABOTEURS[89]

The saboteurs were eight youths, seven Germans and one an American, who,
following a course of training in sabotage in Berlin, were brought to
this country in June 1942 aboard two German submarines and put ashore,
one group on the Florida coast, the other on Long Island, with the idea
that they would proceed forthwith to practice their art on American
factories, military equipment, and installations. Making their way
inland, the saboteurs were soon picked up by the FBI, some in New York,
others in Chicago, and turned over to the Provost Marshal of the
District of Columbia. On July 2, the President appointed a military
commission to try them for violation of the laws of war, to wit: for not
wearing fixed emblems to indicate their combatant status. In the midst
of the trial, the accused petitioned the Supreme Court and the United
States District Court for the District of Columbia for leave to bring
_habeas corpus_ proceedings. Their argument embraced the contentions:
(1) that the offense charged against them was not known to the laws of
the United States; (2) that it was not one arising in the land and naval
forces; and (3) that the tribunal trying them had not been constituted
in accordance with the requirements of the Articles of War.

The first argument the Court met as follows: The act of Congress in
providing for the trial before military tribunals of offenses against
the law of war is sufficiently definite, although Congress has not
undertaken to codify or mark the precise boundaries of the law of war,
or to enumerate or define by statute all the acts which that law
condemns. "* * * those who during time of war pass surreptitiously from
enemy territory into * * * [that of the United States], discarding
their uniforms upon entry, for the commission of hostile acts involving
destruction of life or property, have the status of unlawful combatants
punishable as such by military commission."[90] The second argument it
disposed of by showing that petitioners' case was of a kind that was
never deemed to be within the terms of Amendments V and VI, citing in
confirmation of this position the trial of Major Andre.[91] The third
contention the Court overruled by declining to draw the line between the
powers of Congress and the President in the premises,[92] thereby, in
effect, attributing to the latter the right to amend the Articles of War
in a case of the kind before the Court _ad libitum_.

The decision might well have rested on the ground that the Constitution
is without restrictive force in wartime in a situation of this sort. The
saboteurs were invaders; their penetration of the boundary of the
country, projected from units of a hostile fleet, was essentially a
military operation, their capture was a continuation of that operation.
Punishment of the saboteurs was therefore within the President's purely
martial powers as Commander in Chief. Moreover, seven of the petitioners
were enemy aliens, and so, strictly speaking, without constitutional
status. Even had they been civilians properly domiciled in the United
States at the outbreak of the war they would have been subject under the
statutes to restraint and other disciplinary action by the President
without appeal to the courts.[93]


THE WAR CRIMES CASES

As a matter of fact, in General Yamashita's case,[94] which was brought
after the termination of hostilities for alleged "war crimes," the Court
abandoned its restrictive conception altogether. In the words of Justice
Rutledge's dissenting opinion in this case: "The difference between the
Court's view of this proceeding and my own comes down in the end to the
view, on the one hand, that there is no law restrictive upon these
proceedings other than whatever rules and regulations may be prescribed
for their government by the executive authority or the military and, on
the other hand, that the provisions of the Articles of War, of the
Geneva Convention and the Fifth Amendment apply."[95] And the adherence
of the United States to the Charter of London in August 1945, under
which the Nazi leaders were brought to trial, is explicable by the same
theory. These individuals were charged with the crime of instigating
aggressive war, which at the time of its commission was not a crime
either under International Law or under the laws of the prosecuting
governments. It must be presumed that the President is not in his
capacity as Supreme Commander bound by the prohibition in the
Constitution of _ex post facto_ laws; nor does International Law forbid
_ex post facto_ laws.[96]


THE PRESIDENT AS COMMANDER OF THE FORCES

While the President customarily delegates supreme command of the forces
in active service, there is no constitutional reason why he should do
so; and he has been known to resolve personally important questions of
military policy. Lincoln early in 1862 issued orders for a general
advance in the hope of stimulating McClellan to action; Wilson in 1918
settled the question of an independent American command on the Western
Front; Truman in 1945 ordered that the bomb be dropped on Hiroshima and
Nagasaki. As against an enemy in the field the President possesses all
the powers which are accorded by International Law to any supreme
commander. "He may invade the hostile country, and subject it to the
sovereignty and authority of the United States."[97] In the absence of
attempts by Congress to limit his power, he may establish and prescribe
the jurisdiction and procedure of military commissions, and of tribunals
in the nature of such commissions, in territory occupied by Armed Forces
of the United States, and his authority to do this sometimes survives
cessation of hostilities.[98] He may employ secret agents to enter the
enemy's lines and obtain information as to its strength, resources, and
movements.[99] He may, at least with the assent of Congress, authorize
intercourse with the enemy.[100] He may also requisition property and
compel services from American citizens and friendly aliens who are
situated within the theatre of military operations when necessity
requires, thereby incurring for the United States the obligation to
render "just compensation."[101] By the same warrant he may bring
hostilities to a conclusion by arranging an armistice, stipulating
conditions which may determine to a great extent the ensuing peace.[102]
He may not, however, effect a permanent acquisition of territory;[103]
though he may govern recently acquired territory until Congress sets up
a more permanent regime.[104] He is the ultimate tribunal for the
enforcement of the rules and regulations which Congress adopts for the
government of the forces, and which are enforced through
courts-martial.[105] Indeed, until 1830, courts-martial were convened
solely on his authority as Commander in Chief.[106] Such rules and
regulations are, moreover, it would seem, subject in wartime to his
amendment at discretion.[107] Similarly, the power of Congress to "make
rules for the government and regulation of the law and naval forces"
(Art. I, § 8, cl. 14) did not prevent President Lincoln from
promulgating in April, 1863 a code of rules to govern the conduct in the
field of the armies of the United States which was prepared at his
instance by a commission headed by Francis Lieber and which later
became the basis of all similar codifications both here and abroad.[108]
One important power he lacks, that of choosing his subordinates, whose
grades and qualifications are determined by Congress and whose
appointment is ordinarily made by and with the advice and consent of the
Senate, though undoubtedly Congress could if it wished vest their
appointment in "the President alone."[109] Also, the President's power
to dismiss an officer from the service, once unlimited, is today
confined by statute in time of peace to dismissal "in pursuance of the
sentence of a general court-martial or in mitigation thereof."[110] But
the provision is not regarded by the Court as preventing the President
from displacing an officer of the Army or Navy by appointing with the
advice and consent of the Senate another person in his place.[111] The
President's power of dismissal in time of war Congress has never
attempted to limit.


THE COMMANDER IN CHIEF A CIVILIAN OFFICER

Is the Commander in Chiefship a military or civilian office in the
contemplation of the Constitution? Unquestionably the latter. A recent
opinion by a New York surrogate deals adequately, though not
authoritatively, with the subject: "The President receives his
compensation for his services, rendered as Chief Executive of the
Nation, not for the individual parts of his duties. No part of his
compensation is paid from sums appropriated for the military or naval
forces; and it is equally clear under the Constitution that the
President's duties as Commander in Chief represents only a part of
duties _ex officio_ as Chief Executive [Article II, sections 2 and 3 of
the Constitution] and that the latter's office is a civil office.
[Article II, section 1 of the Constitution; vol. 91, Cong. Rec.
4910-4916; Beard, The Republic (1943) pp. 100-103.] The President does
not enlist in, and he is not inducted or drafted into the armed forces.
Nor, is he subject to court-martial or other military discipline. On the
contrary, article II, section 4 of the Constitution provides that '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.' * * * The last
two War Presidents, President Wilson and President Roosevelt, both
clearly recognized the civilian nature of the President's position as
Commander in Chief. President Roosevelt, in his Navy Day Campaign speech
at Shibe Park, Philadelphia, on October 27, 1944, pronounced this
principle as follows:--'It was due to no accident and no oversight that
the framers of our Constitution put the command of our armed forces
under civilian authority. It is the duty of the Commander in Chief to
appoint the Secretaries of War and Navy and the Chiefs of Staff.' It is
also to be noted that the Secretary of War, who is the regularly
constituted organ of the President for the administration of the
military establishment of the Nation, has been held by the Supreme Court
of the United States to be merely a civilian officer, not in military
service. (United States _v._ Burns, 79 U.S. 246 (1871)). On the general
principle of civilian supremacy over the military, by virtue of the
Constitution, it has recently been said: 'The supremacy of the civil
over the military is one of our great heritages.' Duncan _v._
Kahanamoku, 324 U.S. 833 (1945), 14 L.W. 4205 at page 4210."[112]


Presidential Advisers


THE CABINET

The above provisions are the meager residue from a persistent effort in
the Federal Convention to impose a council on the President.[113] The
idea ultimately failed, partly because of the diversity of ideas
concerning the Council's make-up. One member wished it to consist of
"members of the two houses," another wished it to comprise two
representatives from each of three sections, "with a rotation and
duration of office similar to those of the Senate." The proposal which
had the strongest backing was that it should consist of the heads of
departments and the Chief Justice of the Supreme Court, who should
preside when the President was absent. Of this proposal the only part
to survive was the above cited provision. The consultative relation here
contemplated is an entirely one-sided affair, is to be conducted with
each principal officer separately and in writing, and to relate only to
the duties of their respective offices.[114] The _Cabinet_, as we know
it today, that is to say, the Cabinet _meeting_, was brought about
solely on the initiative of the first President, and may be dispensed
with on Presidential initiative at any time, being totally unknown to
the Constitution. Several Presidents have in fact reduced the Cabinet
meeting to little more than a ceremony with social trimmings.[115]


Pardons and Reprieves


THE LEGAL NATURE OF A PARDON

In the first case to be decided concerning the pardoning power, Chief
Justice Marshall, speaking for the Court, said: "As this power had been
exercised from time immemorial by the executive of that nation whose
language is our language, and to whose judicial institutions ours bear a
close resemblance; we adopt their principles respecting the operation
and effect of a pardon, and look into their books for the rules
prescribing the manner in which it is to be used by the person who would
avail himself of it. A pardon is an act of grace, proceeding from the
power entrusted with the execution of the laws, which exempts the
individual, on whom it is bestowed, from the punishment the law inflicts
for a crime he has committed. It is the private, though official act of
the executive magistrate, delivered to the individual for whose benefit
it is intended, and not communicated officially to the Court. * * * A
pardon is a deed, to the validity of which delivery is essential, and
delivery is not complete without acceptance. It may then be rejected by
the person to whom it is tendered; and if it be rejected, we have
discovered no power in a court to force it on him." Marshall thereupon
proceeded to lay down the doctrine, that "a pardon is a deed to the
validity of which delivery is essential, and delivery is not complete
without acceptance"; and that to be noticed judicially this deed must be
pleaded, like any private instrument.[116]


Qualification of the Above Theory

In the case of Burdick _v._ United States,[117] decided in 1915,
Marshall's doctrine was put to a test that seems to have overtaxed it,
perhaps fatally. Burdick, having declined to testify before a federal
grand jury on the ground that his testimony would tend to incriminate
him, was proffered by President Wilson "a full and unconditional pardon
for all offenses against the United States" which he might have
committed or participated in in connection with the matter he had been
questioned about. Burdick, nevertheless, refused to accept the pardon
and persisted in his contumacy with the unanimous support of the Supreme
Court. "The grace of a pardon," remarked Justice McKenna sententiously,
"may be only a pretense * * * involving consequences of even greater
disgrace than those from which it purports to relieve. Circumstances may
be made to bring innocence under the penalties of the law. If so
brought, escape by confession of guilt implied in the acceptance of a
pardon may be rejected, * * *"[118] Nor did the Court give any
attention to the fact that the President had accompanied his proffer to
Burdick with a proclamation, although a similar procedure had been held
to bring President Johnson's amnesties to the Court's notice.[119] In
1927, however, in sustaining the right of the President to commute a
sentence of death to one of life imprisonment, against the will of the
prisoner, the Court abandoned this view. "A pardon in our days," it
said, "is not a private act of grace from an individual happening to
possess power. It is a part of the Constitutional scheme. When granted
it is the determination of the ultimate authority that the public
welfare will be better served by inflicting less than what the judgment
fixed."[120] Whether these words sound the death knell of the acceptance
doctrine is perhaps doubtful.[121] They seem clearly to indicate that by
substantiating a commutation order for a deed of pardon, a President can
always have his way in such matters, provided the substituted penalty is
authorized by law and does not in common understanding exceed the
original penalty.[122]


SCOPE OF THE POWER

The power embraces all "offences against the United States," except
cases of impeachment, and includes the power to remit fines, penalties,
and forfeitures, except as to money covered into the Treasury or paid an
informer;[123] also the power to pardon absolutely or conditionally; and
includes the power to commute sentences, which, as seen above, is
effective without the convict's consent.[124] It has been held,
moreover, in face of earlier English practice, that indefinite
suspension of sentence by a court of the United States is an invasion of
the Presidential prerogative, amounting as it does to a condonation of
the offense.[125] It was early assumed that the power included the power
to pardon specified classes or communities wholesale, in short, the
power to amnesty, which is usually exercised by proclamation. General
amnesties were issued by Washington in 1795, by Adams in 1800, by
Madison in 1815, by Lincoln in 1863, by Johnson in 1865, 1867, and 1868,
and by the first Roosevelt--to Aguinaldo's followers--in 1902.[126] Not,
however, till after the Civil War was the point adjudicated, when it was
decided in favor of Presidential prerogative.[127]


"OFFENSES AGAINST THE UNITED STATES"; CONTEMPT OF COURT

In the first place, such offenses are not offenses against the States.
In the second place, they are completed offenses;[128] the President
cannot pardon by anticipation, otherwise he would be invested with the
power to dispense with the laws, his claim to which was the principal
cause of James II's forced abdication.[129] Lastly, the term has been
held to include criminal contempts of court. Such was the holding in Ex
parte Grossman,[130] where Chief Justice Taft, speaking for the Court,
resorted once more to English conceptions as being authoritative in
construing this clause of the Constitution. Said he: "The King of
England before our Revolution, in the exercise of his prerogative, had
always exercised the power to pardon contempts of court, just as he did
ordinary crimes and misdemeanors and as he has done to the present day.
In the mind of a common law lawyer of the eighteenth century the word
pardon included within its scope the ending by the King's grace of the
punishment of such derelictions, whether it was imposed by the court
without a jury or upon indictment, for both forms of trial for contempts
were had. [Citing cases.] These cases also show that, long before our
Constitution, a distinction had been recognized at common law between
the effect of the King's pardon to wipe out the effect of a sentence for
contempt in so far as it had been imposed to punish the contemnor for
violating the dignity of the court and the King, in the public interest,
and its inefficacy to halt or interfere with the remedial part of the
court's order necessary to secure the rights of the injured suitor.
Blackstone IV, 285, 397, 398; Hawkins Pleas of the Crown, 6th Ed.
(1787), Vol. 2, 553. The same distinction, nowadays referred to as the
difference between civil and criminal contempts, is still maintained in
English law[131]." Nor was any new or special danger to be apprehended
from this view of the pardoning power. "If," says the Chief Justice, "we
could conjure up in our minds a President willing to paralyze courts by
pardoning all criminal contempts, why not a President ordering a general
jail delivery?" Indeed, he queries further, in view of the peculiarities
of procedure in contempt cases, "may it not be fairly said that in order
to avoid possible mistake, undue prejudice or needless severity, the
chance of pardon should exist at least as much in favor of a person
convicted by a judge without a jury as in favor of one convicted in a
jury trial[132]?"


EFFECTS OF A PARDON; EX PARTE GARLAND

The great leading case is Ex parte Garland[133] which was decided
shortly after the Civil War. By an act passed in 1865 Congress had
prescribed that before any person should be permitted to practice in a
federal court he must take oath asserting that he had never voluntarily
borne arms against the United States, had never given aid or comfort to
enemies of the United States, and so on. Garland, who had been a
Confederate sympathizer and so was unable to take the oath, had however
received from President Johnson the same year "a full pardon 'for all
offences by him committed, arising from participation, direct or
implied, in the Rebellion,' * * *" The question before the Court was
whether, armed with this pardon, Garland was entitled to practice in the
federal courts despite the act of Congress just mentioned. Said Justice
Field for a sharply divided Court: "The inquiry arises as to the effect
and operation of a pardon, and on this point all the authorities concur.
A pardon reaches both the punishment prescribed for the offence and the
guilt of the offender; and when the pardon is full, it releases the
punishment and blots out of existence the guilt, so that in the eye of
the law the offender is as innocent as if he had never committed the
offense. If granted before conviction, it prevents any of the penalties
and disabilities consequent upon conviction from attaching; [thereto],
if granted after conviction, it removes the penalties and disabilities,
and restores him to all his civil rights; it makes him, as it were, a
new man, and gives him a new credit and capacity."[134] Justice Miller
speaking for the minority protested that the act of Congress involved
was not penal in character, but merely laid down an appropriate test of
fitness to practice the law. "The man who, by counterfeiting, by theft,
by murder, or by treason, is rendered unfit to exercise the functions of
an attorney or counsellor at law, may be saved by the executive pardon
from the penitentiary or the gallows, but he is not thereby restored to
the qualifications which are essential to admission to the bar."[135]
Justice Field's language must today be regarded as much too sweeping in
light of a decision rendered in 1914 in the case of Carlesi _v._ New
York.[136] Carlesi had some years before been convicted of committing a
federal offense. In the instant case the prisoner was being tried for a
subsequent offense committed in New York. He was convicted as a second
offender, although the President had pardoned him for the earlier
federal offense. In other words, the fact of prior conviction by a
federal court was considered in determining the punishment for a
subsequent State offense. This conviction and sentence were upheld by
the Supreme Court. While this case involved offenses against different
sovereignties, the Court declared by way of dictum that its decision
"must not be understood as in the slightest degree intimating that a
pardon would operate to limit the power of the United States in
punishing crimes against its authority to provide for taking into
consideration past offenses committed by the accused as a circumstance
of aggravation even although for such past offenses there had been a
pardon granted."[137]


LIMITS TO THE EFFICACY OF A PARDON

But Justice Field's latitudinarian view of the effect of a pardon
undoubtedly still applies ordinarily where the pardon is issued _before
conviction_. He is also correct in saying that a full pardon restores a
_convict_ to his "civil rights," and this is so even though simple
completion of the convict's sentence would not have had that effect. One
such right is the right to testify in court, and in Boyd _v._ United
States the Court held that the disability to testify being a
consequence, according to principles of the common law, of the judgment
of conviction, the pardon obliterated that effect.[138] But a pardon
cannot "make amends for the past. It affords no relief for what has
been suffered by the offender in his person by imprisonment, forced
labor, or otherwise; it does not give compensation for what has been
done or suffered, nor does it impose upon the government any obligation
to give it. The offence being established by judicial proceedings, that
which has been done or suffered while they were in force is presumed to
have been rightfully done and justly suffered, and no satisfaction for
it can be required. Neither does the pardon affect any rights which have
vested in others directly by the execution of the judgment for the
offence, or which have been acquired by others whilst that judgment was
in force. If, for example, by the judgment a sale of the offender's
property has been had, the purchaser will hold the property
notwithstanding the subsequent pardon. And if the proceeds of the sale
have been paid to a party to whom the law has assigned them, they cannot
be subsequently reached and recovered by the offender. The rights of the
parties have become vested, and are as complete as if they were acquired
in any other legal way. So, also, if the proceeds have been paid into
the treasury, the right to them has so far become vested in the United
States that they can only be secured to the former owner of the property
through an act of Congress. Moneys once in the treasury can only be
withdrawn by an appropriation by law."[139]


CONGRESS AND AMNESTY

Congress cannot limit the effects of a Presidential amnesty. Thus the
act of July 12, 1870, making proof of loyalty necessary to recover
property abandoned and sold by the government during the Civil War,
notwithstanding any Executive proclamation, pardon, amnesty, or other
act of condonation or oblivion, was pronounced void. Said Chief Justice
Chase for the majority: "* * * the legislature cannot change the effect
of such a pardon any more than the executive can change a law. Yet this
is attempted by the provision under consideration. The Court is required
to receive special pardons as evidence of guilt and to treat them as
null and void. It is required to disregard pardons granted by
proclamation on condition, though the condition has been fulfilled, and
to deny them their legal effect. This certainly impairs the executive
authority and directs the Court to be instrumental to that end."[140] On
the other hand, Congress may itself, under the necessary and proper
clause, enact amnesty laws remitting penalties incurred under the
national statutes,[141] and may stipulate that witnesses before courts
or other bodies qualified to take testimony shall not be prosecuted by
the National Government for any offenses disclosed by their
testimony.[142]


Clause 2. 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 Treaty-Making Power


PRESIDENT AND SENATE

The plan which the Committee of Detail reported to the Federal
Convention on August 6, 1787 provided that "the Senate of the United
States shall have power to make treaties, and to appoint Ambassadors,
and Judges of the Supreme Court."[143] Not until September 7, ten days
before the Convention's final adjournment, was the President made a
participant in these powers.[144] The constitutional clause evidently
assumes that the President and Senate will be associated throughout the
entire process of making a treaty, although Jay, writing in The
Federalist, foresaw that the initiative must often be seized by the
President without benefit of Senatorial counsel.[145] Yet so late as
1818 Rufus King, Senator from New York, who had been a member of the
Convention, declared on the floor of the Senate: "In these concerns the
Senate are the Constitutional and the only responsible counsellors of
the President. And in this capacity the Senate may, and ought to, look
into and watch over every branch of the foreign affairs of the nation;
they may, therefore, at any time call for full and exact information
respecting the foreign affairs, and express their opinion and advice to
the President respecting the same, when, and under whatever other
circumstances, they may think such advice expedient."[146]


NEGOTIATION A PRESIDENTIAL MONOPOLY

Actually, the negotiation of treaties had long since been taken over by
the President; the Senate's role in relation to treaties is today
essentially legislative in character.[147] "He alone negotiates. Into
the field of negotiation, the Senate cannot intrude; and Congress itself
is powerless to invade it," declared Justice Sutherland for the Court
in 1936.[148] The Senate must, moreover, content itself with such
information as the President chooses to furnish it.[149] In performing
the function that remains to it, however, it has several options. It may
consent unconditionally to a proposed treaty, or it may refuse its
consent, or it may stipulate conditions in the form of amendments to the
treaty or of reservations to the act of ratification, the difference
between the two being that, whereas amendments, if accepted by the
President and the other party or parties to the Treaty,[150] change it
for all parties, reservations limit only the obligations of the United
States thereunder. The act of ratification for the United States is the
President's act, but may not be forthcoming unless the Senate has
consented to it by the required two-thirds of the Senators present,
which signifies two-thirds of a quorum, otherwise the consent rendered
would not be that of the Senate as organized under the Constitution to
do business.[151] Conversely, the President may, if dissatisfied with
amendments which have been affixed by the Senate to a proposed treaty or
with the conditions stipulated by it to ratification, decide to abandon
the negotiation, which he is entirely free to do.[152]


TREATIES AS LAW OF THE LAND

Treaty commitments of the United States are of two kinds. In the
language of Chief Justice Marshall in 1829; "A treaty is, in its nature,
a contract between two nations, not a legislative act. It does not
generally effect, of itself, the object to be accomplished; especially,
so far as its operation is infraterritorial; but is carried into
execution by the sovereign power of the respective parties to the
instrument. In the United States, a different principle is established.
Our constitution declares a treaty to be the law of the land. It is,
consequently, to be regarded in courts of justice as equivalent to an
act of the legislature, whenever it operates of itself, without the aid
of any legislative provision. But when the terms of the stipulation
import a contract--when either of the parties engages to perform a
particular act, the treaty addresses itself to the political, not the
judicial department; and the legislature must execute the contract,
before it can become a rule for the Court."[153] To the same effect, but
more accurate, is Justice Miller's language for the Court a half century
later, in Head Money Cases: "A treaty is primarily a compact between
independent nations. It depends for the enforcement of its provisions on
the interest and the honor of the governments which are parties to it.
* * * But a treaty may also contain provisions which confer certain
rights upon the citizens or subjects of one of the nations residing in
the territorial limits of the other, which partake of the nature of
municipal law, and which are capable of enforcement as between private
parties in the courts of the country."[154]


Origin of the Conception

How did this distinctive feature of the Constitution come about, by
virtue of which the treaty-making authority is enabled to stamp upon its
promises the quality of municipal law, thereby rendering them
"self-executory," as it is said; in other words, enforceable by the
courts? The answer is that article VI, paragraph 2 was, at its
inception, an outgrowth of a major weakness of the Articles of
Confederation. Although the Articles entrusted the treaty-making power
to Congress, fulfillment of Congress' promises was dependent on the
State legislatures. The result was that two highly important Articles
of the Treaty of Peace of 1783 not only went unenforced, but were in
some instances directly flouted by the local legislatures. These were
articles IV and VI, which contained stipulations in favor, respectively,
of British creditors of American citizens and of the former Loyalists;
in short of _private persons_. Confronted with the reiterated protests
of the British government, John Jay, Secretary of the United States for
Foreign Affairs, suggested to Congress late in 1786 that it request the
State legislatures to repeal all legislation repugnant to the Treaty of
Peace, and at the same time authorize their courts in all cases arising
from the said treaty to decide and adjudge according to the true intent
and meaning of the same, "anything in the said acts * * * to the
contrary notwithstanding." On April 13, 1787 Congress unanimously voted
Jay's proposal, which on the eve of the assembling of the Federal
Convention was transmitted to the State legislatures, by seven of which
it was promptly adopted.[155]


TREATY RIGHTS VERSUS STATE POWER

The first case to arise under article VI, clause 2, was Ware _v._
Hylton.[156] The facts and bearing of the decision are indicated in the
syllabus: "A debt, due before the war from an American to a British
subject, was during the war, paid into the loan office of Virginia, in
pursuance of a law of that State of the 20th of December, 1777,
sequestering British property and providing that such payment, and a
receipt therefor, should discharge the debt. Held: That the legislature
of Virginia which from the 4th of July, 1776, and before the
Confederation of the United States, * * * possessed and exercised all
the rights of independent governments, had authority to make such law
and that the same was obligatory, since every nation at war with another
may confiscate all property of, including private debts due, the enemy.
Such payment and discharge would therefore be a bar to a subsequent
action, unless the creditor's right was revived by the treaty of peace,
by which alone the restitution of, or compensation for, British property
confiscated during the war by any of the United States could only be
provided for. Held, that the fourth article of the treaty of peace
between Great Britain and the United States, of September 3, 1783,
nullifies said law of Virginia, destroys the payment made under it, and
revives the debt, and gives a right of recovery against the principal
debtor, notwithstanding such payment thereof, under the authority of
State law." In Hopkirk _v._ Bell[157] the Court further held that this
same treaty provision prevented the operation of a Virginia statute of
limitation to bar collection of antecedent debts. In numerous subsequent
cases the Court invariably ruled that treaty provisions supersede
inconsistent State laws governing the right of aliens to inherit real
estate.[158] Such a case was Hauenstein _v._ Lynham,[159] in which the
Court upheld the right of a citizen of the Swiss Republic, under the
treaty of 1850 with that country, to recover the estate of a relative
dying intestate in Virginia, to sell the same and to export the proceeds
from the sale.[160]


Recent Cases

Certain more recent cases stem from California legislation, most of it
directed against Japanese immigrants. A statute which excluded aliens
ineligible to American citizenship from owning real estate was upheld in
1923 on the ground that the treaty in question did not secure the rights
claimed.[161] But in Oyama _v._ California,[162] decided in 1948, a
majority of the Court indicated a strongly held opinion that this
legislation conflicted with the equal protection clause of Amendment
XIV, a view which has since received the endorsement of the California
Supreme Court by a narrow majority.[163] Meantime, California was
informed that the rights of German nationals, under the Treaty of
December 8, 1923 between the United States and the Reich, to whom real
property in the United States had descended or been devised, to dispose
of it, had survived the recent war and certain war legislation, and
accordingly prevailed over conflicting State legislation.[164]


WHEN IS A TREATY SELF-EXECUTING?

What is the scope of the power of American courts under article VI,
clause 2, to lend ear to private claims based on treaty provisions, on
the ground that such provisions are self-executing? Jay had in mind
certain intended victims of State legislation; and in fact the cases
reviewed above all arose within the normal field of State legislative
power. Nevertheless, as early as 1801, in United States _v._ Schooner
Peggy,[165] the Supreme Court, speaking by Chief Justice Marshall, took
notice of a treaty with France, executed after a court of admiralty had
entered a final judgment condemning a captured French vessel, and
finding it applicable to the situation before it, set the judgment aside
and ordered the vessel restored to her owners. Since that time the Court
has declared repeatedly in cases in which State law was not involved
that when a treaty prescribes a rule by which private rights are to be
determined, the courts are bound to take judicial notice thereof and to
accept it as a rule of decision in any appropriate proceeding to enforce
such rights.[166] In short, whether a given treaty provision is
self-executing is a question for the Court; although it does not
altogether lack guiding principles in deciding it, the most important of
which is the doctrine of political questions.[167] _See_ pp. 426,
471-472.


CONSTITUTIONAL FREEDOM OF CONGRESS WITH RESPECT TO TREATIES

From the foregoing two other questions arise: first, are there types of
treaty provisions which only Congress can put into effect? Second,
assuming an affirmative answer to the above question, is Congress under
constitutional obligation to supply such implementation? For such answer
as exists to the first question resort must be had to the record of
practice and nonjudicial opinion. The question arose originally in 1796
in connection with the Jay Treaty, certain provisions of which required
appropriations to carry them into effect. In view of the third clause of
article I, section 9 of the Constitution, which says that "no money
shall be drawn from the Treasury, but in Consequence of Appropriations
made by law; * * *," it was universally agreed that Congress must be
applied to if the treaty provisions alluded to were to be put into
execution. But at this point the second question arose, to the solution
of which the Court has subsequently contributed indirectly. (_See_ pp.
420-421). A bill being introduced into the House of Representatives to
vote the needed funds, supporters of the treaty, Hamilton, Chief Justice
Ellsworth, and others, argued that the House must make the appropriation
willy nilly; that the treaty, having been ratified by and with the
advice and consent of the Senate, was "supreme law of the land," and
that the legislative branch was bound thereby no less than the
executive and judicial branches.[168] Madison, a member of the House,
opposed this thesis in a series of resolutions, the nub of which is
comprised in the following statement: "When a Treaty stipulates
regulations on any of the subjects submitted by the Constitution to the
power of Congress, it must depend for its execution, as to such
stipulations, on a law or laws to be passed by Congress. And it is the
Constitutional right and duty of the House of Representatives, in all
such cases, to deliberate on the expediency or inexpediency of carrying
such Treaty into effect, and to determine and act thereon, as, in their
judgment, may be most conducive to the public good."[169] The upshot of
the matter was that the House adopted Madison's resolutions, while at
the same time voting the required funds.[170]


THE TREATY-MAKING POWER AND REVENUE LAWS

On the whole, Madison's position has prospered. Discussion whether there
are other treaty provisions than those calling for an expenditure of
money which require legislation to render them legally operative has
centered chiefly on the question whether the treaty-making power can of
itself alone modify the revenue laws. From an early date spokesmen for
the House have urged that a treaty does not, and cannot, _ex proprio
vigore_, become supreme law of the land on this subject; and while the
Senate has never conceded this claim formally, yet in a number of
instances, "the treaty-making power has inserted in treaties negotiated
by it and affecting the revenue laws of the United States, a proviso
that they should not be deemed effective until the necessary laws to
carry them into operation should be enacted by Congress, and the House
has claimed that the insertion of such requirements has been, in
substance, a recognition of its claim in the premises,"[171] although
there are judicial dicta which inferentially support the Senate's
position. Latterly the question has become largely academic. Commercial
agreements nowadays are usually executive agreements contracted by
authorization of Congress itself. Today the vital issue in this area of
Constitutional Law is whether the treaty-making power is competent to
assume obligations for the United States in the discharge of which the
President can, without violation of his oath to support the
Constitution, involve the country in large scale military operations
abroad without authorization by the war-declaring power, Congress to
wit. Current military operations in Korea appear to assume an
affirmative answer to this question.


CONGRESSIONAL REPEAL OF TREATIES

It is in respect to his contention that when it is asked to carry a
treaty into effect Congress has the constitutional right, and indeed the
duty, to determine the matter according to its own ideas of what is
expedient, that Madison has been most completely vindicated by
developments. This is seen in the answer which the Court has returned to
the question, as to what happens when a treaty provision and an act of
Congress conflict. The answer is, that neither has any intrinsic
superiority over the other and that therefore the one of later date will
prevail _leges posteriores priores contrarias abrogant_. In short, the
treaty commitments of the United States in no wise diminish Congress's
constitutional powers. To be sure, legislative repeal of a treaty as law
of the land may amount to a violation of it as an international contract
in the judgment of the other party to it. In such case, as the Court has
said, "Its infraction becomes the subject of international negotiations
and reclamations, so far as the injured party chooses to seek redress,
which may in the end be enforced by actual war. It is obvious that with
all this the judicial courts have nothing to do and can give no
redress."[172]


TREATIES _Versus_ PRIOR ACTS OF CONGRESS

The cases are numerous in which the Court has enforced statutory
provisions which were recognized by it as superseding prior treaty
engagements. How as to the converse situation? Two early cases in which
Chief Justice Marshall spoke for the Court, stand for the proposition
that treaties, so far as self-executing, repeal earlier conflicting acts
of Congress. In the case of the "_Peggy_,"[173] certain statutory
provisions dealing with the trial of prize cases were held to have been
modified by a subsequent treaty with France; and in Foster _v._.
Neilson,[174] while holding--mistakenly as he later admitted[175]--that
the treaty of January 24, 1818 with Spain was not self-executing with
respect to certain land grants, he went on to say that if it had been it
would have repealed acts of Congress repugnant to it. With one
exception, however, judicial dicta which reiterate this idea are obiter,
and are disparaged by Willoughby, as follows: "In fact, however, there
have been few (the writer is not certain that there have been any)
instances in which a treaty inconsistent with a prior act of Congress
has been given full force and effect as law in this country without the
assent of Congress. There may indeed have been cases in which, by
treaty, certain action has been taken without reference to existing
Federal laws, as, for example, where by treaty certain populations have
been collectively naturalized, but such treaty action has not operated
to repeal or annul the existing law upon the subject. Furthermore, with
specific reference to commercial arrangements with foreign powers,
Congress has explicitly denied that a treaty can operate to modify the
arrangements which it, by statute, has provided, and, in actual
practice, has in every instance succeeded in maintaining this
point."[176] The single exception just alluded to is Cook _v._ United
States,[177] which may be regarded as part of the aftermath of National
Prohibition. Here a divided Court, speaking by Justice Brandeis, ruled
that the authority conferred by § 581 of the Tariff Act of 1922 and its
reenactment in the tariff Act of 1930, upon officers of the Coast Guard
to stop and board any vessel at any place within four leagues (12 miles)
of the coast of the United States and to seize the vessel, if upon
examination it shall appear that any violation of the law has been
committed by reason of which the vessel or merchandise therein is liable
to forfeiture, is, as respects British vessels suspected of being
engaged in attempting to import alcoholic beverages into the United
States in violation of its laws, modified by the Treaty of May 22, 1924,
between the United States and Great Britain, so as to allow seizure of
such vessels only within the distance from the coast which can be
traversed in one hour by the vessel suspected of endeavoring to commit
the offense.[178] Only one case is cited in support of the proposition
that the treaty, being of later date than the act of Congress,
superseded it so far as they were in conflict. This is Whitney _v._
Robertson,[179] in which an act of Congress was held to have superseded
conflicting provisions of a prior treaty. Moreover, the act of Congress
involved in the Cook case had, as above indicated, been reenacted
subsequently to the treaty involved. The decision actually accomplishes
the singular result of reversing the maxim _leges posteriores_. It may
be suspected that it was devised to avoid a diplomatic controversy which
in the low estate of Prohibition at that date would not have been
worthwhile.[180]


INTERPRETATION AND TERMINATION OF TREATIES AS INTERNATIONAL COMPACTS

The repeal by Congress of the "self-executing" clauses of a treaty as
"law of the land" does not of itself terminate the treaty as an
international contract, although it may very well provoke the other
party to the treaty to do so. Hence the question arises of where the
Constitution lodges this power; also the closely related question of
where it lodges the power to interpret the contractual provisions of
treaties. The first case of outright abrogation of a treaty by the
United States occurred in 1798, when Congress, by the act of July 7 of
that year, pronounced the United States freed and exonerated from the
stipulations of the Treaties of 1778 with France.[181] This act was
followed two days later by one authorizing limited hostilities against
the same country; and in the case of Bas _v._ Tingy[182] the Supreme
Court treated the act of abrogation as simply one of a bundle of acts
declaring "public war" upon the French Republic.


TERMINATION OF TREATIES BY NOTICE

The initial precedent in the matter of termination by notice occurred in
1846, when by the Joint Resolution of April 27, Congress authorized the
President at his discretion to notify the British Government of the
abrogation of the Convention of August 6, 1827, relative to the joint
occupation of the Oregon Territory. As the President himself had
requested the resolution, the episode supports the theory that
international conventions to which the United States is party, even
those terminable on notice, are terminable only by act of Congress.[183]
Subsequently Congress has often passed resolutions denouncing treaties
or treaty provisions which by their own terms were terminable on notice,
and Presidents have usually carried out such resolutions, though not
invariably.[184] By the La Follette-Furuseth Seamen's Act, approved
March 4, 1915,[185] President Wilson was directed, "within ninety days
after the passage of the act, to give notice to foreign governments that
so much of any treaties as might be in conflict with the provisions of
the act would terminate on the expiration of the periods of notice
provided for in such treaties," and the required notice was given.[186]
When, however, by section 34 of the Jones Merchant Marine Act of 1920
the same President was authorized and directed within ninety days to
give notice to the other parties to certain treaties, which the act
infracted, of the termination thereof, he refused to comply, asserting
that he "did not deem the direction contained in section 34 * * * an
exercise of any constitutional power possessed by Congress."[187] The
same intransigent attitude was continued by Presidents Harding and
Coolidge.


DETERMINATION WHETHER A TREATY HAS LAPSED

At the same time, there is clear judicial recognition that the President
may without consulting Congress validly determine the question whether
specific treaty provisions have lapsed. The following passage from
Justice Lurton's opinion in Charlton _v._ Kelly[188] is pertinent: "If
the attitude of Italy was, as contended, a violation of the obligation
of the treaty, which, in international law, would have justified the
United States in denouncing the treaty as no longer obligatory, it did
not automatically have that effect. If the United States elected not to
declare its abrogation, or come to a rupture, the treaty would remain in
force. It was only voidable, not void; and if the United States should
prefer, it might waive any breach which in its judgment had occurred and
conform to its own obligation as if there had been no such breach. * * *
That the political branch of the Government recognizes the treaty
obligation as still existing is evidenced by its action in this case.
* * * The executive department having thus elected to waive any right to
free itself from the obligation to deliver up its own citizens, it is
the plain duty of this court to recognize the obligation to surrender
the appellant as one imposed by the treaty as the supreme law of the
land as affording authority for the warrant of extradition."[189] So
also it is primarily for the political departments to determine whether
certain provisions of a treaty have survived a war in which the other
contracting state ceased to exist as a member of the international
community.[190]


STATUS OF A TREATY A POLITICAL QUESTION

All in all, it would seem that the vast weight both of legislative
practice and of executive opinion supports the proposition that the
power of terminating outright international compacts to which the United
States is party belongs, as a prerogative of sovereignty, to Congress
alone, but that the President may, as an incident of his function of
interpreting treaties preparatory to enforcing them, sometimes
authoritatively find that a treaty contract with another power has or
has not been breached by the latter and whether, for that reason, it is
or is not longer binding on the United States.[191] At any rate, it is
clear that any such questions which arise concerning a treaty are of a
political nature and will not be decided by the courts. In the words of
Justice Curtis in Taylor _v._ Morton:[192] It is not "a judicial
question, whether a treaty with a foreign sovereign has been violated by
him; whether the consideration of a particular stipulation in a treaty,
has been voluntarily withdrawn by one party, so that it is no longer
obligatory on the other; whether the views and acts of a foreign
sovereign, manifested through his representative have given just
occasion to the political departments of our government to withhold the
execution of a promise contained in a treaty, or to act in direct
contravention of such promise. * * * These powers have not been confided
by the people to the judiciary, which has no suitable means to exercise
them; but to the executive and the legislative departments of our
government. They belong to diplomacy and legislation, and not to the
administration of existing laws. And it necessarily follows, that if
they are denied to Congress and the Executive, in the exercise of their
legislative power, they can be found nowhere, in our system of
government." Chief Justice Marshall's language in Foster _v._
Neilson[193] is to the same effect.


TREATIES AND THE NECESSARY AND PROPER CLAUSE

What power, or powers, does Congress exercise when it enacts legislation
for the purpose of carrying treaties of the United States into effect?
When the subject matter of the treaty falls within the ambit of
Congress's enumerated powers (those listed in the first 17 clauses of
article I, section 8 of the Constitution), then it is these powers which
it exercises in carrying such treaty into effect. But if the treaty
deals with a subject which falls normally to the States to legislate
upon, or a subject which falls within the national jurisdiction because
of its international character, then recourse is had to the necessary
and proper clause. Thus, of itself, Congress would have no power to
confer judicial powers upon foreign consuls in the United States, but
the treaty-power can do this and has done it repeatedly and Congress has
supplemented these treaties by appropriate legislation.[194] Again,
Congress could not confer judicial power upon American consuls abroad to
be there exercised over American citizens, but the treaty-power can and
has, and Congress has passed legislation perfecting such agreements and
such legislation has been upheld.[195] Again, Congress of itself could
not provide for the extradition of fugitives from justice, but the
treaty-power can and has done so scores of times, and Congress has
passed legislation carrying our extradition treaties into effect.[196]
Again, Congress could not ordinarily penalize private acts of violence
within a State, but it can punish such acts if they deprive aliens of
their rights under a treaty.[197] Referring to such legislation the
Court has said: "The power of Congress to make all laws necessary and
proper for carrying into execution as well the powers enumerated in
section 8 of article I of the Constitution, as all others vested in the
Government of the United States, or in any Department or the officers
thereof, includes the power to enact such legislation as is appropriate
to give efficacy to any stipulations which it is competent for the
President by and with the advice and consent of the Senate to insert in
a treaty with a foreign power."[198] In a word, the treaty-power cannot
purport to amend the Constitution by adding to the list of Congress's
enumerated powers, but having acted, the consequence will often be that
it has provided Congress with an opportunity to enact measures which
independently of a treaty Congress could not pass; and the only question
that can be raised as to such measures will be whether they are
"necessary and proper" measures for the carrying of the treaty in
question into operation. The matter is further treated under the next
heading.


CONSTITUTIONAL LIMITS OF THE TREATY-MAKING POWER; MISSOURI _v._
HOLLAND

Our system being theoretically opposed to the lodgement anywhere in
government of unlimited power, the question of the scope of this
exclusive power has often been pressed upon the Court, which has
sometimes used language vaguely suggestive of limitation, as in the
following passage from Justice Field's opinion for the Court in Geofroy
_v._ Riggs,[199] which was decided in 1890: "The treaty power, as
expressed in the Constitution, is in terms unlimited except by those
restraints which are found in that instrument against the action of the
government or of its departments, and those arising from the nature of
the government itself and of that of the States. It would not be
contended that it extends so far as to authorize what the Constitution
forbids, or a change in the character of the government or in that of
one of the States, or a cession of any portion of the territory of the
latter, without its consent. * * * But with these exceptions, it is not
perceived that there is any limit to the questions which can be adjusted
touching any matter which is properly the subject of negotiation with a
foreign country."[200] The fact is none the less, that no treaty of the
United States nor any provision thereof has ever been found by the Court
to be unconstitutional. The most persistently urged proposition in
limitation of the treaty-making power has been that it must not invade
certain reserved powers of the States. In view of the sweeping language
of the supremacy clause, it is hardly surprising that this argument has
not prevailed.[201] Nevertheless, the Court was forced to answer it as
recently as 1923. This was in the case of Missouri _v._ Holland,[202] in
which the Court sustained a treaty between the United States and Great
Britain providing for the reciprocal protection of migratory birds which
make seasonal flights from Canada into the United States and vice versa,
and an act of Congress passed in pursuance thereof which authorized the
Department of Agriculture to draw up regulations to govern the hunting
of such birds, subject to the penalties specified by the act. To the
objection that the treaty and implementing legislation invaded the
acknowledged police power of the State in the protection of game within
its borders, Justice Holmes, speaking for the Court, answered: "Acts of
Congress are the supreme law of the land only when made in pursuance of
the Constitution, while treaties are declared to be so when made under
the authority of the United States. It is open to question whether the
authority of the United States means more than the formal acts
prescribed to make the convention. We do not mean to imply that there
are no qualifications to the treaty-making power; but they must be
ascertained in a different way. It is obvious that there may be matters
of the sharpest exigency for the national well being that an act of
Congress could not deal with but that a treaty followed by such an act
could, and it is not lightly to be assumed that, in matters requiring
national action, 'a power which must belong to and somewhere reside in
every civilized government' is not to be found. (Andrews _v._ Andrews,
188 U.S. 14, 33 (1903)). What was said in that case with regard to the
powers of the States applies with equal force to the powers of the
nation in cases where the States individually are incompetent to act.
* * * The treaty in question does not contravene any prohibitory words
to be found in the Constitution. The only question is whether it is
forbidden by some invisible radiation from the general terms of the
Tenth Amendment. We must consider what this country has become in
deciding what that Amendment has reserved."[203] And again: "Here a
national interest of very nearly the first magnitude is involved. It can
be protected only by national action in concert with that of another
power. The subject-matter is only transitorily within the State and has
no permanent habitat therein. But for the treaty and the statute there
soon might be no birds for any powers to deal with. We see nothing in
the Constitution that compels the Government to sit by while a food
supply is cut off and the protectors of our forests and our crops are
destroyed. It is not sufficient to rely upon the States. The reliance is
vain, and were it otherwise, the question is whether the United States
is forbidden to act. We are of opinion that the treaty and statute must
be upheld."[204]

Justice Sutherland's later assertion in the Curtiss-Wright case[205]
that the powers "to declare and wage war, to conclude peace, to make
treaties," etc., belong to "the Federal Government as the necessary
concomitants of nationality" leaves even less room for the notion of a
limited treaty-making power, as indeed appears from his further
statement that "as a member of the family of nations, the right and
power of the United States * * * are equal to the right and power of the
other members of the international family."[206] No doubt there are
specific limitations in the Constitution in favor of private rights
which "go to the roots" of all power. But these do not include the
reserved powers of the States; nor do they appear to limit the National
Government in its choice of matters concerning which it may treat with
other governments.[207]


INDIAN TREATIES

In the early cases of Cherokee Nation _v._ Georgia[208] and Worcester
_v._ Georgia[209] the Court, speaking by Chief Justice Marshall, held,
first, that the Cherokee Nation was not a foreign state within the
meaning of that clause of the Constitution which extends the judicial
power of the United States to controversies "between a State or the
citizens thereof and foreign states, citizens or subjects"; secondly,
that: "The Constitution, by declaring treaties already made, as well as
those to be made, to be the supreme law of the land, had adopted and
sanctioned the previous treaties with the Indian nations, and
consequently admits their rank among those powers who are capable of
making treaties. The words 'treaty' and 'nation' are words of our own
language, selected in our diplomatic and legislative proceedings, by
ourselves, having each a definite and well understood meaning. We have
applied them to Indians, as we have applied them to the other nations of
the earth. They are applied to all in the same sense."[210]

Later cases established that the power to make treaties with the Indian
tribes was coextensive with the power to make treaties with foreign
nations;[211] that the States were incompetent to interfere with rights
created by such treaties;[212] that as long as the United States
recognized the national character of a tribe, its members were under the
protection of treaties and of the laws of Congress and their property
immune from taxation by a State;[213] that a stipulation in an Indian
treaty that laws forbidding the introduction of liquors into Indian
territory was operative without legislation, and binding on the courts
although the territory was within an organized county of the
States;[214] that an act of Congress contrary to a prior Indian treaty
repealed it.[215]


Present Status of Indian Treaties

Today Indian treaties is a closed account in the Constitutional Law
ledger. By a rider inserted in the Indian Appropriation Act of March 3,
1871 it was provided "That hereafter no Indian nation or tribe within
the territory of the United States shall be acknowledged or recognized
as an independent nation, tribe, or power with whom the United States
may contract by treaty: _Provided, further_, that nothing herein
contained shall be construed to invalidate or impair the obligation of
any treaty heretofore lawfully made and ratified with any such Indian
nation or tribe."[216] Subsequently, the power of Congress to withdraw
or modify tribal rights previously granted by treaty has been invariably
upheld. Thus the admission of Wyoming as a State was found to abrogate,
_pro tanto_, a treaty guaranteeing certain Indians the right to hunt on
unoccupied lands of the United States so long as game may be found
thereon and to bring hunting by the Indians within the police power of
the State.[217] Similarly, statutes modifying rights of members in
tribal lands,[218] granting a right of way for a railroad through lands
ceded by treaty to an Indian tribe,[219] or extending the application of
revenue laws respecting liquor and tobacco over Indian territories,
despite an earlier treaty exemption,[220] have been sustained. When, on
the other hand, definite property rights have been conferred upon
individual Indians, whether by treaty or under an act of Congress, they
are protected by the Constitution to the same extent and in the same way
as the private rights of other residents or citizens of the United
States. Hence it was held that certain Indian allottees under an
agreement according to which, in part consideration of their
relinquishment of all their claim to tribal property, they were to
receive in severalty allotments of lands which were to be nontaxable for
a specified period, acquired vested rights of exemption from State
taxation which were protected by the Fifth Amendment against abrogation
by Congress.[221]


International Agreements Without Senate Approval

The capacity of the United States to enter into agreements with other
nations is not exhausted in the treaty-making power. The Constitution
recognizes a distinction between "treaties" and "agreements" or
"compacts," but does not indicate what the difference is; and what
difference there once may have been has been seriously blurred in
practice within recent decades. The President's power to enter into
agreements or compacts with other governments without consulting the
Senate must be referred to his powers as organ of foreign relations and
as Commander in Chief. From an early date, moreover, Congress has
authorized executive agreements within the field of its powers, postal
agreements, trade-mark and copyright agreements, reciprocal trade
agreements. Executive agreements may also stem from treaties.[222]


ROUTINE EXECUTIVE AGREEMENTS

Many types of executive agreements comprise the ordinary daily grist of
the diplomatic mill. Among these are such as apply to minor territorial
adjustments, boundary rectifications, the policing of boundaries, the
regulation of fishing rights, private pecuniary claims against another
government or its nationals, in Story's words, "the mere private rights
of sovereignty."[223] Crandall lists scores of such agreements entered
into with other governments by the authorization of the President.[224]
Such agreements are ordinarily directed to particular and comparatively
trivial disputes and by the settlement the effect of these cease _ipso
facto_ to be operative. Also there are such time-honored diplomatic
devices as the "protocol" which marks a stage in the negotiation of a
treaty, and the _modus vivendi_, which is designed to serve as a
temporary substitute for one. Executive agreements become of
constitutional significance when they constitute a determinative factor
of future foreign policy and hence of the country's destiny. Within
recent decades, in consequence particularly of our participation in
World War II and our immersion in the conditions of international
tension which have prevailed both before and after this war, Presidents
have entered into agreements with other governments some of which have
approximated temporary alliances. It cannot be justly said, however,
that in so doing they have acted without considerable support from
precedent.


LAW-MAKING EXECUTIVE AGREEMENTS

An early instance of executive treaty-making was the agreement by which
President Monroe in 1817 brought about a delimitation of armaments on
the Great Lakes. The arrangement was effected by an exchange of notes,
which nearly a year later was laid before the Senate with a query as to
whether it was within the President's power, or whether advice and
consent of the Senate were required. The Senate approved the agreement
by the required two-thirds vote, and it was forthwith proclaimed by the
President without there having been a formal exchange of
ratifications.[225] Of a kindred type, and owing much to the President's
capacity as Commander in Chief, was a series of agreements entered into
with Mexico between 1882 and 1896 according each country the right to
pursue marauding Indians across the common border.[226] Commenting on
such an agreement, the Court remarked, a bit uncertainly: "While no act
of Congress authorizes the executive department to permit the
introduction of foreign troops, the power to give such permission
without legislative assent was probably assumed to exist from the
authority of the President as commander in chief of the military and
naval forces of the United States. It may be doubted, however, whether
such power could be extended to the apprehension of deserters [from
foreign vessels] in the absence of positive legislation to that
effect."[227] Justice Gray and three other Justices were of the opinion
that such action by the President must rest upon express treaty or
statute.[228]


PRESIDENT McKINLEY'S CONTRIBUTION

Notable expansion of Presidential power in this field first became
manifest in the administration of President McKinley. At the outset of
war with Spain the President proclaimed that the United States would
consider itself bound for the duration by the last three principles of
the Declaration of Paris, a course which, as Professor Wright observes,
"would doubtless go far toward establishing these three principles as
international law obligatory upon the United States in future
wars."[229] Hostilities with Spain were brought to an end in August 1898
by an armistice the conditions of which largely determined the
succeeding treaty of peace,[230] just as did the Armistice of November
11, 1918, determine in great measure the conditions of the final peace
with Germany in 1918. It was also President McKinley who in 1900,
relying on his own sole authority as Commander in Chief, contributed a
land force of 5,000 men and a naval force to cooperate with similar
contingents from other Powers to rescue the legations in Peking from the
Boxers; and a year later, again without consulting either Congress or
the Senate, accepted for the United States the Boxer Indemnity Protocol
between China and the intervening Powers.[231] Commenting on the Peking
protocol Willoughby quotes with approval the following remark: "This
case is interesting, because it shows how the force of circumstances
compelled us to adopt the European practice with reference to an
international agreement, which, aside from the indemnity question, was
almost entirely political in character. * * *, purely political treaties
are, under constitutional practice in Europe, usually made by the
executive alone. The situation in China, however, abundantly justified
President McKinley in not submitting the protocol to the Senate. The
remoteness of Pekin, the jealousies between the allies, and the shifting
evasive tactics of the Chinese Government, would have made impossible
anything but an agreement on the spot."[232]


EXECUTIVE AGREEMENTS AFFECTING FAR EASTERN RELATIONS

It was during this period, too, that John Hay, as McKinley's Secretary
of State, initiated his "Open Door" policy, by notes to Great Britain,
Germany, and Russia, which were soon followed by similar notes to
France, Italy and Japan. These in substance asked the recipients to
declare formally that they would not seek to enlarge their respective
interests in China at the expense of any of the others; and all
responded favorably.[233] Then in 1905 the first Roosevelt, seeking to
arrive at a diplomatic understanding with Japan, instigated an exchange
of opinions between Secretary of War Taft, then in the Far East, and
Count Katsura, amounting to a secret treaty, by which the Roosevelt
administration assented to the establishment by Japan of a military
protectorate in Korea.[234] Three years later Secretary of State Root
and the Japanese ambassador at Washington entered into the Root-Takahira
Agreement to uphold the status quo in the Pacific and maintain the
principle of equal opportunity for commerce and industry in China.[235]
Meantime, in 1907, by a "Gentlemen's Agreement," the Mikado's government
had agreed to curb the emigration of Japanese subjects to the United
States, thereby relieving the Washington government from the necessity
of taking action that would have cost Japan loss of face. The final of
this series of executive agreements touching American relations in and
with the Far East was the product of President Wilson's diplomacy. This
was the Lansing-Ishii Agreement, embodied in an exchange of letters
dated November 2, 1917, by which the United States recognized Japan's
"special interests" in China, and Japan assented to the principle of the
Open Door in that country.[236]


THE INTERNATIONAL OBLIGATION OF EXECUTIVE AGREEMENTS

The question naturally suggests itself: What sort of obligation does an
agreement of the above description impose upon the United States? The
question was put to Secretary Lansing himself in 1918 by a member of the
Foreign Relations Committee, as follows: "Has the so-called
Lansing-Ishii Agreement any binding force on this country?" and replied
that it had not; that it was simply a declaration of American policy so
long as the President or State Department might choose to continue
it.[237] Actually, it took the Washington Conference of 1921, two solemn
treaties and an exchange of notes to get rid of it; while the
"Gentlemen's Agreement," first drawn in 1907, was finally put an end to,
after seventeen years, only by an act of Congress.[238] That executive
agreements are sometimes cognizable by the courts was indicated
earlier. The matter is further treated immediately below.


THE LITVINOV AGREEMENT OF 1933

The executive agreement attained its fullest development as an
instrument of foreign policy under President Franklin D. Roosevelt, even
at times threatening to replace the treaty-making power, if not formally
yet actually, as a determinative element in the field of foreign policy.
Mr. Roosevelt's first important utilization of the executive agreement
device took the form of an exchange of notes on November 16, 1933 with
Maxim M. Litvinov, People's Commissar for Foreign Affairs, whereby
American recognition was extended to the Union of Soviet Socialist
Republics in consideration of certain pledges, the first of which was
the promise to restrain any persons or organizations "under its direct
or indirect control, * * *, from any act overt or covert liable in any
way whatsoever to injure the tranquillity, prosperity, order, or
security of the whole or any part of the United States, * * *"[239]


United States _v._ Belmont

The Litvinov Agreement is also noteworthy for giving rise to two cases
which afforded the Court the opportunity to evaluate the executive
agreement in terms of Constitutional Law. The earlier of these was
United States _v._ Belmont,[240] decided in 1937. The point at issue was
whether a district court of the United States was free to dismiss an
action by the United States, as assignee of the Soviet government, for
certain moneys which were once the property of a Russian metal
corporation whose assets had been appropriated by the Soviet government.
The Court, speaking by Justice Sutherland, said "No." The President's
act in recognizing the Soviet government, and the accompanying
agreements, constituted, said the Justice, an international compact
which the President, "as the sole organ" of international relations for
the United States, was authorized to enter upon without consulting the
Senate. Nor did State laws and policies make any difference in such a
situation; for while the supremacy of treaties is established by the
Constitution in express terms, yet the same rule holds "in the case of
all international compacts and agreements from the very fact that
complete power over international affairs is in the National Government
and is not and cannot be subject to any curtailment or interference on
the part of the several States."[241]


United States _v._ Pink; National Supremacy

In the United States _v._ Pink,[242] decided five years later, the same
course of reasoning was reiterated with added emphasis. The question
here involved was whether the United States was entitled under the
Executive Agreement of 1933 to recover the assets of the New York branch
of a Russian insurance company. The company argued that the decrees of
confiscation of the Soviet Government did not apply to its property in
New York, and could not consistently with the Constitution of the United
States and that of New York. The Court, speaking by Justice Douglas,
brushed these arguments aside. An official declaration of the Russian
government itself settled the question of the extraterritorial operation
of the Russian decree of nationalization and was binding on American
courts. The power to remove such obstacles to full recognition as
settlement of claims of our nationals was "a modest implied power of the
President who is the 'sole organ of the Federal Government in the field
of international relations' * * * It was the judgment of the political
department that full recognition of the Soviet Government required the
settlement of outstanding problems including the claims of our
nationals. * * * We would usurp the executive function if we held that
that decision was not final and conclusive on the courts. 'All
constitutional acts of power, whether in the executive or in the
judicial department, have as much legal validity and obligation as if
they proceeded from the legislature, * * *'[243] * * * It is, of
course, true that even treaties with foreign nations will be carefully
construed so as not to derogate from the authority and jurisdiction of
the States of this nation unless clearly necessary to effectuate the
national policy.[244] But State law must yield when it is inconsistent
with, or impairs the policy or provisions of, a treaty or of an
international compact or agreement.[245] Then, the power of a State to
refuse enforcement of rights based on foreign law which runs counter to
the public policy of the form * * * must give way before the superior
Federal policy evidenced by a treaty or international compact or
agreement.[246] * * * The action of New York in this case amounts in
substance to a rejection of a part of the policy underlying recognition
by this nation of Soviet Russia. Such power is not accorded a State in
our constitutional system. To permit it would be to sanction a dangerous
invasion of Federal authority. For it would 'imperil the amicable
relations between governments and vex the peace of nations.'[247] * * *
It would tend to disturb that equilibrium in our foreign relations which
the political departments of our national government has diligently
endeavored to establish. * * * No State can rewrite our foreign policy
to conform to its own domestic policies. Power over external affairs is
not shared by the States; it is vested in the national government
exclusively. It need not be so exercised as to conform to State laws or
State policies, whether they be expressed in constitutions, statutes,
or judicial decrees. And the policies of the States become wholly
irrelevant to judicial inquiry when the United States, acting within its
constitutional sphere, seeks enforcement of its foreign policy in the
courts." And while "aliens as well as citizens are entitled to the
protection of the Fifth Amendment," that amendment did not bar the
Federal Government "from securing for itself and our nationals priority
[against] creditors who are nationals of foreign countries and whose
claims arose abroad."[248]


THE HULL-LOTHIAN AGREEMENT, 1940

The fall of France in June 1940 inspired President Roosevelt to enter
the following summer into two executive agreements the total effect of
which was to transform the role of the United States from one of strict
neutrality toward the war then waging in Europe to one of
semi-belligerency. The first of these agreements was with Canada, and
provided that a Permanent Joint Board on Defense was to be set up at
once by the two countries which would "consider in the broad sense the
defense of the north half of the Western Hemisphere."[249] The second,
and more important agreement, was the Hull-Lothian Agreement of
September 2, 1940, under which, in return for the lease to it for
ninety-nine years of certain sites for naval bases in the British West
Atlantic, our Government handed over to the British Government fifty
over-age destroyers which had been recently reconditioned and
recommissioned.[250] The transaction, as justified in an opinion by the
Attorney General, amounted to a claim for the President, in his capacity
as Commander in Chief and organ of foreign relations, to dispose of
property of the United States, although the only power to do this which
the Constitution mentions is that which it assigns to Congress.[251]

On April 9, 1941, the State Department, in consideration of the fact
that Germany had, on April 9, 1940, occupied Denmark, entered into an
executive agreement with the Danish minister at Washington, whereby the
United States acquired the right to occupy Greenland for the duration,
for purposes of defense.[252]


WARTIME AGREEMENTS

That the post-war diplomacy of the United States has been greatly
influenced by such executive agreements as those which are associated
with Cairo, Teheran, Malta, and Potsdam, is evident.[253] The Executive
Agreement thus became, in an era in which the instability of
international relations forbade successful efforts at treaty-making, the
principal instrument of Presidential initiative in the field of foreign
relations. Whether the United Nations Charter and the Atlantic Pact
signalize the end of this era will doubtless appear in due course.


EXECUTIVE AGREEMENTS BY AUTHORIZATION OF CONGRESS

"The first known use of the executive agreement under the Constitution
of the United States," writes Dr. McClure, "was for the development of
international communication by means of the postal service. The second
Congress, in establishing the Post Office, which had theretofore been
dealt with through legislation carrying it on from year to year, enacted
that 'the Postmaster General may make arrangements with the Postmasters
in any foreign country for the reciprocal receipt and delivery of
letters and packets, through the post-offices.' It was further provided
that this act, of February 20, 1792, should 'be in force for the term of
two years, from the * * * first day of June next, and no longer.'"[254]


Reciprocal Trade Agreements

Under later legislation executive agreements, or what in effect were
such, have been authorized by which American patents, copyrights, and
trade-marks have secured protection abroad in return for like protection
by the United States of similar rights of foreign origin.[255] But the
most copious source of executive agreements has been legislation which
provided basis for reciprocal trade agreements, with other
countries.[256] The culminating act of this species was that of June 12,
1934, which provided, in part, as follows: "* * *, the President,
whenever he finds as a fact that any existing duties or other import
restrictions of the United States or any foreign country are unduly
burdening and restricting the foreign trade of the United States and
that the purpose above declared will be promoted by the means
hereinafter specified, is authorized from time to time--'(1) To enter
into foreign trade agreements with foreign governments or
instrumentalities thereof'; and '(2) To proclaim such modifications of
existing duties and other import restrictions, or such additional import
restrictions, or such continuance, and for such minimum periods, of
existing customs or excise treatment of any article covered by foreign
trade agreements, as are required or appropriate to carry out any
foreign trade agreement that the President has entered into hereunder.
No proclamation shall be made increasing or decreasing by more than 50
per centum any existing rate of duty or transferring any article between
the dutiable and free lists.'"[257] This act, renewed at three-year
intervals, is still in effect, and under it many trade agreements were
negotiated by former Secretary of State Hull.


The Constitutionality of Trade Agreements

In Field _v._ Clark,[258] decided in 1892 this type of legislation was
sustained against the objection that it attempted an unconstitutional
delegation "of both legislative and treaty-making powers." The Court met
the first objection with an extensive review of similar legislation from
the inauguration of government under the Constitution. The second
objection it met with the court statement that, "What has been said is
equally applicable to the objection that the third section of the act
invests the President with treaty-making power. The Court is of opinion
that the third section of the act of October 1, 1890, is not liable to
the objection that it transfers legislative and treaty-making power to
the President."[259] Although two Justices disagreed, the question has
never been revived. However, in Altman and Co. _v._ United States,[260]
decided twenty years later, a collateral question was passed upon. This
was whether an act of Congress which gave the federal circuit courts of
appeal jurisdiction of cases in which "the validity or construction of
any treaty, * * *, was drawn in question" embraced a case involving a
trade agreement which had been made under the sanction of the Tariff Act
of 1897. Said the Court: "While it may be true that this commercial
agreement, made under authority of the Tariff Act of 1897, § 3, was not
a treaty possessing the dignity of one requiring ratification by the
Senate of the United States, it was an international compact, negotiated
between the representatives of two sovereign nations and made in the
name and on behalf of the contracting countries, and dealing with
important commercial relations between the two countries, and was
proclaimed by the President. If not technically a treaty requiring
ratification, nevertheless it was a compact authorized by the Congress
of the United States, negotiated and proclaimed under the authority of
its President. We think such a compact is a treaty under the Circuit
Court of Appeals Act, and, where its construction is directly involved,
as it is here, there is a right of review by direct appeal to this
court."[261]


The Lend-Lease Act

The most extensive delegation of authority ever made by Congress to the
President to enter into executive agreements occurred within the field
of the cognate powers of the two departments, the field of foreign
relations; and took place at a time when war appeared to be in the
offing, and was in fact only a few months away. The legislation referred
to was the Lend-Lease Act of March 11, 1941[262] by which the President
was empowered for something over two years--and subsequently for
additional periods whenever he deemed it in the interest of the national
defense to do so, to authorize "the Secretary of War, the Secretary of
the Navy, or the head of any other department or agency of the
Government," to manufacture in the government arsenals, factories, and
shipyards, or "otherwise procure," to the extent that available funds
made possible, "defense articles"--later amended to include foodstuffs
and industrial products--and "sell, transfer title to, exchange, lease,
lend, or otherwise dispose of," the same to the "government of any
country whose defense the President deems vital to the defense of the
United States," and on any terms that he "deems satisfactory." Under
this authorization the United States entered into Mutual Aid Agreements
whereby the government furnished its allies in the recent war forty
billions of dollars worth of munitions of war and other supplies.


PRESIDENT PLUS CONGRESS VERSUS SENATE

The partnership which has developed within recent decades between the
President and Congress within the field of their cognate powers is also
illustrated by the act of February 9, 1922, creating a commission to
effect agreements respecting debts owed this country by certain other
governments, the resulting agreements to be approved by Congress;[263]
by the circumstances attending the drawing up in 1944 of the United
Nations Relief and Rehabilitation Convention;[264] by the Joint
Resolution of June 19, 1934, by which the President was authorized to
accept membership for the United States in the International Labor
Office.[265] It is altogether apparent in view of developments like
these that the executive agreement power, especially when it is
supported by Congressional legislation, today overlaps the treaty-making
power.


ARBITRATION AGREEMENTS

In 1904-1905 Secretary of State John Hay negotiated a series of treaties
providing for the general arbitration of international disputes. Article
II of the treaty with Great Britain, for example, provided as follows:
"In each individual case the High Contracting Parties, before appealing
to the Permanent Court of Arbitration, shall conclude a special
Agreement defining clearly the matter in dispute and the scope of the
powers of the Arbitrators, and fixing the periods for the formation of
the Arbitral Tribunal and the several stages of the procedure."[266] The
Senate approved the British treaty by the constitutional majority
having, however, first amended it by substituting the word "treaty" for
"agreement." President Theodore Roosevelt, characterizing the
"ratification" as equivalent to rejection, sent the treaties to repose
in the archives. "As a matter of historical practice," Dr. McClure
comments, "the _compromis_ under which disputes have been arbitrated
include both treaties and executive agreements in goodly numbers,"[267]
a statement supported by both Willoughby and Moore.[268]


AGREEMENTS UNDER THE UNITED NATIONS CHARTER

Article 43 of the United Nations Charter provides: "1. All Members of
the United Nations, in order to contribute to the maintenance of
international peace and security, undertake to make available to the
Security Council, on its call and in accordance with a special agreement
or agreements, armed forces, assistance, and facilities, including
rights of passage, necessary for the purpose of maintaining
international peace and security. 2. Such agreement or agreements shall
govern the numbers and types of forces, their degree of readiness and
general location, and the nature of the facilities and assistance to be
provided. 3. The agreement or agreements shall be negotiated as soon as
possible on the initiative of the Security Council. They shall be
concluded between the Security Council and Members or between the
Security Council and groups of Members and shall be subject to
ratification by the signatory states in accordance with their respective
constitutional processes."[269] This time the Senate did not boggle
over the word "agreement."


The United Nations Participation Act

The United Nations Participation Act of December 20, 1945 implements
these provisions as follows: "The President is authorized to negotiate a
special agreement or agreements with the Security Council which shall be
subject to the approval of the Congress by appropriate Act or joint
resolution, providing for the numbers and types of armed forces, their
degree of readiness and general location, and the nature of facilities
and assistance, including rights of passage, to be made available to the
Security Council on its call for the purpose of maintaining
international peace and security in accordance with article 43 of said
Charter. The President shall not be deemed to require the authorization
of the Congress to make available to the Security Council on its call in
order to take action under article 42 of said Charter and pursuant to
such special agreement or agreements the armed forces, facilities, or
assistance provided for therein: _Provided_, That nothing herein
contained shall be construed as an authorization to the President by the
Congress to make available to the Security Council for such purpose
armed forces, facilities, or assistance in addition to the forces,
facilities, and assistance provided for in such special agreement or
agreements."[270]


The Executive Establishment


"OFFICE"

"An office is a public station, or employment, conferred by the
appointment of government," and "embraces the ideas of tenure duration,
emolument, and duties."[271]


"AMBASSADORS AND OTHER PUBLIC MINISTERS"

The term "ambassadors and other public ministers," comprehends "all
officers having diplomatic functions, whatever their title or
designation."[272] It was originally assumed that such offices were
established by the Constitution itself, by reference to the Law of
Nations, with the consequence that appointments might be made to them
whenever the appointing authority--the President and Senate--deemed
desirable.[273] During the first sixty-five years of the Government
Congress passed no act purporting to create any diplomatic rank, the
entire question of grades being left with the President. Indeed, during
the administrations of Washington, Adams and Jefferson, and the first
term of Madison, no mention occurs in any appropriation act even, of
ministers of a specified rank at this or that place, but the provision
for the diplomatic corps consisted of so much money "for the expenses of
foreign intercourse," to be expended at the discretion of the President.
In Madison's second term the practice was introduced of allocating
special sums to the several foreign missions maintained by the
Government, but even then the legislative provisions did not purport to
curtail the discretion of the President in any way in the choice of
diplomatic agents.

In 1814, however, when President Madison appointed, during a recess of
the Senate, the Commissioners who negotiated the Treaty of Ghent the
theory on which the above legislation was based was drawn into question.
Inasmuch, it was argued, as these offices had never been established by
law, no vacancy existed to which the President could constitutionally
make a recess appointment. To this argument it was answered that the
Constitution recognizes "two descriptions of offices altogether
different in their nature, authorized by the constitution--one to be
created by law, and the other depending for their existence and
continuance upon contingencies. Of the first kind, are judicial,
revenue, and similar offices. Of the second, are Ambassadors, other
public Ministers, and Consuls. The first description organize the
Government and give it efficacy. They form the internal system, and are
susceptible of precise enumeration. When and how they are created, and
when and how they become vacant, may always be ascertained with perfect
precision. Not so with the second description. They depend for their
original existence upon the law, but are the offspring of the state of
our relations with foreign nations, and must necessarily be governed by
distinct rules. As an independent power, the United States have
relations with all other independent powers; and the management of those
relations is vested in the Executive."[274]

By the opening section of the act of March 1, 1855, it was provided that
"from and after the thirtieth day of June next, the President of the
United States shall, by and with the advice and consent of the Senate,
appoint representatives of the grade of envoys extraordinary and
ministers plenipotentiary," with a specified annual compensation for
each, "to the following countries, * * *" In the body of the act was
also this provision: "The President shall appoint no other than citizens
of the United States, who are residents thereof, or who shall be abroad
in the employment of the Government at the time of their appointment,
* * *."[275] The question of the interpretation of the act having been
referred to Attorney General Cushing, he ruled that its total effect,
aside from its salary provisions, was recommendatory only. It was "to
say, that if, and whenever, the President shall, by and with the advice
and consent of the Senate, appoint an envoy extraordinary and minister
plenipotentiary to Great Britain, or to Sweden, the compensation of that
minister shall be so much and no more."[276]

This line of reasoning is today only partially descriptive of facts. The
act of March 2, 1909, provides that new ambassadorships may be created
only with the consent of Congress,[277] while the Foreign Service Act of
1924[278] organizes the foreign service, both its diplomatic and its
consular divisions, in detail as to grades, salaries, appointments,
promotions, and in part as to duties. Theoretically the act leaves the
power of the President and Senate to appoint consular and diplomatic
officials intact, but in practice the vast proportion of the selections
are made in conformance with the civil service rules.


PRESIDENTIAL DIPLOMATIC AGENTS

What the President may have lost in consequence of the intervention of
Congress in this field, he has made good through his early conceded
right to employ, in the discharge of his diplomatic function, so-called
"special," "personal," or "secret" agents without consulting the Senate.
When President Jackson's right to resort to this practice was challenged
in the Senate in 1831, it was defended by Edward Livingston, Senator
from Louisiana, to such good purpose that Jackson made him Secretary of
State. "The practice of appointing secret agents," said Livingston, "is
coeval with our existence as a nation, and goes beyond our
acknowledgment as such by other powers. All those great men who have
figured in the history of our diplomacy, began their career, and
performed some of their most important services in the capacity of
secret agents, with full powers. Franklin, Adams, Lee, were only
commissioners; and in negotiating a treaty with the Emperor of Morocco,
the selection of the secret agent was left to the Ministers appointed to
make the treaty; and, accordingly, in the year 1785, Mr. Adams and Mr.
Jefferson appointed Thomas Barclay, who went to Morocco and made a
treaty, which was ratified by the Ministers at Paris.

"These instances show that, even prior to the establishment of the
Federal Government, secret plenipotentiaries were known, as well in the
practice of our own country as in the general law of nations: and that
these secret agents were not on a level with messengers,
letter-carriers, or spies, to whom it has been found necessary in
argument to assimilate them. On the 30th March, 1795, in the recess of
the Senate, by letters patent under the great broad seal of the United
States, and the signature of their President, (that President being
George Washington,) countersigned by the Secretary of State, David
Humphreys was appointed commissioner plenipotentiary for negotiating a
treaty of peace with Algiers. By instructions from the President, he was
afterwards authorized to employ Joseph Donaldson as agent in that
business. In May, of the same year, he did appoint Donaldson, who went
to Algiers, and in September of the same year concluded a treaty with
the Dey and Divan, which was confirmed by Humphreys, at Lisbon, on the
28th November in the same year, and afterwards ratified by the Senate on
the ---- day of ----, 1796, and an act passed both Houses on 6th May,
1796, appropriating a large sum, twenty-five thousand dollars annually,
for carrying it into effect."[279]

The precedent afforded by Humphrey's appointment without reference to
the Senate has since been multiplied many times, as witness the mission
of A. Dudley Mann to Hanover and other German states in 1846, of the
same gentleman to Hungary in 1849, of Nicholas Trist to Mexico in 1848,
of Commodore Perry to Japan in 1852, of J.H. Blount to Hawaii in
1893.[280] The last named case is perhaps the extremest of all. Blount,
who was appointed while the Senate was in session but without its advice
and consent, was given "paramount authority" over the American resident
minister at Hawaii and was further empowered to employ the military and
naval forces of the United States, if necessary to protect American
lives and interests. His mission raised a vigorous storm of protest in
the Senate, but the majority report of the committee which was created
to investigate the constitutional question vindicated the President in
the following terms: "A question has been made as to the right of the
President of the United States to dispatch Mr. Blount to Hawaii as his
personal representative for the purpose of seeking the further
information which the President believed was necessary in order to
arrive at a just conclusion regarding the state of affairs in Hawaii.
Many precedents could be quoted to show that such power has been
exercised by the President on various occasions, without dissent on the
part of Congress or the people of the United States. * * * These
precedents also show that the Senate of the United States, though in
session, need not be consulted as to the appointment of such agents,
* * *"[281] For recent decades the continued vitality of the practice
is attested by such names as Colonel House, late Norman H. Davis, who
filled the role of "ambassador at large" for a succession of
administrations of both parties, and Professor Philip Jessup, Mr.
Averell Harriman, and other "ambassadors at large" of the Truman
administration.

How is this practice to be squared with the express words of the
Constitution? Apparently, by stressing the fact that such appointments
or designations are ordinarily merely temporary and for special tasks,
and hence do not fulfill the tests of "office" in the strict sense.
(_See_ p. 445). In the same way the not infrequent practice of
Presidents of appointing Members of Congress as commissioners to
negotiate treaties and agreements with foreign governments may be
regularized, notwithstanding the provision of article I, section 6,
clause 2 of the Constitution, which provides that "no Senator or
Representative shall, * * *, be appointed to any civil Office under the
Authority of the United States, which shall have been created," during
his term; and no officer of the United States, "shall be a Member of
either House during his Continuance in Office."[282] The Treaty of Peace
with Spain, the treaty to settle the Behring Sea controversy, the treaty
establishing the boundary line between Canada and Alaska, were
negotiated by commissions containing Senators and Representatives.


CONGRESSIONAL REGULATION OF OFFICES

That the Constitution distinguishes between the creation of an office
and appointment thereto for the generality of national offices has never
been questioned. The former is _by law_, and takes place by virtue of
Congress's power to pass all laws necessary and proper for carrying into
execution the powers which the Constitution confers upon the government
of the United States and its departments and officers. As incidental to
the establishment of an office Congress has also the power to determine
the qualifications of the officer, and in so-doing necessarily limits
the range of choice of the appointing power. First and last, it has laid
down a great variety of qualifications, depending on citizenship,
residence, professional attainments, occupational experience, age, race,
property, sound habits, and so on. It has required that appointees be
representative of a political party, of an industry, of a geographic
region, or of a particular branch of the Government. It has confined the
President's selection to a small number of persons to be named by
others.[283] Indeed, it has contrived at times to designate a definite
eligibility, thereby virtually usurping the appointing power.[284]


CONDUCT IN OFFICE

Furthermore, Congress has very broad powers in regulating the conduct in
office of officers and employees of the United States, especially
regarding their political activities. By an act passed in 1876 it
prohibited "all executive officers or employees of the United States not
appointed by the President, with the advice and consent of the Senate,
* * * from requesting, giving to, or receiving from, any other officer
or employee of the Government, any money or property or other thing of
value for political purposes."[285] The validity of this measure having
been sustained,[286] the substance of it, with some elaborations, was
incorporated in the Civil Service Act of 1883.[287] By the Hatch
Act[288] all persons in the executive branch of the Government, or any
department or agency thereof, except the President and Vice President
and certain "policy determining" officers, are forbidden to "take an
active part in political management or political campaigns," although
they are still permitted to "express their opinions on all political
subjects and candidates." In the United Public Workers _v._
Mitchell[289] these provisions were upheld as "reasonable" against
objections based on Amendments I, V, IX, and X.


THE LOYALTY ISSUE

By section 9A of the Hatch Act of 1939, it is made "* * * unlawful for
any person employed in any capacity by any agency of the Federal
Government, whose compensation, or any part thereof, is paid from funds
authorized or appropriated by any act of Congress, to have membership in
any political party or organization which advocates the overthrow of our
constitutional form of government in the United States."[290] In support
of this provision the 79th Congress in its second session incorporated
in its appropriation acts a series of clauses which forbid the use of
any of the funds appropriated to pay the salary of any person who
advocates, or belongs to an organization which advocates, the overthrow
of the Government by force; or any person who strikes, or who belongs to
an organization of Government employees which asserts the right to
strike against the Government.[291] The apparent intention of this
proviso is to lay down a rule by which the appointing and disbursing
authorities will be bound. Since Congress has the conceded power to lay
down the qualifications of officers and employees of the United States;
and since few people would contend that officers or employees of the
National Government have a constitutional right to advocate its
overthrow or to strike against it, the above proviso would seem to be
entirely constitutional. President Truman's "Loyalty Order"--Executive
Order 9835--of March 21, 1947[292] is an outgrowth in part of this
legislation.


LEGISLATION INCREASING DUTIES OF AN OFFICER

Finally, Congress may devolve upon one already in office additional
duties which are germane to his office without thereby "rendering it
necessary that the incumbent should be again nominated and appointed."
Such legislation does not constitute an attempt by Congress to seize the
appointing power.[293]


"INFERIOR OFFICERS"; "EMPLOYEES"

Except the President and the Vice President all persons in the civil
service of the National Government are appointive, and fall into one of
three categories, those who are appointed by the President, "by and with
the advice and consent of the Senate"; inferior officers, whose
appointment Congress has vested by law "in the President alone, in the
courts of law, or in the heads of departments"; and employees, a term
which is here used in a peculiar sense. Ordinarily it denotes one who
stands in a contractual relationship to his employer, but here it
signifies all subordinate officials of the National Government receiving
their appointments at the hands of officials who are not specifically
recognized by the Constitution as capable of being vested by Congress
with the appointing power.[294] Inferior officers are usually officers
intended to be subordinate to those in whom their appointment is
vested;[295] but the requirement is by no means absolute.[296]


STAGES OF APPOINTMENT PROCESS


Nomination

The Constitution appears to distinguish three stages in appointments by
the President with the advice and consent of the Senate. The first is
the "nomination" of the candidate by the President alone; the second is
the assent of the Senate to the candidate's "appointment"; and the third
is the final appointment and commissioning of the appointee, by the
President.[297]


Senate Approval

The fact that the power of nomination belongs to the President alone
prevents the Senate from attaching conditions to its approval of an
appointment, such as it may do to its approval of a treaty. In the words
of an early opinion of the Attorney General: "The Senate cannot
originate an appointment. Its constitutional action is confined to the
simple affirmation or rejection of the President's nominations, and such
nominations fail whenever it rejects them. The Senate may suggest
conditions and limitations to the President, but it cannot vary those
submitted by him, for no appointment can be made except on his
nomination, agreed to without qualification or alteration."[298] This
view is borne out by early opinion[299] as well as by the record of
practice under the Constitution.


When Senate Consent Is Complete

Early in January, 1931 the Senate requested President Hoover to return
its resolution notifying him that it advised and consented to certain
nominations to the Federal Power Commission. In support of its action
the Senate invoked a long-standing rule permitting a motion to
reconsider a resolution confirming a nomination within "the next two
days of actual executive session of the Senate" and the recall of the
notification to the President of the confirmation. The nominees
involved having meantime taken the oath of office and entered upon the
discharge of their duties, the President responded with a refusal,
saying: "I cannot admit the power in the Senate to encroach upon the
executive functions by removal of a duly appointed executive officer
under the guise of reconsideration of his nomination." The Senate
thereupon voted to reconsider the nominations in question, again
approving two of the nominees, but rejecting the third, against whom it
instructed the District Attorney of the District of Columbia to
institute _quo warranto_ proceedings in the Supreme Court of the
District. In United States _v._ Smith[300] the Supreme Court overruled
the proceedings on the ground that the Senate had never before attempted
to apply its rule in the case of an appointee who had already been
installed in office on the faith of the Senate's initial consent and
notification to the President. In 1939 the late President Roosevelt
rejected a similar demand by the Senate, action which was not
challenged.[301]


Section 3. The President * * * shall Commission all the
Officers of the United States.


Commissioning the Officer

This, as applied in practice, does not mean that he is under
constitutional obligation to commission those whose appointments have
reached that stage, but merely that it is he and no one else who has the
power to commission them, which he may do at his discretion. The sealing
and delivery of the commission is, on the other hand, by the doctrine of
Marbury _v._ Madison, in the case both of appointees by the President
and Senate and by the President alone, a purely ministerial act which
has been lodged by statute with the Secretary of State and the
performance of which may be compelled by mandamus unless the appointee
has been in the meantime validly removed.[302] By an opinion of the
Attorney General many years later, however, the President, even after he
has signed a commission, still has a _locus poenitentiae_ and may
withhold it; nor is the appointee in office till he has his
commission.[303] This is probably the correct doctrine.[304]


Clause 3. 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.


RECESS APPOINTMENTS

Setting out from the proposition that the very nature of the executive
power requires that it shall always be "in capacity for action,"
Attorneys General early came to interpret "happen" to mean "happen to
exist," and long continued practice securely establishes this
construction. It results that whenever a vacancy may have occurred in
the first instance, or for whatever reason, if it still continues after
the Senate has ceased to sit and so cannot be consulted, the President
may fill it in the way described.[305] But a Senate "recess" does not
include holiday or temporary adjournments,[306] while by an act of
Congress, if the vacancy existed when the Senate was in session, the _ad
interim_ appointee may receive no salary until he has been confirmed by
the Senate.[307]


_AD INTERIM_ DESIGNATIONS

To be distinguished from the power to make recess appointments is the
power of the President to make temporary or _ad interim_ designations of
officials to perform the duties of other absent officials. Usually such
a situation is provided for in advance by a statute which designates the
inferior officer who is to act in place of his immediate superior. But
in the lack of such provision both theory and practice concede the
President the power to make the designation.[308]


THE REMOVAL POWER; THE MYERS CASE

Save for the provision which it makes for a power of impeachment of
"civil officers of the United States," the Constitution contains no
reference to a power to remove from office; and until its decision in
Myers _v._ United States,[309] October 25, 1926 the Supreme Court had
contrived to side-step every occasion for a decisive pronouncement
regarding the removal power, its extent, and location. The point
immediately at issue in the Myers case was the effectiveness of an order
of the Postmaster General, acting by direction of the President, to
remove from office a first class postmaster, in face of the following
provision of an act of Congress passed in 1876: "Postmasters of the
first, second, and third classes shall be appointed and may be removed
by the President by and with the advice and consent of the Senate, and
shall hold their offices for four years unless sooner removed or
suspended according to law."[310] A divided Court, speaking through
Chief Justice Taft, held the order of removal valid, and the statutory
provision just quoted void. The Chief Justice's main reliance was on the
so-called "decision of 1789," the reference being to Congress's course
that year in inserting in the act establishing the Department of State a
proviso which was meant to imply recognition that the Secretary would be
removable by the President at will. The proviso was especially urged by
Madison, who invoked in support of it the opening words of article II
and the President's duty to "take care that the laws be faithfully
executed." Succeeding passages of the Chief Justice's opinion erect on
this basis a highly selective account of doctrine and practice regarding
the removal power down to the Civil War which was held to yield the
following results: "That article II grants to the President the
executive power of the Government, i.e., the general administrative
control of those executing the laws, including the power of appointment
and removal of executive officers--a conclusion confirmed by his
obligation to take care that the laws be faithfully executed; that
article II excludes the exercise of legislative power by Congress to
provide for appointments and removals, except only as granted therein to
Congress in the matter of inferior offices; that Congress is only given
power to provide for appointments and removals of inferior officers
after it has vested, and on condition that it does vest, their
appointment in other authority than the President with the Senate's
consent; that the provisions of the second section of article II, which
blend action by the legislative branch, or by part of it, in the work of
the executive, are limitations to be strictly construed and not to be
extended by implication; that the President's power of removal is
further established as an incident to his specifically enumerated
function of appointment by and with the advice of the Senate, but that
such incident does not by implication extend to removals the Senate's
power of checking appointments; and finally that to hold otherwise would
make it impossible for the President, in case of political or other
differences with the Senate or Congress, to take care that the laws be
faithfully executed."[311]

The holding in the Myers case boils down to the proposition that the
Constitution endows the President with an illimitable power to remove
all officers in whose appointment he has participated with the exception
of judges of the United States. The motivation of the holding was not,
it may be assumed, any ambition on the Chief Justice's part to set
history aright--or awry.[312] Rather it was the concern which he voiced
in the following passage in his opinion: "There is nothing in the
Constitution which permits a distinction between the removal of the head
of a department or a bureau, when he discharges a political duty of the
President or exercises his discretion, and the removal of executive
officers engaged in the discharge of their other normal duties. The
imperative reasons requiring an unrestricted power to remove the most
important of his subordinates in their most important duties must,
therefore, control the interpretation of the Constitution as to all
appointed by him."[313] Thus spoke the former President Taft, and the
result of his prepossession was a rule which, as was immediately pointed
out, exposed the so-called "independent agencies," the Interstate
Commerce Commission, the Federal Trade Commission, and the like, to
Presidential domination.


"The Nature of the Office" Concept

Unfortunately, the Chief Justice, while professing to follow Madison's
leadership had omitted to weigh properly the very important observation
which the latter had made at the time regarding the office of
Comptroller of the Treasury. "The Committee," said Madison, "has gone
through the bill without making any provision respecting the tenure by
which the comptroller is to hold his office. I think it is a point
worthy of consideration, and shall, therefore, submit a few observations
upon it. It will be necessary to consider the nature of this office, to
enable us to come to a right decision on the subject; in analyzing its
properties, we shall easily discover they are not purely of an executive
nature. It seems to me that they partake of a judiciary quality as well
as executive; perhaps the latter obtains in the greatest degree. The
principal duty seems to be deciding upon the lawfulness and justice of
the claims and accounts subsisting between the United States and
particular citizens: this partakes strongly of the judicial character,
and there may be strong reasons why an officer of this kind should not
hold his office at the pleasure of the executive branch of the
government."[314] In Humphrey _v._ United States,[315] decided in 1935,
the Court seized upon "the nature of the office" concept and applied it
as a much needed corrective to the Myers holding.


The Humphrey Case

The material element of this case was that Humphrey, a member of the
Federal Trade Commission, was on October 7, 1933, notified by President
Roosevelt that he was "removed" from office, the reason being their
divergent views of public policy. In due course Humphrey sued for
salary. Distinguishing the Myers case, Justice Sutherland, speaking for
the unanimous Court, said: "A postmaster is an executive officer
restricted to the performance of executive functions. He is charged with
no duty at all related to either the legislative or judicial power. The
actual decision in the _Myers_ Case finds support in the theory that
such an office is merely one of the units in the executive department
and, hence, inherently subject to the exclusive and illimitable power of
removal by the Chief Executive, whose subordinate and aid he is. * * *
It goes no farther;--much less does it include an officer who occupies
no place in the executive department and who exercise no part of the
executive power vested by the Constitution in the President.

"The Federal Trade Commission is an administrative body created by
Congress to carry into effect legislative policies embodied in the
statute * * * Such a body cannot in any proper sense be characterized as
an arm or eye of the executive. Its duties are performed without
executive leave and, in the contemplation of the statute, must be free
from executive control. * * * We think it plain under the Constitution
that illimitable power of removal is not possessed by the President in
respect of officers of the character of those just named, [the
Interstate Commerce Commission, the Federal Trade Commission, the Court
of Claims]. The authority of Congress, in creating quasi-legislative or
quasi-judicial agencies, to require them to act in discharge of their
duties independently of executive control cannot well be doubted; and
that authority includes, as an appropriate incident, power to fix the
period during which they shall continue in office, and to forbid their
removal except for cause in the meantime. For it is quite evident that
one who holds his office only during the pleasure of another, cannot be
depended upon to maintain an attitude of independence against the
latter's will. * * *

"The result of what we now have said is this: Whether the power of the
President to remove an officer shall prevail, over the authority of
Congress to condition the power by fixing a definite term and precluding
a removal except for cause, will depend upon the character of the
office; the _Myers_ decision, affirming the power of the President alone
to make the removal, is confined to purely executive officers; and as to
officers of the kind here under consideration, we hold that no removal
can be made during the prescribed term for which the officer is
appointed, except for one or more of the causes named in the applicable
statute."[316]


Other Phases of Presidential Removal Power

Congress may "limit and restrict the power of removal as it deems best
for the public interests" in the case of inferior officers.[317] But in
the absence of specific legislative provision to the contrary, the
President may remove at his discretion an inferior officer whose term is
limited by statute,[318] or one appointed with the consent of the
Senate.[319] He may remove an officer of the army or navy at any time by
nominating to the Senate the officer's successor, provided the Senate
approves the nomination.[320] In 1940 the President was sustained in
removing Dr. E.A. Morgan from the chairmanship of TVA for refusal to
produce evidence in substantiation of charges which he had levelled at
his fellow directors.[321] Although no such cause of removal by the
President is stated in the act creating TVA, the President's action,
being reasonably required to promote the smooth functioning of TVA, was
within his duty to "take care that the laws be faithfully executed." So
interpreted, it did not violate the principle of administrative
independence set forth in Humphrey _v._ United States.[322]


THE PRESIDENTIAL AEGIS

Presidents have more than once had occasion to stand in a protective
relation to their subordinates, assuming their defense in litigation
brought against them[323] or pressing litigation in their behalf,[324]
refusing a call for papers from one of the Houses of Congress which
might be used, in their absence from the seat of government, to their
disadvantage,[325] challenging the constitutional validity of
legislation which he deemed detrimental to their interests.[326] There
is one matter, moreover, as to which he is able to spread his own
official immunity to them. The courts may not require the divulging of
confidential communications from or to the President, that is,
communications which they choose to regard as confidential.[327] Whether
a Congressional Committee of inquiry would be similarly powerless is an
interesting question which has not been adjudicated.[328] Thus far such
issues between the two departments have been adjusted politically.


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 * * *


Legislative Role of the President

The above clause, which imposes a duty rather than confers a power, is
the formal basis of the President's legislative leadership, which has
attained great proportions since 1900. This development, however,
represents the play of political and social forces rather than any
pronounced change in constitutional interpretation. Especially is it the
result of the rise of parties and the accompanying recognition of the
President as party leader, of the appearance of the National Nominating
Convention and the Party Platform, and of the introduction of the Spoils
System, an ever present help to Presidents in times of troubled
relations with Congress.[329] It is true that certain pre-Civil War
Presidents, mostly of Whig extraction, professed to entertain nice
scruples on the score of "usurping" legislative powers;[330] but still
earlier ones, Washington, Jefferson, and Jackson among them, took a very
different line, albeit less boldly and persistently than their later
imitators.[331] Today there is no subject on which the President may not
appropriately communicate to Congress, in as precise terms as he
chooses, his conception of its duty. Conversely, the President is not
obliged by this clause to impart information which, in his judgment,
should in the public interest be withheld.[332] The President has
frequently summoned both Houses into "extra" or "special sessions" for
legislative purposes, and the Senate alone for the consideration of
nominations and treaties. His power to adjourn the Houses has never been
exercised.


The Right of Reception


SCOPE OF THE POWER

"Ambassadors and other public ministers" embraces not only "all possible
diplomatic agents which any foreign power may accredit to the United
States"[333] but also, as a practical construction of the Constitution,
all foreign consular agents, who therefore may not exercise their
functions in the United States without an exequatur from the
President.[334] The power to "receive" ambassadors, etc., includes,
moreover, the right to refuse to receive them, to request their recall,
to dismiss them, and to determine their eligibility under our laws.[335]
Furthermore, this power makes the President the sole mouthpiece of the
nation in its dealings with other nations.


A PRESIDENTIAL MONOPOLY

Wrote Jefferson in 1790: "The transaction of business with foreign
nations is Executive altogether. It belongs, then, to the head of that
department, except as to such portions of it as are specially submitted
to the Senate. Exceptions are to be construed strictly."[336] So when
Citizen Genet, envoy to the United States from the first French
Republic, sought an exequatur for a consul whose commission was
addressed to the Congress of the United States, Jefferson informed him
that "as the President was the only channel of communication between the
United States and foreign nations, it was from him alone 'that foreign
nations or their agents are to learn what is or has been the will of the
nation;' that whatever he communicated as such, they had a right and
were bound to consider 'as the expression of the nation;' and that no
foreign agent could be 'allowed to question it,' or 'to interpose
between him and any other branch of government, under the pretext of
either's transgressing their functions.' Mr. Jefferson therefore
declined to enter into any discussion of the question as to whether it
belonged to the President under the Constitution to admit or exclude
foreign agents. 'I inform you of the fact,' he said, 'by authority from
the President.' Mr. Jefferson therefore returned the consul's commission
and declared that the President would issue no exequatur to a consul
except upon a commission correctly addressed."[337]


"THE LOGAN ACT"

When in 1798 a Philadelphia Quaker named Logan went to Paris on his own
to undertake a negotiation with the French Government with a view to
averting war between France and the United States his enterprise
stimulated Congress to pass "An Act to Prevent Usurpation of Executive
Functions,"[338] which, "more honored in the breach than the
observance," still survives on the statute books.[339] The year
following John Marshall, then a Member of the House of Representatives,
defended President John Adams for delivering a fugitive from justice to
Great Britain under the 27th article of the Jay Treaty, instead of
leaving the business to the courts. He said: "The President is the sole
organ of the nation in its external relations, and its sole
representative with foreign nations. Of consequence, the demand of a
foreign nation can only be made on him. He possesses the whole Executive
power. He holds and directs the force of the nation. Of consequence, any
act to be performed by the force of the nation is to be performed
through him."[340] Ninety-nine years later a Senate Foreign Relations
Committee took occasion to reiterate Marshall's doctrine with
elaboration.[341]


A FORMAL OR A FORMATIVE POWER?

In his attack, instigated by Jefferson, upon Washington's Proclamation
of Neutrality in 1793, at the outbreak of war between France and Great
Britain, Madison advanced the argument that all large questions of
foreign policy fell within the ambit of Congress, by virtue of its power
"to declare war," and in support of this proposition he disparaged the
Presidential function of reception, in the following words: "I shall not
undertake to examine, what would be the precise extent and effect of
this function in various cases which fancy may suggest, or which time
may produce. It will be more proper to observe, in general, and every
candid reader will second the observation, that little, if anything,
more was intended by the clause, than to provide for a particular mode
of communication, _almost_ grown into a right among modern nations; by
pointing out the department of the government, most proper for the
ceremony of admitting public ministers, of examining their credentials,
and of authenticating their title to the privileges annexed to their
character by the law of nations. This being the apparent design of the
constitution, it would be highly improper to magnify the function into
an important prerogative, even when no rights of other departments could
be affected by it."[342]


THE PRESIDENT'S DIPLOMATIC ROLE

Hamilton, although he had expressed substantially the same view in The
Federalist regarding the power of reception,[343] adopted a very
different conception of it in defense of Washington's proclamation.
Writing over the pseudonym "Pacificus," he said: "The right of the
executive to receive ambassadors and other public ministers, may serve
to illustrate the relative duties of the executive and legislative
departments. This right includes that of judging, in the case of a
revolution of government in a foreign country, whether the new rulers
are competent organs of the national will, and ought to be recognized,
or not; which, where a treaty antecedently exists between the United
States and such nation, involves the power of continuing or suspending
its operation. For until the new government is _acknowledged_, the
treaties between the nations, so far at least as regards _public_
rights, are of course suspended. This power of determining virtually
upon the operation of national treaties, as a consequence of the power
to receive public ministers, is an important instance of the right of
the executive, to decide upon the obligations of the country with regard
to foreign nations. To apply it to the case of France, if there had been
a treaty of alliance, offensive and defensive, between the United States
and that country, the unqualified acknowledgment of the new government
would have put the United States in a condition to become an associate
in the war with France, and would have laid the legislature under an
obligation, if required, and there was otherwise no valid excuse, of
exercising its power of declaring war. This serves as an example of the
right of the executive, in certain cases, to determine the condition of
the nation, though it may, in its consequences, affect the exercise of
the power of the legislature to declare war. Nevertheless, the executive
cannot thereby control the exercise of that power. The legislature is
still free to perform its duties, according to its own sense of them;
though the executive, in the exercise of its constitutional powers, may
establish an antecedent state of things, which ought to weigh in the
legislative decision. The division of the executive power in the
Constitution, creates a _concurrent_ authority in the cases to which it
relates."[344]


JEFFERSON'S REAL POSITION

Nor did Jefferson himself officially support Madison's point of view, as
the following extract from his "minutes of a Conversation," which took
place July 10, 1793, between himself and Citizen Genet, show: "He asked
if they [Congress] were not the sovereign. I told him no, they were
sovereign in making laws only, the executive was sovereign in executing
them, and the judiciary in construing them where they related to their
department. 'But,' said he, 'at least, Congress are bound to see that
the treaties are observed.' I told him no; there were very few cases
indeed arising out of treaties, which they could take notice of; that
the President is to see that treaties are observed. 'If he decides
against the treaty, to whom is a nation to appeal?' I told him the
Constitution had made the President the last appeal. He made me a bow,
and said, that indeed he would not make me his compliments on such a
Constitution, expressed the utmost astonishment at it, and seemed never
before to have had such an idea."[345]


THE POWER OF RECOGNITION

In his endeavor in 1793 to minimize the importance of the President's
power of reception Madison denied that it involved cognizance of the
question, whether those exercising the government of the accrediting
State have the right along with the possession. He said: "This belongs
to the nation, and to the nation alone, on whom the government operates.
* * * It is evident, therefore, that if the executive has a right to
reject a public minister, it must be founded on some other consideration
than a change in the government, or the newness of the government; and
consequently a right to refuse to acknowledge a new government cannot be
implied by the right to refuse a public minister. It is not denied that
there may be cases in which a respect to the general principles of
liberty, the essential rights of the people, or the overruling
sentiments of humanity, might require a government, whether new or old,
to be treated as an illegitimate despotism. Such are in fact discussed
and admitted by the most approved authorities. But they are great and
extraordinary cases, by no means submitted to so limited an organ of the
national will as the executive of the United States; and certainly not
to be brought by any torture of words, within the right to receive
ambassadors."[346]

Hamilton, with the case of Genet before him, had taken the contrary
position, which history has ratified. In consequence of his power to
receive and dispatch diplomatic agents, but more especially the former,
the President possesses the power to recognize new States, communities
claiming the status of belligerency, and changes of government in
established states; also, by the same token, the power to decline
recognition, and thereby decline diplomatic relations with such new
States or governments. The affirmative precedents down to 1906 are
succinctly summarized by John Bassett Moore in his famous Digest, as
follows: "In the preceding review of the recognition, respectively, of
the new states, new governments, and belligerency, there has been made
in each case a precise statement of facts, showing how and by whom the
recognition was accorded. In every case, as it appears, of a new
government and of belligerency, the question of recognition was
determined solely by the Executive. In the case of the Spanish-American
republics, of Texas, of Hayti, and of Liberia, the President, before
recognizing the new state, invoked the judgment and cooperation of
Congress; and in each of these cases provision was made for the
appointment of a minister, which, when made in due form, constitutes, as
has been seen, according to the rules of international law, a formal
recognition. In numerous other cases, the recognition was given by the
Executive solely on his own responsibility."[347]


The Case of Cuba

The question of Congress's right also to recognize new states was
prominently raised in connection with Cuba's final and successful
struggle for independence. Beset by numerous legislative proposals of a
more or less mandatory character, urging recognition upon the President,
the Senate Foreign Relations Committee, in 1897, made an elaborate
investigation of the whole subject and came to the following conclusions
as to this power: "The 'recognition' of independence or belligerency of
a foreign power, technically speaking, is distinctly a diplomatic
matter. It is properly evidenced either by sending a public minister to
the Government thus recognized, or by receiving a public minister
therefrom. The latter is the usual and proper course. Diplomatic
relations with a new power are properly, and customarily inaugurated at
the request of that power, expressed through an envoy sent for the
purpose. The reception of this envoy, as pointed out, is the act of the
President alone. The next step, that of sending a public minister to the
nation thus recognized, is primarily the act of the President. The
Senate can take no part in it at all, until the President has sent in a
nomination. Then it acts in its executive capacity, and, customarily, in
'executive session.' The legislative branch of the Government can
exercise no influence over this step except, very indirectly, by
withholding appropriations. * * * Nor can the legislative branch of the
Government hold any communications with foreign nations. The executive
branch is the sole mouthpiece of the nation in communication with
foreign sovereignties. Foreign nations communicate only through their
respective executive departments. Resolutions of their legislative
departments upon diplomatic matters have no status in international law.
In the department of international law, therefore, properly speaking, a
Congressional recognition of belligerency or independence would be a
nullity. * * * Congress can help the Cuban insurgents by legislation in
many ways, but it cannot help them legitimately by mere declarations, or
by attempts to engage in diplomatic negotiations, if our interpretation
of the Constitution is correct. That it is correct * * * [is] shown by
the opinions of jurists and statesmen of the past."[348] Congress was
able ultimately to bundle a clause recognizing the independence of Cuba,
as distinguished from its government, into the declaration of war of
April 11, 1898 against Spain. For the most part, the sponsors of the
clause defended it by the following line of reasoning. Diplomacy, they
said, was now at an end and the President himself had appealed to
Congress to provide a solution for the Cuban situation. In response
Congress was about to exercise its constitutional power of declaring
war, and it has consequently the right to state the purpose of the war
which it was about to declare.[349] The recognition of the Union of
Soviet Socialist Republics in 1933 was an exclusively Presidential act.


THE POWER OF NONRECOGNITION

The potentialities of nonrecognition were conspicuously illustrated by
President Woodrow Wilson when he refused, early in 1913, to recognize
Provisional President Huerta as the _de facto_ government of Mexico,
thereby contributing materially to Huerta's downfall the year following.
At the same time Wilson announced a general policy of nonrecognition in
the case of any government founded on acts of violence; and while he
observed this rule with considerable discretion, he consistently refused
to recognize the Union of Soviet Socialist Republics, and his successors
prior to President Franklin D. Roosevelt did the same. The refusal of
the Hoover Administration to recognize the independence of the Japanese
puppet state of Manchukuo early in 1932 was based on kindred grounds.
Nonrecognition of the Chinese Communist government by the Truman
administration has proved to be a decisive element of the current (1952)
foreign policy of the United States.


PRESIDENT AND CONGRESS

The relations of President and Congress in the diplomatic field have,
first and, last, presented a varied picture of alternate cooperation and
tension,[350] from which emerge two outstanding facts: first, the
overwhelming importance of Presidential initiative in this area of
power; secondly, the ever increasing dependence of foreign policy on
Congressional cooperation and support. First one and then the other
aspect of the relationship is uppermost. Thus the United Nations
Participation Act of December 20, 1945 appeared to contemplate
cooperation between the President and Congress in the carrying out of
the duties of the United States to back up decisions of the Security
Council involving the use of armed force.[351] When, nevertheless, the
first occasion arose such action, namely, to repel the invasion in June,
1950 of South Korea by North Korean forces, no such agreement had been
negotiated, and the intervention of the United States was authorized by
the President without referring the question to Congress.[352]


CONGRESSIONAL IMPLEMENTATION OF PRESIDENTIAL POLICIES

No President was ever more jealous of his prerogative in the realm of
foreign relations than President Woodrow Wilson. When, however, strong
pressure was brought to bear upon him by Great Britain respecting his
Mexican Policy he was constrained to go before Congress and ask for a
modification of the Panama Tolls Act of 1911, which had also aroused
British ire. Addressing Congress, he said "I ask this of you in support
of the foreign policy of the Administration. I shall not know how to
deal with other matters of even greater delicacy and nearer consequence
if you do not grant it to me in ungrudging measure."[353] The fact is,
of course, that Congress has enormous powers the support of which is
indispensable to any foreign policy. In the long run Congress is the
body that lays and collects taxes for the common defense, that creates
armies and maintains navies, although it does not direct them, that
pledges the public credit, that declares war, that defines offenses
against the law of nations, that regulates foreign commerce; and it has
the further power "to make all laws which shall be necessary and
proper"--that is, which _it_ deems to be such--for carrying into
execution not only its own powers but all the powers "of the government
of the United States and of any department or officer thereof."
Moreover, its laws made "in pursuance" of these powers are "supreme law
of the land" and the President is bound constitutionally to "take care
that" they "be faithfully executed." In point of fact, Congressional
legislation has operated to augment Presidential powers in the foreign
field much more frequently than it has to curtail them. The Lend-Lease
Act of March 11, 1941[354] is the classic example, although it only
brought to culmination a whole series of enactments with which Congress
had aided and abetted the administration's foreign policy in the years
between 1934 and 1941.[355]


THE DOCTRINE OF POLITICAL QUESTIONS

It is not within the province of the courts to inquire into the policy
underlying action taken by the "political departments"--Congress and the
President--in the exercise of their conceded powers. This commonplace
maxim is, however, sometimes given an enlarged application so as to
embrace questions as to the existence of facts and even questions of law
which the Court would normally regard as falling within its
jurisdiction. Such questions are termed "political questions," and are
especially common in the field of foreign relations. The leading case is
Foster _v._ Neilson,[356] where the matter in dispute was the validity
of a grant made by the Spanish Government in 1804 of land lying to the
east of the Mississippi River, involved with which question was the
further one whether the region between the Perdido and Mississippi
Rivers belonged in 1804 to Spain or the United States. Chief Justice
Marshall held that the Court was bound by the action of the political
departments, the President and Congress, in claiming the land for the
United States. He said: "If those departments which are intrusted with
the foreign intercourse of the nation, which assert and maintain its
interests against foreign powers, have unequivocally asserted its right
of dominion over a country of which it is in possession, and which it
claims under a treaty; if the legislature has acted on the construction
thus asserted, it is not in its own courts that this construction is to
be denied. A question like this, respecting the boundaries of nations,
is, as has been truly said, more a political than a legal question, and
in its discussion, the courts of every country must respect the
pronounced will of the legislature."[357] The doctrine thus clearly
stated is further exemplified, with particular reference to Presidential
action, by Williams _v._ The Suffolk Insurance Company.[358] In this
case the underwriters of a vessel which had been confiscated by the
Argentine Government for catching seals off the Falkland Islands
contrary to that government's orders sought to escape liability by
showing that the Argentinian government was the sovereign over these
islands and that, accordingly, the vessel had been condemned for wilful
disregard of legitimate authority. The Court decided against the company
on the ground that the President had taken the position that the
Falkland Islands were not a part of Argentina. It said: "Can there be
any doubt, that when the executive branch of the government, which is
charged with our foreign relations, shall, in its correspondence with a
foreign nation, assume a fact in regard to the sovereignty of any island
or country, it is conclusive on the judicial department? And in this
view, it is not material to inquire, nor is it the province of the court
to determine, whether the executive be right or wrong. It is enough to
know, that in the exercise of his constitutional functions, he had
decided the question. Having done this, under the responsibilities which
belong to him, it is obligatory on the people and government of the
Union. If this were not the rule, cases might often arise, in which, on
most important questions of foreign jurisdiction, there would be an
irreconcilable difference between the executive and judicial
departments. By one of these departments, a foreign island or country
might be considered as at peace with the United States; whilst the
other would consider it in a state of war. No well-regulated government
has ever sanctioned a principle so unwise, and so destructive of
national character."[359] Thus the right to determine the boundaries of
the country is a political function;[360] as is also the right to
determine what country is sovereign of a particular region;[361] to
determine whether a community is entitled under International Law to be
considered a belligerent or an independent state;[362] to determine
whether the other party has duly ratified a treaty;[363] to determine
who is the _de jure_ or _de facto_ ruler of a country;[364] to determine
whether a particular person is a duly accredited diplomatic agent to the
United States;[365] to determine how long a military occupation shall
continue in fulfillment of the terms of a treaty;[366] to determine
whether a treaty is in effect or not, although doubtless an extinguished
treaty could be constitutionally renewed by tacit consent.[367]


Recent Statements of the Doctrine

The assumption underlying the refusal of courts to intervene in such
cases is well stated in the recent case of Chicago & S. Airlines _v._
Waterman Steamship Corp.[368] Here the Court refused to review orders of
the Civil Aeronautics Board granting or denying applications by citizen
carriers to engage in overseas and foreign air transportation which by
the terms of the Civil Aeronautics Act[369] are subject to approval by
the President and therefore impliedly beyond those provisions of the act
authorizing judicial review of board orders.[370] Elaborating on the
necessity of judicial abstinence in the conduct of foreign relations,
Justice Jackson declared for the Court: "The President, both as
Commander in Chief and as the Nation's organ for foreign affairs, has
available intelligence services whose reports are not and ought not to
be published to the world. It would be intolerable that courts, without
the relevant information, should review and perhaps nullify actions of
the Executive taken on information properly held secret. Nor can courts
sit _in camera_ in order to be taken into executive confidences. But
even if courts could require full disclosure, the very nature of
executive decisions as to foreign policy is political, not judicial.
Such decisions are wholly confided by our Constitution on the political
departments of the government, Executive and Legislative. They are
delicate, complex, and involve large elements of prophecy. They are and
should be undertaken only by those directly responsible to the people
whose welfare they advance or imperil. They are decisions of a kind for
which the Judiciary has neither aptitude, facilities nor responsibility
and which has long been held to belong in the domain of political power
not subject to judicial intrusion or inquiry."[371]

To the same effect are the Court's holding and opinion in Ludecke _v._
Watkins,[372] where the question at issue was the power of the President
to order the deportation under the Alien Enemy Act of 1798 of a German
alien enemy after the cessation of hostilities with Germany. Said
Justice Frankfurter for the Court: "War does not cease with a cease-fire
order, and power to be exercised by the President such as that conferred
by the Act of 1798 is a process which begins when war is declared but is
not exhausted when the shooting stops. * * * The Court would be assuming
the functions of the political agencies of the Government to yield to
the suggestion that the unconditional surrender of Germany and the
disintegration of the Nazi Reich have left Germany without a government
capable of negotiating a treaty of peace. It is not for us to question a
belief by the President that enemy aliens who were justifiably deemed
fit subjects for internment during active hostilities do not lose their
potency for mischief during the period of confusion and conflict which
is characteristic of a state of war even when the guns are silent but
the peace of Peace has not come. These are matters of political judgment
for which judges have neither technical competence nor official
responsibility."[373]


The President as Law Enforcer


TYPES OF EXECUTIVE POWER

The Constitution does not say that the President shall execute the laws,
but that "he shall take care that the laws be faithfully executed,"
i.e., by others, who are commonly, but not always with strict accuracy,
termed his subordinates. What powers are implied from this duty? In this
connection five categories of executive power should be distinguished:
first, there is that executive power which the Constitution confers
directly upon the President by the opening clause of article II and, in
more specific terms, by succeeding clauses of the same article;
secondly, there is the sum total of the powers which acts of Congress at
any particular time confer upon the President; thirdly, there is the sum
total of discretionary powers which acts of Congress at any particular
time confer upon heads of departments and other executive
("administrative") agencies of the National Government; fourthly, there
is the power which stems from the duty to enforce the criminal statutes
of the United States; finally, there are so-called "ministerial duties"
which admit of no discretion as to the occasion or the manner of their
discharge. Three principal questions arise: first, how does the
President exercise the powers which the Constitution or the statutes
confer upon him; second, in what relation does he stand by virtue of the
"take care" clause to the powers of other executive, or administrative
agencies; third, in what relation does he stand to the enforcement of
the criminal laws of the United States?


HOW THE PRESIDENT'S OWN POWERS ARE EXERCISED

Whereas the British monarch is constitutionally under the necessity of
acting always through agents if his acts are to receive legal
recognition, the President is presumed to exercise certain of his
constitutional powers personally. In the words of an opinion by Attorney
General Cushing in 1855: "It may be presumed that he, the man
discharging the presidential office, and he alone, grants reprieves and
pardons for offences against the United States, * * * So he, and he
alone, is the supreme commander in chief of the Army and Navy of the
United States, and of the militia of the several States when called into
the actual service of the United States. That is a power
constitutionally inherent in the person of the President. No act of
Congress, no act even of the President himself, can, by constitutional
possibility, authorize or create any military officer not subordinate to
the President."[374] Moreover, the obligation to act personally may be
sometimes enlarged by statute, as, for example, by the act organizing
the President with other designated officials into "an Establishment by
name of the Smithsonian Institute."[375] Here, says the Attorney
General, "the President's name of office is _designatio personae_." He
is also of opinion that expenditures from the "secret service" fund in
order to be valid, must be vouched for by the President personally.[376]
On like grounds the Supreme Court once held void a decree of a court
martial, because, though it has been confirmed by the Secretary of War,
it was not specifically stated to have received the sanction of the
President as required by the 65th Article of War.[377] This case has,
however, been virtually overruled, and at any rate such cases are
exceptional.[378]

The general rule, as stated by the Court, is that when any duty is cast
by law upon the President, it may be exercised by him through the head
of the appropriate department, whose acts, if performed within the law,
thus become the President's acts.[379] In Williams _v._ United
States[380] was involved an act of Congress, which prohibited the
advance of public money in any case whatever to disbursing officers of
the United States, except under special direction by the President.[381]
The Supreme Court held that the act did not require the personal
performance by the President of this duty. Such a practice, said the
Court, if it were possible, would absorb the duties of the various
departments of the government in the personal acts of one chief
executive officer, and be fraught with mischief to the public service.
The President's duty in general requires his superintendence of the
administration; yet he cannot be required to become the administrative
officer of every department and bureau, or to perform in person the
numerous details incident to services which, nevertheless, he is, in a
correct sense, by the Constitution and laws required and expected to
perform.[382] As a matter of administrative practice, in fact, most
orders and instructions emanating from the heads of the departments,
even though in pursuance of powers conferred by statute on the
President, do not even refer to the President.[383]


POWER AND DUTY OF THE PRESIDENT IN RELATION TO SUBORDINATE EXECUTIVE
OFFICERS

Suppose, that the law casts a duty upon a head of department _eo
nomine_, does the President thereupon become entitled by virtue of his
duty to "take care that the laws be faithfully executed," to substitute
his own judgment for that of the principal officer regarding the
discharge of such duty? In the debate in the House in 1789 on the
location of the removal power Madison argued that it ought to be
attributed to the President alone because it was "the intention of the
Constitution, expressed especially in the faithful execution clause,
that the first magistrate should be responsible for the executive
department"; and this responsibility, he held, carried with it the power
to "inspect and control" the conduct of subordinate executive officers.
"Vest," said he, "the power [of removal] in the Senate jointly with the
President, and you abolish at once the great principle of unity and
responsibility in the executive department, which was intended for the
security of liberty and the public good."[384] But this was said with
respect to the office of Secretary of State; and when shortly afterward
the question arose as to the power of Congress to regulate the tenure of
the Comptroller of the Treasury, Madison assumed a very different
attitude, conceding in effect that this officer was to be an arm of
certain of Congress's own powers, and should therefore be protected
against the removal power.[385] (_See_ p. 458). And in Marbury _v._
Madison,[386] Chief Justice Marshall traced a parallel distinction
between the duties of the Secretary of State under the original act
which had created a "Department of Foreign Affairs" and those which had
been added by the later act changing the designation of the department
to its present one. The former were, he pointed out, entirely in the
"political field," and hence for their discharge the Secretary was left
responsible absolutely to the President. The latter, on the other hand,
were exclusively of statutory origin and sprang from the powers of
Congress. For these, therefore, the Secretary was "an officer of the
law" and "amenable to the law for his conduct."[387]


ADMINISTRATIVE DECENTRALIZATION VERSUS JACKSONIAN CENTRALISM

An opinion rendered by Attorney General Wirt in 1823 asserted the
proposition that the President's duty under the "take care" clause
required of him scarcely more than that he should bring a criminally
negligent official to book for his derelictions, either by removing him
or by setting in motion against him the processes of impeachment or of
criminal prosecution.[388] The opinion entirely overlooked the
important question of the location of the power to interpret the law
which is inevitably involved in any effort to enforce it. The
diametrically opposed theory that Congress is unable to vest any head of
an executive department, even within the field of Congress's
specifically delegated powers, with any legal discretion which the
President is not entitled to control was first asserted in unambiguous
terms in President Jackson's Protest Message of April 15, 1834,[389]
defending his removal of Duane as Secretary of the Treasury, on account
of the latter's refusal to remove the deposits from the Bank of the
United States. Here it is asserted "that the entire executive power is
vested in the President"; that the power to remove those officers who
are to aid him in the execution of the laws is an incident of that
power; that the Secretary of the Treasury was such an officer; that the
custody of the public property and money was an executive function
exercised through the Secretary of the Treasury and his subordinates:
that in the performance of these duties the Secretary was subject to the
supervision and control of the President: and finally that the act
establishing the Bank of the United States "did not, as it could not
change the relation between the President and Secretary--did not release
the former from his obligation to see the law faithfully executed nor
the latter from the President's supervision and control."[390] In short,
the President's removal power, in this case unqualified, was the
sanction provided by the Constitution for his power and duty to control
his "subordinates" in all their official actions of public consequence.


CONGRESSIONAL POWER VERSUS PRESIDENTIAL DUTY TO THE LAW

Five years later the case of Kendall _v._ United States[391] arose. The
United States owed one Stokes money, and when Postmaster General
Kendall, at Jackson's instigation, refused to pay it, Congress passed a
special act ordering payment. Kendall, however, still proved
noncompliant, whereupon Stokes sought and obtained a mandamus in the
United States circuit court for the District of Columbia, and on appeal
this decision was affirmed by the Supreme Court. While Kendall _v._
United States, like Marbury _v._ Madison, involved the question of the
responsibility of a head of department for the performance of a
_ministerial_ duty, the discussion by counsel before the Court and the
Court's own opinion covered the entire subject of the relation of the
President to his subordinates in the performance by them of statutory
duties. The lower court had asserted that the duty of the President
under the faithful execution clause gave him no other control over the
officer than to see that he acts honestly, with proper motives, but no
power to construe the law, and see that the executive action conforms to
it. Counsel for Kendall attacked this position vigorously, relying
largely upon statements by Hamilton, Marshall, James Wilson, and Story
having to do with the President's power in the field of foreign
relations. The Court rejected the implication with emphasis. There are,
it pointed out, "certain political duties imposed upon many officers in
the executive department, the discharge of which is under the direction
of the President. But it would be an alarming doctrine, that Congress
cannot impose upon any executive officer any duty they may think proper,
which is not repugnant to any rights secured and protected by the
Constitution; and in such cases the duty and responsibility grow out of
and are subject to the control of the law, and not to the direction of
the President. And this is emphatically the case, where the duty
enjoined is of a mere ministerial character."[392] In short, the Court
recognized the underlying question of the case to be whether the
President's duty to "take care that the laws be faithfully executed"
made it constitutionally impossible for Congress ever to entrust the
construction of its statutes to anybody but the President; and it
answered this in the negative.


MYERS CASE VERSUS HUMPHREY CASE

How does this issue stand today? The answer to this question, so far as
there is one, is to be sought in a comparison of the Court's decisions
in the Myers and Humphrey cases respectively.[393] The former decision
is still valid to support the President's right to remove, and hence to
control the decisions of, all officials through whom he exercises the
great political powers which he derives from the Constitution; also all
officials--usually heads of departments--through whom he exercises
powers conferred upon him by statute. The Humphrey decision assures to
Congress the right to protect the tenure, and hence the freedom of
decision of all officials upon whom, in the exercise of its delegated
powers, it confers duties of a "quasi-legislative" or a "quasi-judicial"
nature. The former may be described as duties for the satisfactory
discharge of which Congress justifiably feels that a specialized and
informed judgment is requisite. The latter are duties the discharge of
which closely touches private rights and which ought therefore be
accompanied or preceded by a "quasi-judicial" inquiry capable of
affording the claimants of such rights the opportunity to be heard. In
neither case is the President entitled to force his reading of the law
upon the officer, but only to take care that the latter exercise his
powers according to his own best lights.


POWER OF THE PRESIDENT TO GUIDE ENFORCEMENT OF THE PENAL LAW

This matter also came to a head in "the reign of Andrew Jackson,"
preceding, and indeed foreshadowing, the Duane episode by some months.
"At that epoch," Wyman relates in his Principles of Administrative Law,
"the first announcement of the doctrine of centralism in its entirety
was set forth in an obscure opinion upon an unimportant matter--The
Jewels of the Princess of Orange, 2 Opin. 482 (1831). These jewels * * *
were stolen from the Princess by one Polari, and were seized by the
officers of the United States Customs in the hands of the thief.
Representations were made to the President of the United States by the
Minister of the Netherlands of the facts in the matter, which were
followed by request for return of the jewels. In the meantime the
District Attorney was prosecuting condemnation proceedings in behalf of
the United States which he showed no disposition to abandon. The
President felt himself in a dilemma, whether if it was by statute the
duty of the District Attorney to prosecute or not, the President could
interfere and direct whether to proceed or not. The opinion was written
by Taney, then Attorney-General; it is full of pertinent illustrations
as to the necessity in an administration of full power in the chief
executive as the concomitant of his full responsibility. It concludes:
If it should be said that, the District Attorney having the power to
discontinue the prosecution, there is no necessity for inferring a right
in the President to direct him to exercise it--I answer that the
direction of the President is not required to communicate any new
authority to the District Attorney, but to direct him in the execution
of a power he is admitted to possess. The most valuable and proper
measure may often be for the President to order the District Attorney to
discontinue prosecution. The District Attorney might refuse to obey the
President's order; and if he did refuse, the prosecution, while he
remained in office, would still go on; because the President himself
could give no order to the court or to the clerk to make any particular
entry. He could only act through his subordinate officer the District
Attorney, who is responsible to him and who holds his office at his
pleasure. And if that officer still continue a prosecution which the
President is satisfied ought not to continue, the removal of the
disobedient officer and the substitution of one more worthy in his place
would enable the President through him faithfully to execute the law.
And it is for this among other reasons that the power of removing the
District Attorney resides in the President."[394]


THE PRESIDENT AS LAW INTERPRETER

The power accruing to the President from his function of law
interpretation preparatory to law enforcement is daily illustrated in
relation to such statutes as the Anti-Trust Acts, the Taft-Hartley Act,
the Internal Security Act, and many lesser statutes. Nor is this the
whole story. Not only do all Presidential regulations and orders based
on statutes which vest power in him or on his own constitutional powers
have the force of law, provided they do not transgress the Court's
reading of such statutes or of the Constitution,[395] but he sometimes
makes law in a more special sense. In the famous Neagle case[396] an
order of the Attorney General to a United States marshal to protect a
Justice of the Supreme Court whose life had been threatened by a suitor
was attributed to the President and held to be "a law of the United
States" in the sense of section 753 of the Revised Statutes, and as such
to afford basis for a writ of _habeas corpus_ transferring the said
marshal, who had "got his man," from State to national custody. Speaking
for the Court, Justice Miller inquired: "Is this duty [the duty of the
President to take care that the laws be faithfully executed] limited to
the enforcement of acts of Congress or of treaties of the United States
according to their _express terms_, or does it include the rights,
duties and obligations growing out of the Constitution itself, our
international relations, and all the protection implied by the nature of
the government under the Constitution?"[397] Obviously, an affirmative
answer is assumed to the second branch of this inquiry, an assumption
which is borne out by numerous precedents. And in United States _v._
Midwest Oil Company[398] it was ruled that the President had, by dint of
repeated assertion of it from an early date, acquired the right to
withdraw, via the Land Department, public lands, both mineral and
nonmineral, from private acquisition, Congress having never repudiated
the practice.


MILITARY POWER IN LAW ENFORCEMENT: THE POSSE COMITATUS

"Whenever, by reason of unlawful obstructions, combinations, or
assemblages of persons, or rebellion against the authority of the
Government of the United States, it shall become impracticable, in the
judgment of the President, to enforce, by the ordinary course of
judicial proceedings, the laws of the United States within any State or
Territory, it shall be lawful for the President to call forth the
militia of any or all the States, and to employ such parts of the land
and naval forces of the United States as he may deem necessary to
enforce the faithful execution of the laws of the United States, or to
suppress such rebellion, in whatever State or Territory thereof the
laws of the United States may be forcibly opposed, or the execution
thereof forcibly obstructed."[399] This provision of the United States
Code consolidates a course of legislation which began at the time of the
Whiskey Rebellion of 1792.[400] In Martin _v._ Mott,[401] which arose
out of the War of 1812, it was held that the authority to decide whether
the exigency has arisen belongs exclusively to the President.[402] Even
before that time, Jefferson had in 1808, in the course of his efforts to
enforce the Embargo Acts, issued a proclamation ordering "all officers
having authority, civil or military, who shall be found in the vicinity"
of an unruly combination to aid and assist "by all means in their power,
by force of arms and otherwise" the suppression of such
combination.[403] Forty-six years later Attorney General Cushing advised
President Pierce that in enforcing the Fugitive Slave Act of 1850,
marshals of the United States, had authority when opposed by unlawful
combinations, to summon to their aid not only bystanders and citizens
generally, but armed forces within their precincts, both State militia
and United States officers, soldiers, sailors, and marines,[404] a
doctrine which Pierce himself improved upon two years later by
asserting, with reference to the civil war then raging in Kansas, that
it lay within his obligation to take care that the laws be faithfully
executed to place the forces of the United States in Kansas at the
disposal of the marshal there, to be used as a portion of the _posse
comitatus_. Lincoln's call of April 15, 1861, for 75,000 volunteers was,
on the other hand, a fresh invocation, though of course on a vastly
magnified scale, of Jefferson's conception of a _posse comitatus_
subject to Presidential call.[405] The provision above extracted from
the United States Code ratifies this conception as regards the State
militias and the national forces.


SUSPENSION OF HABEAS CORPUS BY THE PRESIDENT

_See_ Article I, Section 9, clause 2, pp. 312-315.


PREVENTIVE MARTIAL LAW

The question of executive power in the presence of civil disorder is
dealt with in modern terms in Moyer _v._ Peabody,[406] decided in 1909,
to which the Debs Case,[407] decided in 1895, may be regarded as an
addendum. Moyer, a labor leader, brought suit against Peabody, for
having ordered his arrest during a labor dispute which occurred while
Peabody was governor of Colorado. Speaking for a unanimous Court, one
Justice being absent, Justice Holmes said: "Of course the plaintiff's
position is that he has been deprived of his liberty without due process
of law. But it is familiar that what is due process of law depends on
circumstances. It varies with the subject matter and the necessities of
the situation. * * * The facts that we are to assume are that a state of
insurrection existed and that the Governor, without sufficient reason
but in good faith, in the course of putting the insurrection down held
the plaintiff until he thought that he safely could release him. * * *
In such a situation we must assume that he had a right under the state
constitution and laws to call out troops, as was held by the Supreme
Court of the State. * * * That means that he shall make the ordinary use
of the soldiers to that end; that he may kill persons who resist and, of
course, that he may use the milder measure of seizing the bodies of
those whom he considers to stand in the way of restoring peace. Such
arrests are not necessarily for punishment, but are by way of precaution
to prevent the exercise of hostile power. So long as such arrests are
made in good faith and in the honest belief that they are needed in
order to head the insurrection off, the Governor is the final judge and
cannot be subjected to an action after he is out of office on the ground
that he had not reasonable ground for his belief. * * * When it comes to
a decision by the head of the State upon a matter involving its life,
the ordinary rights of individuals must yield to what he deems the
necessities of the moment. Public danger warrants the substitution of
executive process for judicial process."[408]


THE DEBS CASE

The Debs case of 1895 arose out of a railway strike which had caused the
President to dispatch troops to Chicago the previous year. Coincidently
with this move, the United States district attorney stationed there,
acting upon orders from Washington, obtained an injunction from the
United States circuit court forbidding the strike on account of its
interference with the mails and with interstate commerce. The question
before the Supreme Court was whether this injunction, for violation of
which Debs has been jailed for contempt of court, had been granted with
jurisdiction. Conceding, in effect, that there was no statutory warrant
for the injunction, the Court nevertheless validated it on the ground
that the Government was entitled thus to protect its property in the
mails, and on a much broader ground which is stated in the following
passage of Justice Brewer's opinion for the Court: "Every government,
entrusted, by the very terms of its being, with powers and duties to be
exercised and discharged for the general welfare, has a right to apply
to its own courts for any proper assistance in the exercise of the one
and the discharge of the other. * * * While it is not the province of
the Government to interfere in any mere matter of private controversy
between individuals, or to use its granted powers to enforce the rights
of one against another, yet, whenever the wrongs complained of are such
as affect the public at large, and are in respect of matters which by
the Constitution are entrusted to the care of the Nation and concerning
which the Nation owes the duty to all the citizens of securing to them
their common rights, then the mere fact that the Government has no
pecuniary interest in the controversy is not sufficient to exclude it
from the courts, or prevent it from taking measures therein to fully
discharge those constitutional duties."[409]


STATUS OF THE DEBS CASE TODAY

The restrictions imposed by the Norris-LaGuardia Act[410] on the
issuance of injunctions by the federal courts in cases "involving or
growing out of any labor dispute" later cast a shadow of doubt over the
Debs case, which was deepened, if anything, by the Court's decision in
1947, in United States _v._ United Mine Workers.[411] But such doubts
have been since dispelled by the Taft-Hartley Act, which provides that
whenever in his opinion a threatened or actual strike or lockout
affecting the whole or a substantial part of an industry engaged in
interstate commerce will, "if permitted to occur or continue, imperil
the national health or safety," the President may appoint a board of
inquiry and, upon its so finding, "may direct the Attorney General to
petition any district court of the United States having jurisdiction of
the parties to enjoin such strike or lockout or the continuing thereof
* * *," and the Court shall have jurisdiction to do so, provided it
shares the President's view of the situation.[412] Administration and
labor critics of the act did not challenge the constitutionality of this
provision. They questioned its necessity in view of the President's
"inherent powers" in the face of emergency.[413]


THE PRESIDENT'S DUTY IN CASES OF DOMESTIC VIOLENCE IN THE STATES

_See_ Art. IV, sec. 4, p. 705.


THE PRESIDENT AS EXECUTIVE OF THE LAW OF NATIONS

Illustrative of the President's duty to discharge the responsibilities
of the United States at International Law with a view to avoiding
difficulties with other governments, was the action of President Wilson
in closing the Marconi Wireless Station at Siasconset, Massachusetts on
the outbreak of the European War in 1914, the company having refused
assurance that it would comply with naval censorship regulations.
Justifying this drastic invasion of private rights, Attorney General
Gregory said: "The President of the United States is at the head of one
of the three great coordinate departments of the Government. He is
Commander in Chief of the Army and the Navy. * * * If the President is
of the opinion that the relations of this country with foreign nations
are, or are likely to be, endangered by action deemed by him
inconsistent with a due neutrality, it is his right and duty to protect
such relations; and in doing so, in the absence of any statutory
restrictions, he may act through such executive office or department as
appears best adapted to effectuate the desired end. * * * I do not
hesitate, in view of the extraordinary conditions existing, to advise
that the President, through the Secretary of the Navy or any appropriate
department, close down, or take charge of and operate, the plant * * *,
should he deem it necessary in securing obedience to his proclamation of
neutrality."[414]


PROTECTION OF AMERICAN RIGHTS OF PERSON AND PROPERTY ABROAD

The right of the President to use force in vindication of American
rights of person and property abroad was demonstrated in 1854 by the
bombardment of Greytown, Nicaragua by Lieutenant Hollins of the U.S.S.
Cyane, in default of reparation from the local authorities for an attack
by a mob on the United States consul at that place. Upon his return to
the United States Hollins was sued in a federal court by one Durand for
the value of certain property which was alleged to have been destroyed
in the bombardment. His defense was based upon the orders of the
President and Secretary of the Navy, and was sustained by Justice
Nelson, then on circuit, in the following words: "As the Executive head
of the nation, the President is made the only legitimate organ of the
General Government, to open and carry on correspondence or negotiations
with foreign nations, in matters concerning the interests of the country
or of its citizens. It is to him, also, the citizens abroad must look
for protection of person and of property, and for the faithful execution
of the laws existing and intended for their protection. For this
purpose, the whole Executive power of the country is placed in his
hands, under the Constitution, and the laws passed in pursuance thereof;
and different Departments of government have been organized, through
which this power may be most conveniently executed, whether by
negotiation or by force--a Department of State and a Department of the
Navy.

"Now, as it respects the interposition of the Executive abroad, for the
protection of the lives or property of the citizen, the duty must, of
necessity, rest in the discretion of the President. Acts of lawless
violence, or of threatened violence to the citizen or his property,
cannot be anticipated and provided for; and the protection, to be
effectual or of any avail, may, not unfrequently, require the most
prompt and decided action. Under our system of Government, the citizen
abroad is as much entitled to protection as the citizen at home. The
great object and duty of Government is the protection of the lives,
liberty, and property of the people composing it, whether abroad or at
home; and any Government failing in the accomplishment of the object, or
the performance of the duty, is not worth preserving."[415]


PRESIDENTIAL WORLD POLICING

In his little volume on World Policing and the Constitution[416] Mr.
James Grafton Rogers lists 149 episodes similar to the Greytown affair,
stretching between the undeclared war with France in 1798 and Pearl
Harbor. While inviting some pruning, the list demonstrates beyond
peradventure the existence in the President, as Chief Executive and
Commander in Chief, of power to judge whether a situation requires the
use of available forces to protect American rights of person and
property outside the United States and to take action in harmony with
his decision. Such employment of the forces have, it is true, been
usually justifiable acts of self defense rather than acts of war, but
the countries where they occurred were entitled to treat them as acts of
war nevertheless, although they have generally been too feeble to assert
their prerogative in this respect, and have sometimes actually chosen to
turn the other cheek. Thus when in 1900 President McKinley, without
consulting Congress, contributed a sizable contingent to the joint
forces that went to the relief of the foreign legations in Peking, the
Chinese Imperial Government agreed that this action had not constituted
war.[417]


The Atlantic Pact

Article V of the Atlantic Pact builds on such precedents. The novel
feature is its enlarged conception of defensible American interests
abroad. In the words of the published abstract of the Report of the
Committee on Foreign Relations on the Pact, "Article 5 records what is a
fact, namely, that an armed attack within the meaning of the treaty
would in the present-day world constitute an attack upon the entire
community comprising the parties to the treaty, including the United
States. Accordingly, the President and the Congress, each within their
sphere of assigned constitutional responsibilities, would be expected to
take all action necessary and appropriate to protect the United States
against the consequences and dangers of an armed attack committed
against any party to the treaty."[418] But from the very nature of
things, the discharge of this obligation against overt force will
ordinarily rest with the President in the first instance, just as has
the discharge in the past of the like obligation in the protection of
American rights abroad. Furthermore, in the discharge of this obligation
the President will ordinarily be required to use force and perform acts
of war. Such is the verdict of history, a verdict which was foreseen
more or less definitely by the framers themselves.[419]


PRESIDENTIAL ACTION IN THE DOMAIN OF CONGRESS: THE STEEL SEIZURE CASE


Facts[420]

To avert a nation-wide strike of steel workers which he believed would
jeopardize the national defense, President Truman, on April 8th, 1952,
issued Executive Order 10340[421] directing the Secretary of Commerce to
seize and operate most of the steel mills of the country. The Order
cited no specific statutory authorization, but invoked generally the
powers vested in the President by the Constitution and laws of the
United States. Secretary Sawyer forthwith issued an order seizing the
mills and directing their presidents to operate them as operating
managers for the United States in accordance with his regulations and
directions. The President promptly reported these events to Congress,
conceding Congress's power to supersede his Order; but Congress failed
to do anything about the matter either then or a fortnight later, when
the President again brought up the subject in a special message.[422] It
had in fact provided other methods of dealing with such situations, in
the elaboration of which it had declined repeatedly to authorize
governmental seizures of property to settle labor disputes. The steel
companies sued the Secretary in a federal district court, praying for a
declaratory judgment and injunctive relief. The district court issued a
preliminary injunction, which the court of appeals stayed.[423] On
certiorari to the court of appeals, the district court's order was
affirmed by the Supreme Court by a vote of six justices to three.
Justice Black delivered the opinion of the Court in which Justices
Frankfurter, Douglas, Jackson, and Burton formally concurred. Justice
Clark expressly limited his concurrence to the judgment of the Court.
All these Justices presented what are termed "concurring" opinions. The
Chief Justice, speaking for himself and Justices Reed and Minton,
presented a dissenting opinion.


The Doctrine of the Opinion of the Court

The chief points urged in the Black opinion are the following: There was
no statute which expressly or impliedly authorized the President to take
possession of the property involved. On the contrary, in its
consideration of the Taft-Hartley Act in 1947, Congress refused to
authorize governmental seizures of property as a method of preventing
work stoppages and settling labor disputes. Authority to issue such an
order in the circumstances of the case was not deducible from the
aggregate of the President's executive powers under Article II of the
Constitution; nor was the Order maintainable as an exercise of the
President's powers as Commander in Chief of the Armed Forces. The power
sought to be exercised was the lawmaking power, which the Constitution
vests in the Congress alone. Even if it were true that other Presidents
have taken possession of private business enterprises without
congressional authority in order to settle labor disputes, Congress was
not thereby divested of its exclusive constitutional authority to make
the laws necessary and proper to carry out all powers vested by the
Constitution "in the Government of the United States, or any Department
or Officer thereof."[424]


The Factual Record

The pivotal proposition of the opinion is, in brief, that inasmuch as
Congress could have ordered the seizure of the steel mills, the
President had no power to do so without prior congressional
authorization. To support this position no proof is offered in the way
of past opinion, and the following extract from Justice Clark's opinion
presents a formidable challenge to it: "One of this Court's first
pronouncements upon the powers of the President under the Constitution
was made by Mr. Chief Justice John Marshall some one hundred and fifty
years ago. In Little _v._ Barreme,[425] he used this characteristically
clear language in discussing the power of the President to instruct the
seizure of the _Flying Fish_, a vessel bound from a French port: 'It is
by no means clear that the president of the United States whose high
duty it is to "take care that the laws be faithfully executed," and who
is commander in chief of the armies and navies of the United States,
might not, without any special authority for that purpose, in the then
existing state of things, have empowered the officers commanding the
armed vessels of the United States, to seize and send into port for
adjudication, American vessels which were forfeited by being engaged in
this illicit commerce. But when it is observed that [an act of Congress]
gives a special authority to seize on the high seas, and limits that
authority to the seizure of vessels bound or sailing to a French port,
the legislature seems to have prescribed that the manner in which this
law shall be carried into execution, was to exclude a seizure of any
vessel not bound to a French port.' Accordingly, a unanimous Court held
that the President's instructions had been issued without authority and
that they could not 'legalize an act which without those instructions
would have been a plain trespass.' I know of no subsequent holding of
this Court to the contrary."[426]

Another field which the President and Congress have each occupied at
different times is extradition. In 1799 President Adams, in order to
execute the extradition provisions of the Jay Treaty, issued a warrant
for the arrest of one Jonathan Robbins. As Chief Justice Vinson recites
in his opinion: "This action was challenged in Congress on the ground
that no specific statute prescribed the method to be used in executing
the treaty. John Marshall, then a member of the House of
Representatives, in the course of his successful defense of the
President's action, said: 'Congress, unquestionably, may prescribe the
mode, and Congress may devolve on others the whole execution of the
contract; but, till this be done, it seems the duty of the Executive
department to execute the contract by any means it possesses.'"[427] In
1848 Congress enacted a statute governing this subject which confers
upon the courts, both State and Federal, the duty of handling
extradition cases.[428]

The first Neutrality Proclamation was issued by President Washington in
1793 without congressional authorization.[429] The following year
Congress enacted the first neutrality statute,[430] and since then
proclamations of neutrality have been based on an act of Congress
governing the matter. The President may, in the absence of legislation
by Congress, control the landing of foreign cables in the United States
and the passage of foreign troops through American territory, and has
done so repeatedly.[431] Likewise, until Congress acts, he may govern
conquered territory[432] and, "in the absence of attempts by Congress to
limit his power," may set up military commissions in territory occupied
by the armed forces of the United States.[433] He may determine, in a
way to bind the courts, whether a treaty is still in force as law of the
land, although again the final power in the field rests with
Congress.[434] One of the President's most ordinary powers and duties is
that of ordering the prosecution of supposed offenders against the laws
of the United States. Yet Congress may do the same thing.[435] On
September 22, 1862, President Lincoln issued a proclamation suspending
the privilege of the writ of habeas corpus throughout the Union in
certain classes of cases. By an act passed March 3, 1863, Congress
ratified this action of the President and at the same time brought the
whole subject of military arrests in the United States under legal
control.[436] Conversely, when President Wilson failed in March 1917 to
obtain Congress's consent to his arming American merchant vessels with
defensive arms, he went ahead and did it anyway, "fortified not only by
the known sentiments of the majority in Congress but also by the advice
of his Secretary of State and Attorney General."[437]

On the specific matter of property seizures, Justice Frankfurter's
concurring opinion in the Youngstown Case is accompanied by appendices
containing a synoptic analysis of legislation authorizing seizures of
industrial property and also a summary of seizures of industrial plants
and facilities by Presidents without definite statutory warrant.
Eighteen such statutes are listed, all but the first of which were
enacted between 1916 and 1951. Of presidential seizures unsupported by
reference to specific statutory authorization, he lists eight as
occurring during World War I. To justify these it was deemed sufficient
to refer to "the Constitution and laws" generally. For the World War II
period he lists eleven seizures in justification of which no statutory
authority was cited. The first of these was the seizure of the North
American Aviation, Inc., of Englewood, California. In support of this
action Attorney General Jackson, as Chief Justice Vinson points out in
his dissenting opinion, "vigorously proclaimed that the President had
the moral duty to keep this nation's defense effort a 'going
concern.'"[438] Said the then Attorney General, "The Presidential
proclamation rests upon the aggregate of the Presidential powers derived
from the Constitution itself and from statutes enacted by the Congress.
The Constitution lays upon the President the duty 'to take care that the
laws be faithfully executed.' Among the laws which he is required to
find means to execute are those which direct him to equip an enlarged
army, to provide for a strengthened navy, to protect Government
property, to protect those who are engaged in carrying out the business
of the Government, and to carry out the provisions of the Lend-Lease
Act. For the faithful execution of such laws the President has back of
him not only each general law-enforcement power conferred by the various
acts of Congress but the aggregate of all such laws plus that wide
discretion as to method vested in him by the Constitution for the
purpose of executing the laws."[439] In the War Labor Disputes Act of
June 25, 1943,[440] such seizures were put on a statutory basis. As the
Chief Justice points out, the purpose of this measure, as stated by its
sponsor, was not to augment presidential power but to "let the country
know that the Congress is squarely behind the President."[441]

In United States _v._ Pewee Coal Company, Inc.[442] the Court had before
it the claim of a coal mine operator whose property was seized by the
President without statutory authorization, "to avert a nation-wide
strike of miners." The company brought an action in the Court of Claims
to recover under the Fifth Amendment for the total operating losses
sustained during the period in which this property was operated by the
United States. The Court awarded judgment for $2,241.46 and the Supreme
Court sustained this judgment, a result which implied the validity of
the seizure.[443] Said Justice Reed, in his concurring opinion of the
case: "The relatively new technique of temporary taking by eminent
domain is a most useful administrative device: many properties, such as
laundries, or coal mines, or railroads, may be subjected to public
operation only for a short time to meet war or emergency needs, and can
then be returned to their owners." The implications of United States
_v._ Pewee Coal Company, Inc.,[444] clearly sustained the Government in
Youngstown, assuming that Congress had not acted in the latter case. And
one instance of seizure by executive order Justice Frankfurter fails to
mention. This was the seizure by President Wilson in the late summer of
1914, following the outbreak of war in Europe, of the Marconi Wireless
Station at Siasconset when the Company refused assurance that it would
comply with naval censorship regulations. Attorney General Gregory's
justification of this action at the time was quoted on an earlier
page.[445]

The doctrine dictated by the above considerations as regards the
exercise of executive power in the field of legislative power was well
stated by Mr. John W. Davis, principal counsel on the present occasion
for the steel companies, in a brief which he filed nearly forty years
ago as Solicitor General, in defense of the action of the President in
withdrawing certain lands from public entry although his doing so was at
the time contrary to express statute. "Ours," the brief reads, "is a
self-sufficient Government within its sphere. (Ex parte Siebold, 100
U.S. 371, 395; in re Debs, 158 U.S. 564, 578.) 'Its means are adequate
to its ends' (McCulloch _v._ Maryland, 4 Wheat. 316, 424), and it is
rational to assume that its active forces will be found equal in most
things to the emergencies that confront it. While perfect flexibility is
not to be expected in a Government of divided powers, and while division
of power is one of the principal features of the Constitution, it is the
plain duty of those who are called upon to draw the dividing lines to
ascertain the essential, recognize the practical, and avoid a slavish
formalism which can only serve to ossify the Government and reduce its
efficiency without any compensating good. 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. As such he performs the duties which the Constitution lays upon
him immediately, and as such, also, he executes the laws and regulations
adopted by Congress. He is the agent of the people of the United States,
deriving all his powers from them and responsible directly to them. In
no sense is he the agent of Congress. He obeys and executes the laws of
Congress, not because Congress is enthroned in authority over him, but
because the Constitution directs him to do so. Therefore it follows that
in ways short of making laws or disobeying them, the Executive may be
under a grave constitutional duty to act for the national protection in
situations not covered by the acts of Congress, and in which, even, it
may not be said that his action is the direct expression of any
particular one of the independent powers which are granted to him
specifically by the Constitution. Instances wherein the President has
felt and fulfilled such a duty have not been rare in our history,
though, being for the public benefit and approved by all, his acts have
seldom been challenged in the courts."[446]


Concurring Opinions

Justice Frankfurter begins the material part of his opinion with the
statement: "We must * * * put to one side consideration of what powers
the President would have had if there had been no legislation whatever
bearing on the authority asserted by the seizure, or if the seizure had
been only for a short, explicitly temporary period, to be terminated
automatically unless Congressional approval were given."[447] He then
enters upon a review of the proceedings of Congress which attended the
enactment of the Taft-Hartley Act, and concludes that "Congress has
expressed its will to withhold this power [of seizure] from the
President as though it had said so in so many words."[448]

Justice Douglas's contribution consists in the argument that: "The
branch of government that has the power to pay compensation for a
seizure is the only one able to authorize a seizure or make lawful one
that the President has effected. That seems to me to be the necessary
result of the condemnation provision in the Fifth Amendment."[449] This
contention overlooks such cases as Mitchell _v._ Harmony;[450] United
States _v._ Russell;[451] Portsmouth Harbor Land and Hotel Co. _v._
United States;[452] and United States _v._ Pewee Coal Co.;[453] in all
of which a right of compensation was recognized to exist in consequence
of damage to property which resulted from acts stemming ultimately from
constitutional powers of the President. In United States _v._ Pink,[454]
Justice Douglas quotes with approval the following words from the
Federalist,[455] "all constitutional acts of power, whether in the
executive or in the judicial branch, have as much validity and
obligation as if they proceeded from the legislature." If this is so as
to treaty obligations, then all the more must it be true of obligations
which are based directly on the Constitution.[456]

Justice Jackson's opinion contains little that is of direct pertinence
to the constitutional issue. Important, however, is his contention,
which, seems to align him with Justice Frankfurter, that Congress had
"not left seizure of private property an open field but has covered it
by three statutory policies inconsistent with this seizure"; from which
he concludes that "* * * we can sustain the President only by holding
that seizure of such strike-bound industries is within his domain and
beyond control by Congress."[457] The opinion concludes: "In view of the
ease, expedition and safety with which Congress can grant and has
granted large emergency powers, certainly ample to embrace this crisis,
I am quite unimpressed with the argument that we should affirm
possession of them without statute. Such power either has no beginning
or it has no end. If it exists, it need submit to no legal restraint. I
am not alarmed that it would plunge us straightway into dictatorship,
but it is at least a step in that wrong direction. * * * But I have no
illusion that any decision by this Court can keep power in the hands of
Congress if it is not wise and timely in meeting its problems. A crisis
that challenges the President equally, or perhaps primarily, challenges
Congress. If not good law, there was worldly wisdom in the maxim
attributed to Napoleon that 'The tools belong to the man who can use
them.' We may say that power to legislate for emergencies belongs in the
hands of Congress, but only Congress itself can prevent power from
slipping through its fingers."[458]

Justice Burton, referring to the Taft-Hartley Act, says: "* * * the most
significant feature of that Act is its omission of authority to seize,"
citing debate on the measure.[459] "In the case before us, Congress
authorized a procedure which the President declined to follow."[460]
Justice Clark bases his position directly upon Chief Justice Marshall's
opinion in Little _v._ Barreme.[461] He says: "I conclude that where
Congress has laid down specific procedures to deal with the type of
crisis confronting the President, he must follow these procedures in
meeting the crisis; * * * I cannot sustain the seizure in question
because here, as in Little _v._ Barreme, Congress had prescribed methods
to be followed by the President in meeting the emergency at hand."[462]
His reference is to the Taft-Hartley Act. At the same time he endorses
the view, "taught me not only by the decision of Chief Justice Marshall
in Little _v._ Barreme, but also by a score of other pronouncements of
distinguished members of this bench," that "the Constitution does grant
to the President extensive authority in times of grave and imperative
national emergency."[463]


Dissenting Opinion

Chief Justice Vinson launched his opinion of dissent, for himself and
Justices Reed and Minton, with a survey of the elements of the emergency
which confronted the President: the Korean war; the obligations of the
United States under the United Nations Charter and the Atlantic Pact;
the appropriations acts by which Congress has voted vast sums to be
expended in our defense and that of our Allies in Europe; the fact that
steel is a basic constituent of war matériel. He reproaches the Court
for giving no consideration to these things, although no one had
ventured to challenge the President's finding of an emergency on the
basis of them.[464] He asks whether the steel seizure, considering the
emergency involved, fits into the picture of presidential emergency
action in the past and musters impressive evidence to show that it does.
And "plaintiffs admit," he asserts, more questionably, "that the
emergency procedures of Taft-Hartley are not mandatory."[465] He
concludes as follows: "The diversity of views expressed in the six
opinions of the majority, the lack of reference to authoritative
precedent, the repeated reliance upon prior dissenting opinions, the
complete disregard of the uncontroverted facts showing the gravity of
the emergency and the temporary nature of the taking all serve to
demonstrate how far afield one must go to affirm the order of the
District Court. The broad executive power granted by Article II to an
officer on duty 365 days a year cannot, it is said, be invoked to avert
disaster. Instead, the President, must confine himself to sending a
message to Congress recommending action. Under this messenger-boy
concept of the Office, the President cannot even act to preserve
legislative programs from destruction so that Congress will have
something left to act upon. There is no judicial finding that the
executive action was unwarranted because there was in fact no basis for
the President's finding of the existence of an emergency for, under this
view, the gravity of the emergency and the immediacy of the threatened
disaster are considered irrelevant as a matter of law."[466]


Evaluation; Presidential Emergency Power

The doctrine of "the opinion of the Court" is that, if Congress can do
it under, say, the necessary and proper clause, then the President,
lacking authority from Congress, cannot do it on the justification that
an emergency requires it. Although four Justices are recorded as
concurring in the opinion, their accompanying opinions whittle their
concurrence in some instances to the vanishing point. Justice Douglas's
supplementary argument on the basis of Amendment V logically confines
the doctrine of the opinion to executive seizures of property. Justices
Frankfurter and Burton and, less clearly, Justice Jackson insist in
effect that Congress had exercised its power in the premises of the case
in opposition to seizure. Justice Clark, on the basis of Chief Justice
Marshall's opinion in Little _v._ Barreme, holds unambiguously that,
Congress having entered the field, its evident intention to rule out
seizures supplied the law of the case. That the President does possess a
residual of resultant power above, or in consequence of, his granted
powers to deal with emergencies in the absence of restrictive
legislation is explicitly asserted by Justice Clark, and impliedly held,
with certain qualifications, by Justice Frankfurter and, again less
clearly, by Justice Jackson; and is the essence of the position of the
three dissenting Justices. Finally, the entire Court would in all
probability agree to the proposition that any action of the President
touching the internal economy of the country for which the justification
of emergency is pleaded is always subject to revision and disallowance
by the legislative power. It would seem to follow that whenever the
President so acts on his own initiative he should at once report his
action to Congress, and thenceforth bring the full powers of his office
to the support of the desires of the Houses once these are clearly
indicated.


PRESIDENTIAL IMMUNITY FROM JUDICIAL DIRECTION

By the decision of the Court in State of Mississippi _v._ Johnson,[467]
in 1867, the President was put beyond the reach of judicial direction in
the exercise of any of his powers, whether constitutional or statutory,
political or otherwise. An application for an injunction to forbid
President Johnson to enforce the Reconstruction Acts, on the ground of
their unconstitutionality, was answered by Attorney General Stanbery as
follows: "It is not upon any peculiar immunity that the individual has
who happens to be President; upon any idea that he cannot do wrong; upon
any idea that there is any particular sanctity belonging to him as an
individual, as is the case with one who has royal blood in his veins;
but it is on account of the office that he holds that I say the
President of the United States is above the process of any court or the
jurisdiction of any court to bring him to account as President. There is
only one court or _quasi_ court that he can be called upon to answer to
for any dereliction of duty, for doing anything that is contrary to law
or failing to do anything which is according to law, and that is not
this tribunal but one that sits in another chamber of this
Capitol."[468] Speaking by Chief Justice Chase, the Court agreed: "The
Congress is the legislative department of the government; the President
is the executive department. Neither can be restrained in its action by
the judicial department; though the acts of both, when performed, are,
in proper cases, subject to its cognizance. The impropriety of such
interference will be clearly seen upon consideration of its possible
consequences. Suppose the bill filed and the injunction prayed for
allowed. If the President refuse obedience, it is needless to observe
that the court is without power to enforce its process. If, on the other
hand, the President complies with the order of the court and refuses to
execute the acts of Congress, is it not clear that a collision may occur
between the executive and legislative departments of the government? May
not the House of Representatives impeach the President for such refusal?
And in that case could this court interfere, in behalf of the President,
thus endangered by compliance with its mandate, and restrain by
injunction the Senate of the United States from sitting as a court of
impeachment? Would [not?] the strange spectacle be offered to the public
world of an attempt by this court to arrest proceedings in that
court?"[469] The Court further indicated that the same principle would
apply to an application for a mandamus ordering the President to
exercise any of his powers.


THE PRESIDENT'S SUBORDINATES AND THE COURTS

But while the courts are unable to compel the President to act or to
keep him from acting, yet his acts, when performed are in proper cases
subject to judicial review and disallowance.[470] Moreover, the
subordinates through whom he acts may always be prohibited by writ of
injunction from doing a threatened illegal act which might lead to
irreparable damage,[471] or be compelled by writ of mandamus to perform
a duty definitely required by law,[472] such suits being usually brought
in the United States District Court for the District of Columbia.[473]
Also, by common law principles, a subordinate executive officer is
personally liable under the ordinary law for any act done in excess of
authority.[474] Indeed, by a recent holding, district courts of the
United States are bound to entertain suits for damages arising out of
alleged violation of plaintiff's constitutional rights, even though as
the law now stands the Court is powerless to award damages.[475] But
Congress may, in certain cases, exonerate the officer by a so-called act
of indemnity,[476] while as the law stands at present, any officer of
the United States who is charged with a crime under the laws of a State
for an act done under the authority of the United States is entitled to
have his case transferred to the national courts.[477]


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.


Impeachment


"CIVIL OFFICER"

A Member of Congress is not a civil officer within the meaning of this
section; nor is a private citizen subject to impeachment;[478] but
resignation of an officer does not give immunity from impeachment for
acts committed while in office.[479]


"HIGH CRIMES AND MISDEMEANORS"

Most of the States have drafted their constitutional provisions on this
subject in similar language. As there is no enumeration of offenses
comprised under the last two categories, no little difficulty has been
experienced in defining offenses in such a way that they fall within the
meaning of the constitutional provisions. But impeachable offenses were
not defined in England, and it was not the intention that the
Constitution should attempt an enumeration of crimes or offenses for
which an impeachment would lie. Treason and bribery have always been
offenses whose nature was clearly understood. Other high crimes and
misdemeanors which might be made causes for the impeachment of civil
officers were those which embraced any misbehavior while in office.
Madison, whose objection led to the insertion of the more definite
phrase high crimes and misdemeanors, was the strongest advocate of a
broad construction of the impeachment power. He argued that incapacity,
negligence, or perfidy of the Chief Magistrate should be ground for
impeachment.[480] Again, in discussing the President's power of removal,
he maintained that the wanton removal from office of meritorious
officers would be an act of maladministration, and would render the
President liable to impeachment.[481] Hamilton thought the proceeding
could "never be tied down by such strict rules, either in the
delineation of the offense by the prosecutors, or in the construction of
it by the judges, as in common cases serve to limit the discretion of
the courts in favor of personal security."[482]


THE CHASE IMPEACHMENT

The above relatively flexible conception of "high crimes and
misdemeanors" was, however, early replaced by a much more rigid one in
consequence of Jefferson's efforts to diminish the importance of the
Supreme Court, the first step in which enterprise was the impeachment in
1805 of Justice Samuel Chase. The theory of Chase's enemies was given
its extremest expression by Jefferson's henchman, Senator Giles of
Virginia, as follows: "Impeachment is nothing more than an enquiry, by
the two Houses of Congress, whether the office of any public man might
not be better filled by another. * * * The power of impeachment was
given without limitation to the House of Representatives; and the power
of trying impeachments was given equally without limitation to the
Senate; * * * A trial and removal of a judge upon impeachment need not
imply any criminality or corruption in him. * * * [but] was nothing more
than a declaration of Congress to this effect: You hold dangerous
opinions, and if you are suffered to carry them into effect you will
work the destruction of the nation. _We want your offices_, for the
purpose of giving them to men who will fill them better."[483] To this
theory Chase's counsel opposed the proposition that "high crimes and
misdemeanors" meant offenses indictable at common law; and Chase's
acquittal went far to affix this reading to the phrase till after the
War between the States.


THE JOHNSON IMPEACHMENT

But with the impeachment of President Johnson in 1867 for "high crimes
and misdemeanors," the controversy was revived. Representative Bingham,
leader of the House Managers of the impeachment, defined an impeachable
offense as follows: "An impeachable high crime or misdemeanor is one in
its nature or consequences subversive of some fundamental or essential
principle of government or highly prejudicial to the public interest,
and this may consist of a violation of the Constitution, of law, of an
official oath, or of duty, by an act committed or omitted, or, without
violating a positive law, by the abuse of discretionary powers from
improper motives or for an improper purpose."[484] Former Justice
Benjamin R. Curtis stated the position of the defense in these words:
"My first position is, that when the Constitution speaks of 'treason,
bribery, and other high crimes and misdemeanors,' it refers to, and
includes only, high criminal offences against the United States, made so
by some law of the United States existing when the acts complained of
were done, and I say that this is plainly to be inferred from each and
every provision of the Constitution on the subject of impeachment."[485]


LATER IMPEACHMENTS

With Johnson's acquittal, the narrow view of "high crimes and
misdemeanors" appeared again to win out. Two successful impeachments of
lower federal judges in recent years have, however, restored something
like the broader conception of the term which Madison and Hamilton had
endorsed. In 1913 Judge Archbald of the Commerce Court was removed from
office by the impeachment process, and disqualified to hold and enjoy
any office of honor, profit or trust under the Constitution, for
soliciting for himself and friends valuable favors from railroad
companies some of which were at the time litigants in his court,
although it was conceded that in so doing he had not committed an
indictable offense;[486] and in 1936 Judge Ritter of the Florida
district court was similarly removed for conduct in relation to a
receivership case which evoked serious doubts as to his integrity,
although on the specific charges against him he was acquitted.[487] It
is probable that in both these instances the final result was influenced
by the consideration that judges of the United States hold office during
"good behavior" and that the impeachment process is the only method
indicated by the Constitution for determining whether a judge's behavior
has been "good." In other words, as to judges of the United States at
least lack of "good behavior" and "high crimes and misdemeanors" are
overlapping if not precisely coincidental concepts.[488]


Notes

[1] As is pointed out by Hamilton in The Federalist No. 69.

[2] Charles C. Thach, The Creation of the Presidency, 1775-1789
(Baltimore, 1922), 36-37.

[3] Ibid. 109.

[4] Max Farrand, Records, II, 185.

[5] Ibid. II, 572 (September 10), 597.

[6] Annals of Congress 383 ff.

[7] Ibid. 396-397; 481-482. For a thorough-going review and evaluation
of this debate, _see_ James Hart, The American Presidency in Action,
152-214 (New York, 1948).

[8] Works of Alexander Hamilton, VII, 76, 80-81 (J.C. Hamilton, ed., New
York, 1851). Hamilton was here simply interpreting the executive power
clause in light of the views of Blackstone, Locke, and Montesquieu as to
the location of power in the conduct of foreign relations. _See_ Edward
S. Corwin, The President, Office and Powers (3d ed.), 459-460. For a
parallel argument to Hamilton's respecting "the judicial power of the
United States," article 1, section 1, clause 1, _see_ Justice Brewer's
opinion in Kansas _v._ Colorado, 206 U.S. 46, 82 (1907).

[9] Myers _v._ United States, 272 U.S. 52 (1926).

[10] Ibid. 118.

[11] 299 U.S. 304 (1936).

[12] Ibid. 315-316, 318. _See also_ Ibid. 319 citing U.S. Senate
Reports, Committee on Foreign Relations, vol. 8, p. 24 (February 15,
1816).

[13] Ibid. 327, citing Panama Refining Co. _v._ Ryan, 293 U.S. 388,
421-422 (1935).

[14] In Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952) the doctrine is
advanced that the President has no power in the field of Congress'
legislative powers except such as are delegated him by Congress. This
doctrine is considered below in the light of previous practice and
adjudication. _See_ pp. 489-499.

[15] _See_ e.g., Abel Upshur, A Brief Inquiry Into the True Nature and
Character of Our Federal Government (1840), 116-117.

[16] The Federalist No. 67, 503.

[17] James Hart, The American Presidency in Action (New York, 1918),
28-43.

[18] 2 Dall. 400 (1790).

[19] Messages and Papers of the Presidents, I, 56.

[20] Corwin, The President, Office and Powers (3d ed.), 377-378,
434-435, 446, 465, 484. "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." Thomas Jefferson, Official Opinion (1790) 5 Ford, ed.
209 (New York, 1892-1899). "In times of peace the people look most to
their representatives; but in war, to the Executive solely." Letter to
Caesar A. Rodney, (1810) Monticello, 9 Ford, ed. 272.

[21] Corwin 20-21, and citations.

[22] Ibid. 21-22, and citations.

[23] Ibid. 22-24.

[24] Ibid. 386. _See also_ ibid. 281.

[25] Ford, The Rise and Growth of American Politics (New York, 1914),
293.

[26] As to the meaning of "the fourth day of March", _see_ Charles
Warren, Political Practice and the Constitution, 89 Univ. of Pa. L. Rev.
(June, 1941) 1003-1025.

[27] On the anti-third term tradition, _see_ Corwin, The President,
Office and Powers (3d ed.), 43-49, 388-392.

[28] McPherson _v._ Blacker, 146 U.S. 1, 27 (1892).

[29] Ibid. 28-29.

[30] Max Farrand, II, 97.

[31] In re Green, 134 U.S. 377, 379-380 (1890).

[32] United States _v._ Hartwell, 6 Wall. 385, 393 (1868).

[33] Hawke _v._ Smith, 253 U.S. 221 (1920).

[34] Burroughs _v._ United States, 290 U.S. 534, 545 (1934).

[35] Ex parte Yarbrough, 110 U.S. 651 (1884).

[36] Burroughs _v._ United States, 290 U.S. 534 (1934).

[37] Ibid. 546. During the recent war, Congress laid claim in the act of
September 16, 1942, to the power "in time of war" to secure to every
member of the armed forces the right to vote for Members of Congress and
Presidential Electors notwithstanding any provisions of State law
relating to the registration of qualified voters or any poll tax
requirement under State law. The constitutional validity of this act was
open to serious question and by the act of April 1, 1944 was abandoned.
The latter act established a War Ballot Commission which was directed to
prepare an adequate number of official war ballots, whereby the service
men would be enabled in certain contingencies to vote for Members of
Congress and Presidential Electors; but the validity of such ballots was
left to be determined by State election officials under State laws. 50
(App.) U.S.C.A. §§ 301-302, 331, 341.

[38] 343 U.S. 214 (1952).

[39] _See_ pp. 942-944.

[40] 1 Stat. 239.

[41] 3 U.S.C. § 23.

[42] 3 U.S.C. § 21.

[43] Public Law 199, 80th Cong., 1st sess. By section 202 (a) of Public
Law 253 of the 80th Cong., 1st sess., approved July 26, 1947, that is,
eight days after Public Law 199, the "Secretary of War" and the
"Secretary of the Navy" were stricken from the line of succession and
the "Secretary of Defense" whose office Public Law 253 created, was
inserted instead.

[44] _Cf._ 13 Op. Atty. Gen. 161 (1869), holding that a specific tax by
the United States upon the salary of an officer, to be deducted from the
amount which otherwise would by law be payable as such salary, is a
diminution of the compensation to be paid to him, which, in the case of
the President of the United States, would be unconstitutional if the act
of Congress levying the tax was passed during his official term.

[45] The Federalist No. 69, 513, 515.

[46] Story's Commentaries, II, § 1492.

[47] Fleming _v._ Page, 9 How. 603, 615, 618 (1850).

[48] Ex parte Milligan, 4 Wall. 2, 139 (1866).

[49] 1 Stat. 424 (1795); 2 Stat. 443 (1807). _See also_ Martin _v._
Mott, 12 Wheat. 19, 32-33 (1827), asserting the finality of the
President's judgment of the existence of a state of facts requiring his
exercise of the powers conferred by the act of 1795.

[50] Messages and Papers of the Presidents, VII, 3221.

[51] 2 Bl. 635 (1863).

[52] Messages and Papers of the Presidents, VII, 3215, 3216, 3481.

[53] 2 Bl. at 668-670.

[54] 12 Stat. 326 (1861).

[55] James G. Randall, Constitutional Problems under Lincoln, 118-139
(New York, 1926).

[56] _See_ the Government's brief in United States _v._ Montgomery Ward
and Co., 150 F. 2d 369 (1945).

[57] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 327
(1936).

[58] _See_ White House Digest of Provisions of Law Which Would Become
Operative upon Proclamation of a National Emergency by the President.
The Digest is dated December 11, 1950. It was released to the press on
December 16th.

[59] 56 Stat. 23.

[60] Cong. Rec. 77th Cong., 2d sess., vol. 88, pt. 5, p. 7044 (September
7, 1942).

[61] 50 U.S.C.A. War, App. 1651. For Emergency War Agencies that were
functioning at any particular time, consult the _United States
Government Manual_ of the approximate date. The executive order creating
an agency is cited by number. For a Chronological List of Wartime
Agencies (including government corporations) and some account of their
creation down to the close of 1942, _see_ chapter on War Powers and
Their Administration by Dean Arthur T. Vanderbilt in 1942 Annual Survey
of American Law (New York University School of Law, 1945), pp. 106-231.
At the close of the war there were 29 agencies grouped under OEM, of
which OCD, WMC, and OC were the first to fold up. At the same date there
were 101 separate government corporations, engaged variously in
production, transportation, power-generation, banking and lending,
housing, insurance, merchandising, and other lines of business and
enjoying the independence of autonomous republics, being subject to
neither Congressional nor presidential scrutiny, nor to audit by the
General Accounting Office.

[62] 143 F. 2d. 145 (1944).

[63] _See_ Corwin, The President, Office and Powers (3d ed.) 296, 492.

[64] Exec. Order 9066, 7 Fed. Reg. 1407.

[65] 56 Stat. 173.

[66] Hirabayashi _v._ United States, 320 U.S. 81, 91-92 (1943).

[67] Korematsu _v._ United States, 323 U.S. 214 (1944).

[68] New York Times, June 10, 1941.

[69] 7 Fed. Reg. 237.

[70] 57 Stat. 163.

[71] "During the course of the year [1945] the President directed the
seizure of many of the nation's industries in the course of labor
disputes. The total number of facilities taken over is significant: two
railroad systems, one public utility, nine industrial companies, the
transportation systems of two cities, the motor carriers in one city, a
towing company and a butadiene plant. In addition thereto the President
on April 10 seized 218 bituminous coal mines belonging to 162 companies
and on May 7, 33 more bituminous mines of 24 additional companies. The
anthracite coal industry fared no better; on May 3 and May 7 all the
mines of 365 companies and operators were taken away from the owners,
and on October 6 the President ordered the seizure of 54 plants and pipe
lines of 29 petroleum producing companies in addition to four taken over
prior thereto.

"During the year disputes between railroad companies and the
Brotherhoods resulted in the establishment of twelve Railroad Emergency
Boards to investigate disputes and to report to the President. The
President also established on October 9 a Railway Express Emergency
Board to investigate the dispute between the Railway Express and a
union.

"To implement the directives of the National War Labor Board, the Office
of Economic Stabilization directed the cancellation of all priority
applications, allocation applications and outstanding priorities and
allocations in the cases of three clothing companies and one
transportation system which refused to comply with orders of the
National War Labor Board." Arthur T. Vanderbilt, War Powers and their
Administration, 1945, Annual Survey of American Law (New York University
School of Law), pp. 271-273.

[72] 8 Fed. Reg. 11463.

[73] 56 Stat. 23.

[74] 322 U.S. 398 (1944).

[75] Ibid. 405-406.

[76] _See_ Corwin, The President, Office and Powers (3d ed.) 302-303.

[77] Charles Fairman, The Law of Martial Rule (Chicago, 1930), 20-22.
Albert Venn Dicey, Introduction to the Study of the Law of the
Constitution (7th ed.), 283-287.

[78] Dicey, Introduction to the Study of the Law of the Constitution,
Chap. VIII, 262-271.

[79] 7 How. 1 (1849). _See also_ Martin _v._ Mott, 12 Wheat. 19, 32-33
(1827).

[80] 2 Bl. 635 (1863).

[81] 4 Wall. 2 (1866).

[82] Ibid. 127.

[83] Ibid. 139-140. In Ex parte Vallandigham the Court had held while
war was still flagrant that it had no power to review by certiorari the
proceedings of a military commission ordered by a general officer of the
Army, commanding a military department. 1 Wall. 243 (1864).

[84] 31 Stat. 141, 153.

[85] Duncan _v._ Kahanamoku, 327 U.S. 304 (1946).

[86] Ibid. 324.

[87] Ibid. 336.

[88] Ibid. 343.

[89] Ex parte Quirin, 317 U.S. 1 (1942).

[90] 317 U.S. 1, 29-30, 35 (1942).

[91] Ibid. 1, 41-42.

[92] Ibid. 28-29.

[93] 1 Stat. 577 (1798).

[94] 327 U.S. 1 (1946).

[95] Ibid. 81.

[96] _See_ Leo Gross, The Criminality of Aggressive War, 41 American
Political Science Review (April, 1947), 205-235.

[97] Fleming _v._ Page, 9 How. 603, 615 (1850).

[98] Madsen _v._ Kinsella, 343 U.S. 341, 348 (1952). _See also_ Johnson
_v._ Eisentrager, 339 U.S. 703, 789 (1950).

[99] Totten _v._ United States, 92 U.S. 105 (1876).

[100] Hamilton _v._ Dillin, 21 Wall. 73 (1875); Haver _v._ Yaker, 9
Wall. 32 (1869).

[101] Mitchell _v._ Harmony, 13 How. 115 (1852); United States _v._
Russell, 13 Wall. 623 (1871); Totten _v._ United States, note 3 above;
[Transcriber's Note: Reference is to Footnote 99, above.] 40 Op. Atty.
Gen. 251-253 (1942).

[102] _Cf._ the Protocol of August 12, 1898, which largely foreshadowed
the Peace of Paris; and President Wilson's Fourteen Points, which were
incorporated in the Armistice of November 11, 1918.

[103] Fleming _v._ Page, 9 How. 603, 615 (1850).

[104] Santiago _v._ Nogueras, 214 U.S. 260 (1909). As to temporarily
occupied territory, _see_ Dooley _v._ United States, 182 U.S. 222,
230-231 (1901).

[105] Swaim _v._ United States, 165 U.S. 553 (1897); and cases there
reviewed. _See also_ Givens _v._ Zerbst, 255 U.S. 11 (1921).

[106] 15 Op. Atty. Gen. 297 and note; 30 ibid. 303; _cf._ 1 ibid. 233,
234, where the contrary view is stated by Attorney General Wirt.

[107] Ex parte Quirin, 317 U.S. 1, 28-29 (1942).

[108] General Orders, No. 100, Official Records, War of Rebellion, ser.
III, vol. III; April 24, 1863.

[109] _See_ e.g., Mimmack _v._ United States, 97 U.S. 426, 437 (1878);
United States _v._ Corson, 114 U.S. 619 (1885).

[110] 10 U.S.C. § 1590.

[111] Mullan _v._ United States, 140 U.S. 240 (1891); Wallace _v._
United States, 257 U.S. 541 (1922).

[112] Surrogate's Court, Dutchess County, New York, ruling July 25, 1950
that the estate of Franklin D. Roosevelt was not entitled to tax
benefits under sections 421 and 939 of the Internal Revenue Code, which
extends certain tax benefits to persons dying in the military service of
the United States. New York Times, July 26, 1950, p. 27, col. 1.

[113] Farrand, I, 70, 97, 110; II, 285, 328, 335-337, 367, 537-542
(_passim_).

[114] Heads of Executive Departments except the Postmaster General have
no fixed legal terms. For the history of legislation on the subject.
_See_ 36 Op. Atty. Gen. 12-16 (April 18, 1929); _also_ Everett S. Brown,
The Tenure of Cabinet Officers, 42 American Political Science Review
529-532 (June, 1948).

[115] _See_ Corwin, The President, Office and Powers (3d ed.), New York
University Press, 1948, 21-22, 74, 98-99, 257, 358-364, 372-373,
378-381, 516-519. The only question of a constitutional nature that has
arisen concerning the Cabinet meeting is as to its right to meet, on the
call of the Secretary of State, in the President's absence. Ibid. 402.

[116] United States _v._ Wilson, 7 Pet. 150, 160-161 (1833).

[117] 236 U.S. 79, 86 (1915).

[118] Ibid. 90-91.

[119] Armstrong _v._ United States, 13 Wall. 154, 156 (1872). In Brown
_v._ Walker, 161 U.S. 591 (1896), the Court had said: "It is almost a
necessary corollary of the above propositions that, if the witness has
already received a pardon, he cannot longer set up his privilege, since
he stands with respect to such offence as if it had never been
committed." Ibid. 599, citing British cases.

[120] Biddle _v._ Perovich, 274 U.S. 480, 486 (1927).

[121] _Cf._ W.H. Humbert, The Pardoning Power of the President, American
Council on Public Affairs (Washington, 1941) 73.

[122] 274 U.S. at 486.

[123] 23 Op. Atty. Gen. 363 (1901); Illinois Central R. Co. _v._
Bosworth, 133 U.S. 92 (1890).

[124] Ex parte Wells, 18 How. 307 (1856). For the contrary view _see_
some early opinions of Attorney General, 1 Opins. Atty. Gen. 342 (1820);
2 ibid. 275 (1829); 5 ibid. 687 (1795); _cf._ 4 ibid. 453; United States
_v._ Wilson, 7 Pet. 150, 161 (1833).

[125] Ex parte United States, 242 U.S. 27 (1916). Amendment of sentence,
however, (within the same term of court) by shortening the term of
imprisonment, although defendant had already been committed, is a
judicial act and no infringement of the pardoning power. United States
_v._ Benz, 282 U.S. 304 (1931).

[126] _See_ Messages and Papers of the Presidents, I, 181, 303; II, 543;
VII, 3414, 3508; VIII, 3853; XIV, 6690.

[127] United States _v._ Klein, 13 Wall. 128, 147 (1872). _See also_
United States _v._ Padelford, 9 Wall. 531 (1870).

[128] Ex parte Garland, 4 Wall. 333, 380 (1867).

[129] F.W. Maitland, Constitutional History of England (Cambridge,
1903), 302-306; 1 Op. Atty. Gen. 342 (1820).

[130] 267 U.S. 87 (1925).

[131] Ibid. 110-111.

[132] Ibid. 121, 122.

[133] 4 Wall. 333, 381 (1867).

[134] Ibid. 380.

[135] Ibid. 396-397.

[136] 233 U.S. 51 (1914).

[137] Ibid. 59.

[138] 142 U.S. 450 (1892).

[139] Knote _v._ United States, 95 U.S. 149, 153-154 (1877).

[140] United States _v._ Klein, 13 Wall. 128, 143, 148 (1872).

[141] The Laura, 114 U.S. 411 (1885).

[142] Brown _v._ Walker, 161 U.S. 591 (1896).

[143] Farrand, II, 183.

[144] Ibid. 538-539.

[145] The Federalist No. 64.

[146] Farrand, III, 424.

[147] Washington sought to use the Senate as a council, but the effort
proved futile, principally because the Senate balked. For the details
_see_ Corwin, The President, Office and Powers (3d ed.), 253-257.

[148] United States _v._ Curtiss-Wright Export Corp., 299 U.S. 304, 319
(1936).

[149] Corwin, The President, Office and Powers (3d ed.), 467-468.

[150] "Obviously the treaty must contain the whole contract between the
parties, and the power of the Senate is limited to a ratification of
such terms as have already been agreed upon between the President,
acting for the United States, and the commissioners of the other
contracting power. The Senate has no right to ratify the treaty and
introduce new terms into it, which shall be obligatory upon the other
power, although it may refuse its ratification, or make such
ratifications conditional upon the adoption of amendments to the
treaty." Fourteen Diamond Rings _v._ United States, 183 U.S. 176, 183
(1901).

[151] _Cf._ Article I, section 5, clause 1; _also_ Missouri Pacific R.
Co. _v._ Kansas, 248 U.S. 276, 283-284 (1919).

[152] _See_ Samuel Crandall, Treaties, Their Making and Enforcement (2d
ed., Washington, 1916), § 53, for instances.

[153] Foster _v._ Neilson, 2 Pet. 253, 314 (1829). "Though several
writers on the subject of government place that [the treaty-making]
power in the class of executive authorities, yet this is evidently an
arbitrary disposition; for if we attend carefully to its operation, it
will be found to partake more of the legislative than of the executive
character, though it does not seem strictly to fall within the
definition of either. The essence of the legislative authority is to
enact laws, or, in other words, to prescribe rules for the regulation of
the society; while the execution of the laws, and the employment of the
common strength, either for this purpose, or for the common defence,
seem to comprise all the functions of the executive magistrate. The
power of making treaties is, plainly, neither the one nor the other. It
relates neither to the execution of the subsisting laws, nor to the
enaction of new ones; and still less to an exertion of the common
strength. Its objects are _contracts_ with foreign nations, which have
the force of law, but derive it from the obligations of good faith. They
are not rules prescribed by the sovereign to the subject, but agreements
between sovereign and sovereign. The power in question seems therefore
to form a distinct department, and to belong, properly, neither to the
legislative nor to the executive." Hamilton in The Federalist No. 75.

[154] Head Money Cases, 112 U.S. 589, 598 (1884). For treaty provisions
operative as "law of the land" ("self-executing"), _see_ Crandall,
Treaties (2d ed.), 36-42, 49-62 (_passim_), 151, 153-163, 179, 238-239,
286, 321, 338, 345-346. For treaty provisions of an "executory"
character, _see_ ibid. 162-163, 232, 236, 238, 493, 497, 532, 570, 589.

[155] _See_ Crandall, Chap. III, 24-42.

[156] 3 Dall. 199 (1796).

[157] 3 Cr. 454 (1806).

[158] "In Chirac _v._ Chirac (2 Wheat. 259), it was held by this court
that a treaty with France gave to her citizens the right to purchase and
hold land in the United States, removed the incapacity of alienage and
placed them in precisely the same situation as if they had been citizens
of this country. The State law was hardly adverted to, and seems not to
have been considered a factor of any importance in this view of the
case. The same doctrine was reaffirmed touching this treaty in Carneal
_v._ Banks (10 Wheat. 181) and with respect to the British Treaty of
1794, in Hughes _v._ Edwards (9 Wheat. 489). A treaty stipulation may be
effectual to protect the land of an alien from forfeiture by escheat
under the laws of a State. Orr _v._ Hodgson (4 Wheat. 458). By the
British treaty of 1794, 'all impediment of alienage was absolutely
levelled with the ground despite the laws of the States. It is the
direct constitutional question in its fullest conditions. Yet the
Supreme Court held that the stipulation was within the constitutional
powers of the Union. Fairfax's Devisees _v._ Hunter's Lessee, 7 Cr. 627;
_see_ Ware _v._ Hylton, 3 Dall. 242.' 8 Op. Attys-Gen. 417. Mr. Calhoun,
after laying down certain exceptions and qualifications which do not
affect this case, says: 'Within these limits all questions which may
arise between us and other powers, be the subject-matter what it may,
fall within the treaty-making power and may be adjusted by it.' Treat.
on the Const. and Gov. of the U.S. 204.

"If the national government has not the power to do what is done by such
treaties, it cannot be done at all, for the States are expressly
forbidden to 'enter into any treaty, alliance, or confederation.'
Const., art. I. sect. 10.

"It must always be borne in mind that the Constitution, laws, and
treaties of the United States are as much a part of the law of every
State as its own local laws and Constitution. This is a fundamental
principle in our system of complex national polity." 100 U.S. at
489-490.

[159] 100 U.S. 483 (1880).

[160] _See also_ De Geofroy _v._ Riggs, 133 U.S. 258 (1890); Sullivan
_v._ Kidd, 254 U.S. 433 (1921); Nielsen _v._ Johnson, 279 U.S. 47
(1929). But a right under treaty to acquire and dispose of property does
not except aliens from the operation of a State statute prohibiting
conveyances of homestead property by any instrument not executed by both
husband and wife. Todok _v._ Union State Bank, 281 U.S. 449 (1930). Nor
was a treaty stipulation guaranteeing to the citizens of each country,
in the territory of the other, equality with the natives of rights and
privileges in respect to protection and security of person and property,
violated by a State statute which denied to a nonresident alien _wife_
of a person killed within the State, the right to sue for wrongful
death, although such right was afforded to native resident _relatives_.
Maiorano _v._ Baltimore & O.R. Co., 213 U.S. 268 (1909). The treaty in
question having been amended in view of this decision, the question
arose whether the new provision covered the case of death without fault
or negligence in which, by the Pennsylvania Workmen's Compensation Act,
compensation was expressly limited to resident parents; the Supreme
Court held that it did not. Liberato _v._ Royer, 270 U.S. 535 (1926).

[161] Terrace _v._ Thompson, 263 U.S. 197 (1923).

[162] 332 U.S. 633 (1948). _See also_ Takahashi _v._ Fish and Game
Comm., 334 U.S. 410 (1948), in which a California statute prohibiting
the issuance of fishing licenses to persons ineligible to citizenship is
disallowed, both on the basis of Amendment XIV and on the ground that
the statute invaded a field of power reserved to the National
Government, namely, the determination of the conditions on which aliens
may be admitted, naturalized, and permitted to reside in the United
States. For the latter proposition Hines _v._ Davidowitz, 312 U.S. 52,
66 (1941) was relied upon.

[163] This occurred in the much advertised case of Sei Fujii _v._ State
of California, 242 P. 2d, 617 (1952). A lower California court had held
that the legislation involved was void under the United Nations Charter,
but the California Supreme Court was unanimous in rejecting this view.
The Charter provisions invoked in this connection [Arts. 1, 55, and 56],
said Chief Justice Gibson, "We are satisfied * * * were not intended to
supersede domestic legislation".

[164] Clark _v._ Allen, 331 U.S. 503 (1947).

[165] 1 Cr. 103, 109 (1801).

[166] Foster _v._ Neilson, 2 Pet. 253, 314 (1829); Strother _v._ Lucas,
12 Pet. 410, 439 (1838); Edye _v._ Robertson (Head Money Cases), 112
U.S. 580, 598, 599 (1884); United States _v._ Rauscher, 119 U.S. 407,
419 (1886); Bacardi Corp. _v._ Domenech, 311 U.S. 150 (1940).

[167] The doctrine of political questions is not always strictly adhered
to in cases of treaty interpretation. In the case of the "_Appam_" it
was conspicuously departed from. This was a British merchant vessel
which was captured by a German cruiser early in 1916 and brought by a
German crew into Newport News, Virginia. The German Imperial Government
claimed that under the Treaties of 1799 and 1828 between the United
States and Prussia, the vessel was entitled to remain in American waters
indefinitely. Secretary of State Lansing ruled against the claim, and
the Supreme Court later did the same, but ostensibly on independent
grounds and without reference to the attitude of the Department of
State. The Steamship Appam, 243 U.S. 124 (1917). Although it is a
principle of International Law that, as respects the rights of the
signatory parties, a treaty is binding from the date of signature, a
different rule applies in this country as to a treaty as "law of the
land" and as such a source of human rights. Before a treaty can thus
operate it must have been approved by the Senate. Haver _v._ Yaker, 9
Wall. 32 (1870).

[168] _See_ Crandall, Treaties, Their Making and Enforcement, (2d ed.),
165-171, with citations.

[169] Madison Writings (Hunt ed.), 264.

[170] "We express no opinion as to whether Congress is bound to
appropriate the money * * * It is not necessary to consider it in this
case, as Congress made prompt appropriation of the money stipulated in
the treaty" (the Treaty of Paris of 1899 between Spain and the United
States). De Lima _v._ Bidwell, 182 U.S. 1, 198 (1901). For a list of
earlier appropriations of the same kind, _see_ Crandall, 179-180, n. 35.

[171] Willoughby, On the Constitution, I (2d ed., New York, 1929), 558.
_See also_ H. Rept. 2630, 48th Cong., 2d sess., for an exhaustive review
of the subject.

[172] Edye _v._ Robertson (Head Money Cases), 112 U.S. 580, 598-599
(1884). The repealability of treaties by act of Congress was first
asserted in an opinion of the Attorney General in 1854 (6 Op. Atty. Gen.
291). The year following the doctrine was adopted judicially in a
lengthy and cogently argued opinion of Justice Curtis, speaking for a
United States circuit court in Taylor _v._ Morton, 23 Fed. Cas. No.
13,799 (1855). The case turned on the following question: "If an act of
Congress should levy a duty upon imports, which an existing commercial
treaty declares shall not be levied, so that the treaty is in conflict
with the act, does the former or the latter give the rule of decision in
a judicial tribunal of the United States, in a case to which one rule or
the other must be applied?"

Citing the supremacy clause of the Constitution, Justice Curtis said:
"There is nothing in the language of this clause which enables us to
say, that in the case supposed, the treaty, and not the act of Congress,
is to afford the rule. Ordinarily, treaties are not rules prescribed by
sovereigns for the conduct of their subjects, but contracts, by which
they agree to regulate their own conduct. This provision of our
Constitution has made treaties part of our municipal law. But it has not
assigned to them any particular degree of authority in our municipal
law, nor declared whether laws so enacted shall or shall not be
paramount to laws otherwise enacted. * * * [This] is solely a question
of municipal, as distinguished from public law. The foreign sovereign
between whom and the United States a treaty has been made, has a right
to expect and require its stipulations to be kept with scrupulous good
faith; but through what internal arrangements this shall be done, is,
exclusively, for the consideration of the United States. Whether the
treaty shall itself be the rule of action of the people as well as the
government, whether the power to enforce and apply it shall reside in
one department, or another, neither the treaty itself, nor any
implication drawn from it, gives him any right to inquire. If the people
of the United States were to repeal so much of their constitution as
makes treaties part of their municipal law, no foreign sovereign with
whom a treaty exists could justly complain, for it is not a matter with
which he has any concern. * * * By the eighth section of the first
article of the Constitution, power is conferred on Congress to regulate
commerce with foreign nations, and to lay duties, and to make all laws
necessary and proper for carrying those powers into execution. That the
act now in question is within the legislative power of Congress, unless
that power is controlled by the treaty, is not doubted. It must be
admitted, also, that in general, power to legislate on a particular
subject, includes power to modify and repeal existing laws on that
subject, and either substitute new laws in their place, or leave the
subject without regulation, in those particulars to which the repealed
laws applied. There is therefore nothing in the mere fact that a treaty
is a law, which would prevent Congress from repealing it. Unless it is
for some reason distinguishable from other laws, the rule which it gives
may be displaced by the legislative power, at its pleasure. * * * I
think it is impossible to maintain that, under our Constitution, the
President and Senate exclusively, possess the power to modify or repeal
a law found in a treaty. If this were so, inasmuch as they can change or
abrogate one treaty, only by making another inconsistent with the first,
the government of the United States could not act at all, to that
effect, without the consent of some foreign government; for no new
treaty, affecting, in any manner, one already in existence, can be made
without the concurrence of two parties, one of whom must be a foreign
sovereign. That the Constitution was designed to place our country in
this helpless condition, is a supposition wholly inadmissible. It is not
only inconsistent with the necessities of a nation, but negatived by the
express words of the Constitution. * * *" _See also_ The Cherokee
Tobacco, 11 Wall. 616 (1871); United States _v._ Forty-Three Gallons of
Whiskey, 108 U.S. 491, 496 (1883); Botiller _v._ Dominguez, 130 U.S. 238
(1889); Chae Chan Ping _v._ United States, 130 U.S. 581, 600 (1889);
Whitney _v._ Robertson, 124 U.S. 190, 194 (1888); Fong Yue Ting _v._
United States, 149 U.S. 688, 721 (1893); etc. "Congress by legislation,
and so far as the people and authorities of the United States are
concerned, could abrogate a treaty made between this country and another
country which had been negotiated by the President and approved by the
Senate." La Abra Silver Mining Co. _v._ United States, 175 U.S. 423, 460
(1899). _Cf._ Reichert _v._ Felps, 6 Wall. 160, 165-166 (1868), where it
is stated obiter that "Congress is bound to regard the public treaties,
and it had no power * * * to nullify [Indian] titles confirmed many
years before * * *"

[173] United States _v._ Schooner Peggy, 1 Cr. 103 (1801).

[174] Foster _v._ Neilson, 2 Pet. 253 (1829).

[175] United States _v._ Percheman, 7 Pet. 51 (1833).

[176] Willoughby, On the Constitution, I, (2d ed.), 555.

[177] 288 U.S. 102 (1933).

[178] Ibid. 107-122.

[179] 124 U.S. 190 (1888).

[180] It is arguable that the maximum _leget posteriores_ is not the
most eligible rule for determining conflicts between "laws of the United
States * * * made in pursuance thereof" (i.e. of the Constitution) and
"treaties made * * * under the authority of the United States". It may
be that the former, being mentioned immediately after "this
Constitution" and before "treaties," are entitled always to prevail over
the latter, just as both acts of Congress and treaties yield to the
Constitution.

[181] 1 Stat. 578.

[182] 4 Dall. 37 (1800).

[183] Crandall, Treaties (2d ed.), 458; _See_ Messages and Papers of the
Presidents, IV, 2245; and Benton, 15 Abridgment of the Debates of
Congress, 478. Mangum of North Carolina denied that Congress could
authorize the President to give notice: "He entertained not a particle
of doubt that the question never could have been thrown upon Congress
unless as a war or _quasi_ war measure. * * * Congress had no power of
making or breaking a treaty." He owned, however, that he might appear
singular in his view of the matter. Ibid. 472.

[184] Crandall, 458-462; Wright, The Control of American Foreign
Relations, 258.

[185] 38 Stat. 1164.

[186] Crandall, 460.

[187] _See_ Jesse S. Reeves, The Jones Act and the Denunciation of
Treaties, 15 American Journal of International Law (January, 1921)
33-38. Among other precedents which call into question the exclusive
significance of the legislative role in the termination of treaties as
international conventions is one mentioned by Mr. Taft: "In my
administration the lower house passed a resolution directing the
abrogation of the Russian Treaty of 1832, couched in terms which would
have been most offensive to Russia, and it did this by a vote so nearly
unanimous as to indicate that in the Senate, too, the same resolution
would pass. It would have strained our relations with Russia in a way
that seemed unwise. The treaty was an old one, and its construction had
been constantly the subject of controversy between the two countries,
and therefore, to obviate what I felt would produce unnecessary trouble
in our foreign relations, I indicated to the Russian ambassador the
situation, and advised him that I deemed it wise to abrogate the treaty,
which, as President, I had the right to do by due notice couched in a
friendly and courteous tone and accompanied by an invitation to begin
negotiations for a new treaty. Having done this, I notified the Senate
of the fact, and this enabled the wiser heads of the Senate to
substitute for the house resolution a resolution approving my action,
and in this way the passage of the dangerous resolution was avoided."
The resolution in question, it should be added, was a joint resolution,
and purported to ratify the President's action. The President himself
had asked only for ratification and approval of his course by the
Senate. William Howard Taft, The Presidency (New York, 1916), 112-114.
Two other precedents bearing on outright abrogation of treaties are the
following. The question whether to regard the extradition article of the
Treaty of 1842 with Great Britain as void on account of certain acts of
the British Government was laid before Congress by President Grant in a
special message dated June 20, 1876, in the following terms: "It is for
the wisdom of Congress to determine whether the article of the treaty
relating to extradition is to be any longer regarded as obligatory on
the Government of the United States or as forming part of the supreme
law of the land. Should the attitude of the British Government remain
unchanged, I shall not, without an expression of the wish of Congress
that I should do so, take any action either in making or granting
requisitions for the surrender of fugitive criminals under the treaty of
1842." Messages and Papers of the Presidents, IX, 4324, 4327. Three
years later Congress passed a resolution requiring the President to
abrogate articles V and VI of the Treaty of 1868 with China. President
Hayes vetoed it, partly on the ground that "the power of modifying an
existing treaty, whether by adding or striking out provisions, is a part
of the treaty-making power under the Constitution. * * *" At the same
time, he also wrote: "The authority of Congress to terminate a treaty
with a foreign power by expressing the will of the nation no longer to
adhere to it is as free from controversy under our Constitution as is
the further proposition that the power of making new treaties or
modifying existing treaties is not lodged by the Constitution in
Congress, but in the President, by and with the advice and consent of
the Senate, as shown by the concurrence of two-thirds of that body."
Ibid. 4470-4471. The veto would seem to have been based on a quibble.

[188] 229 U.S. 447 (1913).

[189] Ibid. 473-476.

[190] Clark _v._ Allen, 331 U.S. 503 (1947).

[191] Charlton _v._ Kelly, 229 U.S. 447 (1913).

[192] Fed. Cas. No. 13,799 (1855).

[193] 2 Pet. 253, 309 (1829).

[194] Acts of March 2, 1829 and of February 24, 1855; 4 Stat. 359 and 10
Stat. 614.

[195] In re Ross, 140 U.S. 453 (1891), where the treaty provisions
involved are given. The supplementary legislation was later reenacted as
Rev. Stat. §§ 4083-4091.

[196] 18 U.S.C.A. §§ 3181-3195.

[197] Baldwin _v._ Franks, 120 U.S. 678, 683 (1887).

[198] Neely _v._ Henkel, 180 U.S. 109, 121 (1901). A different theory is
offered by Justice Story in his opinion for the Court in Prigg _v._
Pennsylvania, 16 Pet. 539 (1842), in the following words: "Treaties made
between the United States and foreign powers, often contain special
provisions, which do not execute themselves, but require the
interposition of Congress to carry them into effect, and Congress has
constantly, in such cases, legislated on the subject; yet, although the
power is given to the executive, with the consent of the senate, to make
treaties, the power is nowhere in positive terms conferred upon Congress
to make laws to carry the stipulations of treaties into effect. It has
been supposed to result from the duty of the national government to
fulfil all the obligations of treaties." Ibid. 619. Story was here in
quest of arguments to prove that Congress had power to enact a fugitive
slave law, which he based on its power "to carry into effect rights
expressly given and duties expressly enjoined" by the Constitution.
Ibid. 618-619. But the treaty-making power is neither a right nor a
duty, but one of the powers "vested by this Constitution in the
Government of the United States." Article I, section 8, clause 18.

[199] Geofroy _v._ Riggs, 133 U.S. 258 (1890). _See also_ Fort
Leavenworth Railroad Co. _v._ Lowe, 114 U.S. 525, 541 (1885), which is
cited in the Field opinion in support of the idea that no cession of any
portion of a State's territory could be effected without the State's
consent. The statement is the purest obiter.

[200] Ibid. 267.

[201] The majority of the cases, as was pointed out earlier, dealt with
the competence of the treaty-making power to grant aliens the right to
inherit real property contrary to State Law. The nearest the Court ever
came to lending countenance to the State Rights argument in this
connection was in Frederickson _v._ Louisiana, 23 How. 445 (1860). _See_
ibid. 448.

[202] 252 U.S. 416 (1920).

[203] Ibid. 433-434.

[204] Ibid. 435.

[205] 299 U.S. 304 (1936).

[206] Ibid. 318. "The treaty-making power vested in our government
extends to all proper subjects of negotiation with foreign governments.
It can, equally with any of the former or present governments of Europe,
make treaties providing for the exercise of judicial authority in other
countries by its officers appointed to reside therein." In re Ross, 140
U.S. 453, 463 (1891).

[207] Jefferson excepted out of the treaty-making power the delegated
powers of Congress, though just what he meant by this exception is
uncertain. He may have meant that no international agreement could be
constitutionally entered into by the United States within the sphere of
such powers, or only that treaty-provisions dealing with matters which
are also subject to the legislative power of Congress must, in order to
become law of the land, receive the assent of Congress. The latter
interpretation, however, does not state a limitation on the power of
making treaties in the sense of international conventions, but rather a
necessary procedure before certain conventions are cognizable by the
courts in the enforcement of rights under them, while the former
interpretation has been contradicted in practice from the outset.

Various other limitations to the treaty-making power have been suggested
from time to time. Thus, it has been contended that the territory of a
State of the Union could not be ceded without such State's consent, _see
above_; also, that while foreign territory can be annexed to the United
States by the treaty-making power, it could not be incorporated with the
United States except with the consent of Congress; also, that while the
treaty-making power can consent to the United States being sued for
damages in an international tribunal for an alleged incorrect decision
of a court of the United States, it could not consent to an appeal being
taken from one of its courts to an international tribunal.

The first of these alleged limitations may be dismissed as resting on
the unallowable idea that the United States is not as to its powers a
territorial government, but only the agent of the States. In the words
of Chancellor Kent: "The better opinion would seem to be, that such a
power of cession of the territory of a State without its consent does
reside exclusively in the treaty-making power, under the Constitution of
the United States, yet sound discretion would forbid the exercise of it
without the consent of the local government who are interested, except
in cases of great necessity, in which the consent might be presumed." 1
Comm. 166-167 and note. This seems also to have been substantially the
view of Marshall and Story. _See_ Willoughby, On the Constitution, I (2d
ed., 1929), 575-576. The second suggested limitation, which was urged at
tremendous length by Chief Justice White in his concurring opinion for
himself and three other Justices, in Downes _v._ Bidwell, 182 U.S. 244,
310-344 (1901), boils down simply to the question of correct
constitutional procedure for the effectuation of a treaty; and much the
same may be said of the third alleged limitation. This limitation was
first suggested in connection with the Hague Convention of 1907
providing for an International Prize Court as a result of appeal from
the prize courts of belligerents. To this arrangement President Taft
objected that the treaty-making power could not transfer to a tribunal
not known to the Constitution part of the "judicial power of the United
States," and upon this view of the matter dispensation was finally
granted the United States in a special protocol whereby this nation was
allowed, in lieu of granting appeals from its prize courts to the
International Court, to be mulcted in damages in the latter for
erroneous decisions in the former. It is submitted that President Taft's
position was fallacious, for the simple reason that not even the whole
American nation is entitled to judge finally of its rights or of those
of its citizens under the law which binds all nations and determines
their rights; and that, therefore, the whole American nation never had
any authority to create a judicial power vested with any such
jurisdiction. _See_ Edye _v._ Robertson (Head Money Cases), 112 U.S.
580, 598 (1884). The law of nations seems of itself to presuppose a
tribunal of nations with coextensive jurisdiction. Thus there is no
reason why a completely independent nation like the United States may
not consent to be bound by the decisions of such a tribunal without any
derogation from its rightful sovereignty. And if "the authority of the
United States" is the authority of the nation in the field of foreign
relations--if the National Government has constitutional powers
coextensive with its international responsibilities--we must conclude
that such consent can be validly given through the existing
treaty-making power. _See_ Favoring Membership of the United States in
the Permanent Court of International Justice, H. Rept. 1569, 68th Cong.,
2d sess.

[208] 5 Pet. 1 (1831).

[209] 6 Pet. 515 (1832).

[210] Ibid. 558.

[211] Holden _v._ Joy, 17 Wall. 211, 242 (1872); United States _v._ 43
Gallons of Whiskey, etc., 93 U.S. 188, 192 (1876); Dick _v._ United
States, 208 U.S. 340, 355-356 (1908).

[212] The New York Indians, 5 Wall. 761 (1867).

[213] The Kansas Indians, 5 Wall. 737, 757 (1867).

[214] United States _v._ 43 Gallons of Whiskey, etc., 93 U.S. 188, 196
(1876).

[215] The Cherokee Tobacco, 11 Wall. 616 (1871). _See also_ Ward _v._
Race Horse, 163 U.S. 504, 511 (1896); and Thomas _v._. Gay, 169 U.S.
264, 270 (1898).

[216] 16 Stat. 544, 566; Rev. Stat § 2079.

[217] Ward _v._ Race Horse, 163 U.S. 504 (1896).

[218] Lone Wolf _v._ Hitchcock, 187 U.S. 553 (1903).

[219] Cherokee Nation _v._ Southern Kansas R. Co., 135 U.S. 641 (1890).

[220] The Cherokee Tobacco, 11 Wall. 616, 621 (1871).

[221] Choate _v._ Trapp, 224 U.S. 665, 677-678 (1912); Jones _v._
Meehan, 175 U.S. 1 (1899).

[222] For an effort to distinguish "treaties," "compacts," "agreements,"
"conventions," etc., _see_ Chief Justice Taney's opinion in Holmes _v._
Jennison, 14 Pet. 540, 570-572 (1840). Vattel is Taney's chief reliance.

[223] Story, Comm. § 1403. The President has the power in the absence of
legislation by Congress, to control the landing of foreign cables on the
shores of the United States, 22 Op. Atty. Gen. 13 and 408 (1898, 1899).

[224] Crandall, Treaties (2d ed.) Chap. VIII. _See also_ McClure,
International Executive Agreements (Columbia University Press, 1941),
Chaps. I and II.

[225] Crandall, 102; McClure, 49-50.

[226] Crandall, 104-106; McClure, 81-82.

[227] Tucker _v._ Alexandroff, 183 U.S. 424, 435 (1902).

[228] Ibid. 467. The first of these conventions, signed July 29, 1882,
had asserted its constitutionality in very positive terms. "The power to
make and enforce such a temporary convention respecting its own
territory is a necessary incident to every national government, and
adheres where the executive power is vested. Such conventions are not
treaties within the meaning of the Constitution, and, as treaties,
supreme law of the land, conclusive on the courts, but they are
provisional arrangements, rendered necessary by national differences
involving the faith of the nation and entitled to the respect of the
courts. They are not a casting of the national will into the firm and
permanent condition of law, and yet in some sort they are for the
occasion an expression of the will of the people through their political
organ, touching the matters affected; and to avoid unhappy collision
between the political and judicial branches of the government, both
which are in theory inseparably all one, such an expression to a
reasonable limit should be followed by the courts and not opposed,
though extending to the temporary restraint or modification of the
operation of existing statutes. Just as here, we think, this particular
convention respecting San Juan should be allowed to modify for the time
being the operation of the organic act of this Territory [Washington] so
far forth as to exclude to the extent demanded by the political branch
of the government of the United States, in the interest of peace, all
territorial interference for the government of that island." Wright, The
Control of American Foreign Relations, 239, quoting Watts _v._ United
States, 1 Wash. Terr., 288, 294 (1870).

[229] Quincy Wright, The Control of American Foreign Relations (New
York, 1922), 245.

[230] Crandall, 103-104.

[231] Ibid. 104.

[232] Willoughby, On the Constitution, I, 539.

[233] Wallace McClure, International Executive Agreements (Columbia
University Press, 1941), 98.

[234] Tyler Dennett, Roosevelt and the Russo-Japanese War (New York,
1925), 112-114.

[235] McClure, International Executive Agreements, 98-99.

[236] Ibid. 99-100.

[237] Willoughby, On the Constitution, I, 547.

[238] Wallace McClure, International Executive Agreements (Columbia
University Press, 1941), 97, 100.

[239] McClure, International Executive Agreements, 141.

[240] 301 U.S. 324 (1937).

[241] Ibid. 330-332.

[242] 315 U.S. 203 (1942).

[243] Ibid. 229-230. Citing The Federalist, No. 64.

[244] Ibid. 230. Citing Guaranty Trust Co. _v._ United States, 304 U.S.
126, 143 (1938).

[245] Ibid. 230-231. Citing Nielsen _v._ Johnson, 279 U.S. 47 (1929).

[246] Ibid. 231. Citing Santovincenzo _v._ Egan, 284 U.S. 30 (1931);
United States _v._ Belmont, 301 U.S. 324 (1937).

[247] Ibid. 233-234. Citing Oetjen _v._ Central Leather Co., 246 U.S.
297, 304 (1918).

[248] 315 U.S. at 228-234 _passim_. Chief Justice Stone and Justice
Roberts dissented, chiefly on the question of the interpretation of the
Litvinov Agreement, citing Guaranty Trust Co. _v._ United States, Note 3
above.

[249] McClure, p. 391.

[250] Ibid. 391-393; United States Department of State Bulletin,
September 7, 1940, pp. 199-200.

[251] McClure, 394-403; _cf._ The Constitution, article IV, section 3,
clause 2. When President John Adams signed a deed conveying property for
a legation to the Queen of Portugal, he was informed by his Attorney
General that only Congress was competent to grant away public property.
_See_ W.B. Bryan, A History of the National Capitol From Its Foundation
Through the Period of the Adoption of the Organic Act, I, 328-329; 1
American State Papers, Misc., 334. _See also_ Chief Justice Hughes, for
the Court, in Ashwander _v._ Tennessee Valley Authority, 297 U.S. 288,
330 (1936).

[252] 4 State Department Bulletin, April 12, 1941, pp. 443-447.

[253] What purports to be the correct text of these agreements was
published in the New York Times of March 11, 1947. The joint statement
by the United States, Great Britain, and France on arms aid for the
Middle East which was released by the White House on May 25, 1950 (_See_
A.P. dispatches of that date) bears the earmarks of an executive
agreement. And the same may be said of the following communique issued
by the North Atlantic Council at the close of its Sixth Session at
Brussels on December 19, 1950.

"The North Atlantic Council acting on recommendations of the Defense
Committee today completed the arrangements initiated in September last
for the establishment in Europe of an integrated force under centralized
control and command. This force is to be composed of contingents
contributed by the participating governments.

"The Council yesterday unanimously decided to ask the President of the
United States to make available General of the Army Dwight D. Eisenhower
to serve as Supreme Commander. Following receipt this morning of a
message from the President of the United States that he had made General
Eisenhower available, the Council appointed him. He will assume his
command and establish his headquarters in Europe early in the New Year.
He will have the authority to train the national units assigned to his
command and to organize them into an effective integrated defense force.
He will be supported by an international staff drawn from the nations
contributing to the force.

"The Council, desiring to simplify the structure of the North Atlantic
Treaty Organization in order to make it more effective, asked the
Council Deputies to initiate appropriate action. In this connection the
Defense Committee, meeting separately on December 18th, had already
taken action to establish a defense production board with greater powers
than those of the Military Production and Supply Board which it
supersedes. The new board is charged with expanding and accelerating
production and with furthering the mutual use of the industrial
capacities of the member nations.

"The Council also reached unanimous agreement regarding the part which
Germany might assume in the common defense. The German participation
would strengthen the defense of Europe without altering in any way the
purely defensive character of the North Atlantic Treaty Organization.
The Council invited the Governments of France, the United Kingdom and
the United States to explore the matter with the Government of the
German Federal Republic.

"The decisions taken and the measures contemplated have the sole purpose
of maintaining and consolidating peace. The North Atlantic nations are
determined to pursue this policy until peace is secure." Department of
State release to the press of December 19, 1950 (No. 1247).

[254] McClure, International Executive Agreements, 38; 1 Stat. 232-239;
reenacted in 1 Stat. 354, 366.

[255] McClure, 78-81; Crandall, 127-131.

[256] Crandall, 121-127.

[257] 48 Stat. 943. Section 802 of the Civil Aeronautics Act of 1938 (52
Stat. 973) "clearly anticipates the making of agreements with foreign
countries concerning civil aviation." 40 Op. Atty. Gen. 451, 452 (1946).

[258] 143 U.S. 649 (1892).

[259] Ibid. 694.

[260] 224 U.S. 583, 596 (1912).

[261] Ibid. 601.

[262] 55 Stat. 31. One specific donation was of a destroyer to the Queen
of Holland, a refugee at the time in Great Britain.

[263] 42 Stat. 363, 1325, 1326-1327; extended by 43 Stat. 763.

[264] _See_ Corwin, The President, Office and Powers (3d ed.) 264 and
notes.

[265] 48 Stat. 1182.

[266] McClure, 13-14.

[267] Ibid. 14.

[268] "There have been numerous instances in which the Senate has
approved treaties providing for the submission of specific matters to
arbitration, leaving it to the President to determine exactly the form
and scope of the matter to be arbitrated and to appoint the arbitrators.
Professor J.B. Moore, in the article to which reference has already been
made, enumerates thirty-nine instances in which provision has thus been
made for the settlement of pecuniary claims. Twenty of these were claims
against foreign governments, fourteen were claims against both
governments, and five against the United States alone." Willoughby, On
the Constitution, I, 543.

[269] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st
sess., 126.

[270] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st
sess., 158.

[271] United States _v._ Hartwell, 6 Wall. 385, 393 (1868).

[272] 7 Op. Atty. Gen. 168 (1855).

[273] It was so assumed by Senator William Maclay. _See_ Journal of
William Maclay (New York, 1890), 109-110.

[274] 5 Benton, Abridgment of the Debates of Congress, 90-91; 3 Letters
and Other Writings of James Madison (Philadelphia, 1867), 350-353,
360-371.

[275] 10 Stat. 619, 623.

[276] 7 Op. Atty. Gen. 220.

[277] 35 Stat. 672; _see also_ The act of March 1, 1893, 27 Stat. 497,
which purported to authorize the President to appoint ambassadors in
certain cases.

[278] 22 U.S.C. §§ 1-231.

[279] 11 Benton, Abridgement of the Debates of Congress, 221-222.

[280] S. Misc. Doc. 109, 50th Cong., 1st sess., 104.

[281] S. Rept. 227, 53d Cong., 2d sess., 25. At the outset of our
entrance into World War I President Wilson dispatched a mission to
"Petrograd," as it was then called, without nominating the Members of it
to the Senate. It was headed by Mr. Elihu Root, with "the rank of
ambassador," while some of his associates bore "the rank of envoy
extraordinary."

[282] _See_ George Frisbie Hoar, Autobiography, II, 48-51.

[283] Justice Brandeis, dissenting in Myers _v._ United States, 272 U.S.
52, 264-274 (1926).

[284] _See_ data in Corwin, The President, Office and Powers (3d ed.)
418. Congress has repeatedly designated individuals, sometimes by name,
more frequently by reference to a particular office, for the performance
of specified acts or for posts of a nongovernmental character; e.g., to
paint a picture (Jonathan Trumbull), to lay out a town, to act as
Regents of Smithsonian Institution, to be managers of Howard Institute,
to select a site for a post office or a prison, to restore the
manuscript of the Declaration of Independence, to erect a monument at
Yorktown, to erect a statue of Hamilton, and so on and so forth. 42
Harvard Law Review, 426, 430-431. In his message of April 13, 1822,
President Monroe stated the thesis that, "as a general principle, * * *
Congress have no right under the Constitution to impose any restraint by
law on the power granted to the President so as to prevent his making a
free selection of proper persons for these [newly created] offices from
the whole body of his fellow-citizens." Messages and Papers of the
Presidents, II, 698, 701. The statement is ambiguous, but its apparent
intention is to claim for the President unrestricted power in
determining who are proper persons to fill newly created offices.

[285] 19 Stat. 143, 169 (1876).

[286] In Ex parte Curtis, 106 U.S. 371 (1882), Chief Justice Waite
reviews early Congressional legislation regulative of conduct in office.
"The act now in question is one regulating in some particulars the
conduct of certain officers and employés of the United States. It rests
on the same principle as that originally passed in 1789 at the first
session of the first Congress, which makes it unlawful for certain
officers of the Treasury Department to engage in the business of trade
or commerce, or to own a sea vessel, or to purchase public lands or
other public property, or to be concerned in the purchase or disposal of
the public securities of a State, or of the United States (Rev. Stat.,
sect. 243); and that passed in 1791, which makes it an offence for a
clerk in the same department to carry on trade or business in the funds
or debts of the States or of the United States, or in any kind of public
property (id., sect. 244); and that passed in 1812, which makes is
unlawful for a judge appointed under the authority of the United States
to exercise the profession of counsel or attorney, or to be engaged in
the practice of the law (id., sect. 713); and that passed in 1853, which
prohibits every officer of the United States or person holding any place
of trust or profit, or discharging any official function under or in
connection with any executive department of the government of the United
States, or under the Senate or House of Representatives, from acting as
an agent or attorney for the prosecution of any claim against the United
States (id., sect. 5498); and that passed in 1863, prohibiting members
of Congress from practicing in the Court of Claims (id., sect. 1058);
and that passed in 1867, punishing, by dismissal from service, an
officer or employé of the government who requires or requests any
workingman in a navy-yard to contribute or pay any money for political
purposes (id., sect. 1546); and that passed in 1868, prohibiting members
of Congress from being interested in contracts with the United States
(id., sect. 3739); and another, passed in 1870, which provides that no
officer, clerk, or employé in the government of the United States shall
solicit contributions from other officers, clerks, or employés for a
gift to those in a superior official position, and that no officials or
[clerical superiors shall receive any gift or] present as a contribution
to them from persons in government employ getting a less salary than
themselves, and that no officer or clerk shall make a donation as a gift
or present to any official superior (id., sect. 1784). Many others of a
kindred character might be referred to, but these are enough to show
what has been the practice in the Legislative Department of the
Government from its organization, and, so far as we know, this is the
first time the constitutionality of such legislation has ever been
presented for judicial determination." Ibid. 372-373.

[287] 5 U.S.C. §§ 631-642.

[288] 54 Stat. 767, 771 (1940).

[289] 330 U.S. 75 (1947).

[290] 18 U.S.C. 611.

[291] _See_ Bills Listed in Index to Digest of Public General Bills,
79th Cong., 2d sess.

[292] 12 Fed Reg. 1935.

[293] Shoemaker _v._ Unite States, 147 U.S. 282, 301 (1893).

[294] United States _v._ Germaine, 99 U.S. 508 (1879) is the leading
case. For further citations _see_ Auffmordt _v._ Hedden, 137 U.S. 310,
327 (1890). The Court will, nevertheless, be astute to ascribe to a head
of department an appointment made by an inferior of such head. Nishimura
Ekiu _v._ United States, 142 U.S. 651, 663 (1892). For the view that
there is an intrinsic difference between a "public office" and a "public
employment" _see_ Mechem, Public Officers, pp. 3-5.

[295] Ex parte Hennen, 13 Pet. 230, 257-258 (1839); United States _v._
Germaine, 99 U.S. 508, 509 (1879). The statement on the point is in both
instances obiter.

[296] Ex parte Siebold, 100 U.S. 371, 397 (1880).

[297] "They [the clauses of the Constitution] seem to contemplate three
distinct operations: 1st. The nomination. This is the sole act of the
President, and is completely voluntary. 2d. The appointment. This is
also the act of the President, and is also a voluntary act, though it
can only be performed by and with the advice and consent of the Senate.
3d. The commission. To grant a commission to a person appointed, might,
perhaps, be deemed a duty enjoined by the constitution. 'He shall,' says
that instrument, 'commission all the officers of the United States.'"
Marbury _v._ Madison, 1 Cr. 137, 155-156 (1803). Marshall's statement
that the appointment "is the act of the President," conflicts with the
more generally held, and sensible view that when an appointment is made
with its consent, the Senate shares the appointing power. 1 Kent's Comm.
310; 2 Story Comm. § 1539; Ex parte Hennen, 13 Pet. 225, 259 (1839).

[298] 3 Op. Atty. Gen. 188 (1837).

[299] 2 Story Comms., § 1531; 5 Writings of Jefferson (Ford, ed.), 161
(1790); 9 Writings of Madison (Hunt, ed.), 111-113 (1822).

[300] 286 U.S. 6 (1932).

[301] Corwin, The President, Office and Powers (3d ed.), 92.

[302] Marbury _v._ Madison, 1 Cr. 137, 157-158, 182 (1803).

[303] 12 Op. Atty. Gen. 306 (1867).

[304] It should be remembered that, for various reasons, Marbury got
neither commission nor office. The case assumes, in fact, the necessity
of possession of his commission by the appointee.

[305] Opins. Atty. Gen. 631 (1823); 2 ibid. 525 (1832); 3 ibid. 673
(1841); 4 ibid. 523 (1846); 10 ibid. 356 (1862); 11 ibid. 179 (1865); 12
ibid. 32 (1866); 12 ibid. 455 (1868); 14 ibid. 563 (1875); 15 ibid. 207
(1877); 16 ibid. 523 (1880); 18 ibid. 28 (1884); 19 ibid. 261 (1889); 26
ibid. 234 (1907); 30 ibid. 314 (1914); 33 ibid. 20 (1921). In 4 Opins.
Atty. Gen. 361, 363 (1845), the general doctrine was held not to apply
to a yet unfilled office which was created during the previous session
of Congress, but this distinction is rejected in 12 ibid. 455 (1868); 18
ibid. 28; and 19 ibid. 261.

[306] 23 Opins. Atty. Gen. 599 (1901); 22 ibid. 82 (1898). A "recess"
may, however, be merely "constructive," as when a regular session
succeeds immediately upon a special session. It was this kind of
situation that gave rise to the once famous _Crum_ incident. _See_
Willoughby, III, 1508-1509.

[307] 5 U.S.C. § 56.

[308] 6 Opins. Atty. Gen. 358 (1854); 12 ibid. 41 (1866); 25 ibid. 259
(1904); 28 ibid. 95 (1909).

[309] 272 U.S. 52.

[310] 19 Stat. 78, 80.

[311] 272 U.S. 163-164.

[312] The reticence of the Constitution respecting removal left room for
four possibilities, _first_, the one suggested by the common law
doctrine of "estate in office," from which the conclusion followed that
the impeachment power was the only power of removal intended by the
Constitution; _second_, that the power of removal was an incident of the
power of appointment and hence belonged, at any rate in the absence of
legal or other provision to the contrary, to the appointing authority;
_third_, that Congress could, by virtue of its power "to make all laws
which shall be necessary and proper," etc., determine the location of
the removal of power; _fourth_, that the President by virtue of his
"executive power" and his duty "to take care that the laws be faithfully
executed," possesses the power of removal over all officers of the
United States except judges. In the course of the debate on the act to
establish a Department of Foreign Affairs (later changed to Department
of State) all of these views were put forward, with the final result
that a clause was incorporated in the measure which implied, as pointed
out above, that the head of the department would be removable by the
President at his discretion. Contemporaneously and indeed until after
the Civil War, this action by Congress, in other words "the decision of
1789," was interpreted as establishing "a practical construction of the
Constitution" with respect to executive officers appointed without
stated terms. However, in the dominant opinion of those best authorized
to speak on the subject, the "correct interpretation" of the
Constitution was that the power of removal was always an incident of the
power of appointment, and that therefore in the case of officers
appointed by the President with the advice and consent of the Senate the
removal power was exercisable by the President only with the advice and
consent of the Senate. _See_ Hamilton in the Federalist No. 77; 1 Kent's
Comm. 310; 2 Story Comm. §§ 1539 and 1544; Ex parte Hennen, 13 Pet. 225,
258-259 (1839). The doctrine of estate in office was countenanced by
Chief Justice Marshall in his opinion in Marbury _v._ Madison, 1 Cr.
137, 162-165 (1803), but has long been rejected. _See_ Crenshaw _v._
United States, 134 U.S. 99, 108 (1890). The three remaining views are
treated by the Chief Justice, at some cost in terms of logic as well as
of history, as grist to his mill.

[313] 272 U.S. at 134.

[314] Annals of Congress, cols. 635-636.

[315] 295 U.S. 602 (1935). The case is also styled Rathbun, Executor
_v._ United States, Humphrey having, like Myers before him, died in the
course of his suit for salary.

[316] 295 U.S. at. 627-629, 631-632. Justice Sutherland's statement,
quoted above, that a Federal Trade Commissioner "occupies no place in
the executive department" (_See also_ to the same effect p. 630 of the
opinion) was not necessary to the decision of the case, was altogether
out of line with the same Justice's reasoning in Springer _v._
Philippine Islands, 277 U.S. 189, 201-202 (1928), and seems later to
have caused the author of it much perplexity. _See_ Robert E. Cushman,
The Independent Regulatory Commissions (Oxford University Press, 1941),
447-448. As Professor Cushman adds: "Every officer and agency created by
Congress to carry laws into effect is an arm of Congress. * * * The term
may be a synonym; it is not an argument." Ibid. 451.

[317] United States _v._ Perkins, 116 U.S. 483 (1886).

[318] Parsons _v._ United States, 167 U.S. 324 (1897).

[319] Shurtleff _v._ United States, 189 U.S. 311 (1903).

[320] Blake _v._ United States, 103 U.S. 227 (1881); Quackenbush _v._
United States, 177 U.S. 20 (1900); Wallace _v._ United States, 257 U.S.
541 (1922).

[321] Morgan _v._ TVA, 28 F. Supp. 732 (1939), certiorari refused March
17, 1941. 312 U.S. 701, 702.

[322] _See_ United Public Workers _v._ Mitchell, 330 U.S. 75 (1947);
_also_ Ex parte Curtis, 106 U.S. 371 (1882); and 39 Op. Atty. Gen. 145
(1938).

[323] 6 Op. Atty. Gen. 220 (1853); In re Neagle, 135 U.S. 1 (1890).

[324] United States _v._ Lovett, 328 U.S. 303 (1946).

[325] Messages and Papers of the Presidents, II, 847 (January 10, 1825).

[326] _See_ 328 U.S. at 313.

[327] In this connection the following colloquy between Attorney General
Lincoln and the Court in course of the proceedings in Marbury _v._
Madison is of first importance: "Mr. Lincoln, attorney-general, having
been summoned, and now called, objected to answering. * * * On the one
hand he respected the jurisdiction of this court, and on the other he
felt himself bound to maintain the rights of the executive. He was
acting as secretary of state at the time when this transaction happened.
He was of opinion, and his opinion was supported by that of others whom
he highly respected, that he was not bound, and ought not to answer, as
to any facts which came officially to his knowledge while acting as
secretary of state. He did not think himself bound to disclose his
official transactions while acting as secretary of state; * * * The
court said, that if Mr. Lincoln wished time to consider what answers he
should make, they would give him time; but they had no doubt he ought to
answer. There was nothing confidential required to be disclosed. If
there had been he was not obliged to answer it; and if he thought that
any thing was communicated to him in confidence he was not bound to
disclose it; * * *" 1 Cr. 137, 143-145 (1803).

[328] The following letter, dated April 30, 1941, from Attorney General
Jackson to Hon. Carl Vinson, Chairman of the House Committee on Naval
Affairs is of interest in this connection: "My Dear Mr. Vinson: I have
your letter of April 23, requesting that your committee be furnished
with all Federal Bureau of Investigation reports since June 1939,
together with all future reports, memoranda, and correspondence of the
Federal Bureau of Investigation, or the Department of Justice, in
connection with 'investigations made by the Department of Justice
arising out of strikes, subversive activities in connection with labor
disputes, or labor disturbances of any kind in industrial establishments
which have naval contracts, either as prime contractors or
subcontractors.' Your request to be furnished reports of the Federal
Bureau of Investigation is one of the many made by congressional
committees. I have on my desk at this time two other such requests for
access to Federal Bureau of Investigation files. The number of these
requests would alone make compliance impracticable, particularly where
the requests are of so comprehensive a character as those contained in
your letter. In view of the increasing frequency of these requests, I
desire to restate our policy at some length, together with the reasons
which require it. It is the position of this Department, restated now
with the approval of and at the direction of the President, that all
investigative reports are confidential documents of the executive
department of the Government, to aid in the duty laid upon the President
by the Constitution to 'take care that the laws be faithfully executed,'
and that congressional or public access to them would not be in the
public interest.

"Disclosure of the reports could not do otherwise than seriously
prejudice law enforcement. Counsel for a defendant or prospective
defendant, could have no greater help than to know how much or how
little information the Government has, and what witnesses or sources of
information it can rely upon. This is exactly what these reports are
intended to contain. * * *

"In concluding that the public interest does not permit general access
to Federal Bureau of Investigation reports for information by the many
congressional committees who from time to time ask it, I am following
the conclusions reached by a long line of distinguished predecessors in
this office who have uniformly taken the same view. Example of this are
to be found in the following letters, among others:

"Letter of Attorney General Knox to the Speaker of the House, dated
April 27, 1904, declining to comply with a resolution of the House
requesting the Attorney General to furnish the House with all papers and
documents and other information concerning the investigation of the
Northern Securities case.

"Letter of Attorney General Bonaparte to the Speaker of the House, dated
April 13, 1908, declining to comply with a resolution of the House
requesting the Attorney General to furnish to the House information
concerning the investigation of certain corporations engaged in the
manufacture of wood pulp or print paper.

"Letter of Attorney General Wickersham to the Speaker of the House,
dated March 18, 1912, declining to comply with a resolution of the House
directing the Attorney General to furnish to the House information
concerning an investigation of the smelter trust.

"Letter of Attorney General McReynolds to the Secretary to the
President, dated August 28, 1914, stating that it would be incompatible
with the public interest to send to the Senate in response to its
resolution, reports made to the Attorney General by his associates
regarding violations of law by the Standard Oil Co.

"Letter of Attorney General Gregory to the President of the Senate,
dated February 23, 1915, declining to comply with a resolution of the
Senate requesting the Attorney General to report to the Senate his
findings and conclusions in the investigation of the smelting industry.

"Letter of Attorney General Sargent to the chairman of the House
Judiciary Committee, dated June 8, 1926, declining to comply with his
request to turn over to the committee all papers in the files of the
Department relating to the merger of certain oil companies. * * *

"This discretion in the executive branch has been upheld and respected
by the judiciary. The courts have repeatedly held that they will not and
cannot require the executive to produce such papers when in the opinion
of the executive their production is contrary to the public interests.
The courts have also held that the question whether the production of
the papers would be against the public interest is one for the executive
and not for the courts to determine." Mr. Jackson cites Marbury _v._
Madison, 1 Cr. 137, 169 (1803); and more than a dozen other cases,
federal and State, most of which involved "privileged communications" in
ordinary court proceedings. The doctrine of the equality of the three
departments is also invoked by him.--10 Op. Atty. Gen. 45.

[329] _See_ Norman J. Small, Some Presidential Interpretations of the
Presidency (Johns Hopkins Press, 1932); Henry C. Black, The Relation of
the Executive Power to Legislation (Princeton, 1919); W.E. Binkley, The
President and Congress (New York, 1947); Edward S. Corwin, The
President, Office and Powers (3d ed., 1948), Chaps. I and VII, _passim_.

[330] The first Harrison, Polk, Taylor, and Fillmore all fathered
sentiments to this general effect. _See_ Messages and Papers of the
President, IV, 1864; V, 2493; VI, 2513-2519, 2561-2562, 2608, 2615.

[331] Note 1, above. [Transcriber's Note: Reference is to Footnote 329,
above.]

[332] Charles Warren, Presidential Declarations of Independence, 10
Boston University Law Review, No. 1 (January, 1930); Willoughby, On the
Constitution, III, 1488-1492.

[333] 7 Op. Atty. Gen. 186, 209 (1855).

[334] 5 Moore, International Law Digest, 15-19.

[335] 4 Ibid. 473-548; 5 Ibid. 19-32.

[336] Opinion on the Question Whether the Senate Has the Right to
Negative the Grade of Persons Appointed by the Executive to Fill Foreign
Missions, April 24, 1790; Padover, The Complete Jefferson (New York,
1943), 138.

[337] 4 Moore, International Law Digest, 680-681.

[338] This measure, amended by the act of March 4, 1909 (35 Stat. 1088),
is now 18 U.S.C.A. § 953.

[339] _See_ Memorandum on the History and Scope of the Laws Prohibiting
Correspondence with a Foreign Government, S. Doc. 696, 64th Cong., 2d
sess., (1917). The author was Mr. Charles Warren, then Assistant
Attorney General. Further details concerning the observance of the
"Logan" Act are given in Corwin, The President, Office and Powers (3d
ed.) 223-224, 469-470. Early in October, 1950 President Harold Stassen
of the University of Pennsylvania announced that he had written Premier
Stalin offering to confer with him respecting issues between the two
governments.

[340] Benton Abridgment of the Debates of Congress, 466-467.

[341] S. Doc. 56, 54th Cong., 2d sess., (1897).

[342] The Federalist, containing the Letters of Pacificus and Helvidius
(New ed., 1852) 444; _see also_ p. 493, n. 1. [Transcriber's Note:
Reference is to Footnote 344, below.]

[343] The Federalist No. 69, where he wrote: "The president is also to
be authorized to receive ambassadors, and other public ministers. This,
though it has been a rich theme of declamation, is more a matter of
dignity than of authority. It is a circumstance which will be without
consequence in the administration of the government; and it was far more
convenient that it should be arranged in this manner, than that there
should be a necessity of convening the legislature, or one of its
branches, upon every arrival of a foreign minister; though it were
merely to take the place of a departed predecessor." Ibid. 518.

[344] "Letters of Pacificus," 7 Works (Hamilton ed.) 76, 82-83.

[345] Moore, International Law Digest, IV, 680-681.

[346] The Federalist containing the Letters of Pacificus and Helvidius
(New ed. 1852) 445-446.

[347] Moore, International Law Digest, I, 243-244. The course of the
Monroe Administration in inviting the cooperation of Congress in
connection with recognition of the Spanish-American Republics, although
it was prompted mainly by the consideration that war with Spain might
result, was nonetheless opposed by Secretary of State John Quincy Adams.
"Instead," said he, "of admitting the Senate or House of Representatives
to any share in the act of recognition, I would expressly avoid that
form of doing it which would require the concurrence of those bodies. It
was I had no doubt, by our Constitution an act of the Executive
authority. General Washington had exercised it in recognizing the French
Republic by the reception of Mr. Genet. Mr. Madison had exercised it by
declining several years to receive, and by finally receiving, Mr. Onis;
and in this instance I thought the Executive ought carefully to preserve
entire the authority given him by the Constitution, and not weaken it by
setting the precedent of making either House of Congress a party to an
act which it was his exclusive right and duty to perform. Mr. Crawford
said he did not think there was anything in the objection to sending a
minister on the score of national dignity, and that there was a
difference between the recognition of a change of government in a nation
already acknowledged as sovereign, and the recognition of a new nation
itself. He did not, however, deny, but admitted, that the recognition
was strictly within the powers of the Executive alone, and I did not
press the discussion further.'" Ibid., 244-245; citing Memoirs of John
Quincy Adams, IV, 205-206.

[348] S. Doc. 56, 54th Cong., 2d sess., pp. 20-22.

[349] Said Senator Nelson of Minnesota: "The President has asked us to
give him the right to make war to expel the Spaniards from Cuba. He has
asked us to put that power in his hands; and when we are asked to grant
that power--the highest power given under the Constitution--we have the
right, the intrinsic right, vested in us by the Constitution, to say how
and under what conditions and with what allies that war-making power
shall be exercised." 31 Cong. Record, Pt. 4, p. 3984.

[350] _See_ in this connection a long list of resolutions or bills
originating in the House of Representatives appertaining to foreign
relations. H. Rept. 1569 ("Confidential"), 68th Cong., 2d sess.
(February 24, 1925).

[351] _See_ A Decade of American Foreign Policy, S. Doc. 123, 81st
Cong., 1st sess., p. 158.

[352] President Truman's Statement of June 28, 1950, A.P. release: "The
Security Council called upon all members of the United Nations to render
every assistance to the United Nations in the execution of this
resolution.

"In these circumstances I have ordered United States air and sea forces
to give the Korean Government troops cover and support.

"The attack upon Korea makes it plain beyond all doubt that communism
has passed beyond the use of subversion to conquer independent nations
and will now use armed invasion and war.

"It has defied the orders of the Security Council of the United Nations
issued to preserve international peace and security. In these
circumstances the occupation of Formosa by Communist forces would be a
direct threat to the security of the Pacific area and to United States
forces performing their lawful and necessary functions in that area.

"Accordingly I have ordered the Seventh Fleet to prevent any attack on
Formosa. As a corollary of this action I am calling upon the Chinese
Government on Formosa to cease all air and sea operations against the
mainland. The Seventh Fleet will see that this is done. The
determination of the future status of Formosa must await the restoration
of security in the Pacific, a peace settlement with Japan, or
consideration by the United Nations.

"I have also directed that United States forces in the Philippines be
strengthened and that military assistance to the Philippine Government
be accelerated.

"I have similarly directed acceleration in the furnishing of military
assistance to the forces of France and the associated states in
Indo-China and the dispatch of a military mission to provide close
working relations with those forces."

[353] Messages and Papers of the Presidents, XVII, (1914), 7934.

[354] 55 Stat. 31; 22 U.S.C. (1940), Supp. IV, §§ 411-413.

[355] James F. Green, The President's Control of Foreign Policy, Foreign
Policy Reports (April 1, 1939), 17-18; Corwin, The President, Office and
Powers (3d ed.), 224-235; 463-465, 473-474.

[356] 2 Pet. 253 (1829).

[357] Ibid. 308.

[358] 13 Pet. 415 (1839).

[359] Ibid. 420.

[360] Foster _v._ Neilson, supra.

[361] Williams _v._ Suffolk Ins. Co., 13 Pet. 415 (1839).

[362] United States _v._ Palmer, 3 Wheat. 610 (1818).

[363] Doe _v._ Braden, 16 How. 636, 657 (1853).

[364] Jones _v._ United States, 137 U.S. 202 (1890); Oetjen _v._ Central
Leather Co., 246 U.S. 297 (1918).

[365] In re Baiz, 135 U.S. 403 (1890).

[366] Neely _v._ Henkel, 180 U.S. 109 (1901).

[367] Terlinden _v._ Ames, 184 U.S. 270 (1902); Charlton _v._ Kelly, 229
U.S. 447 (1913).

[368] 333 U.S. 103 (1948).

[369] 49 U.S.C. § 601.

[370] Ibid. § 646.

[371] Chicago & S. Airlines _v._ Waterman S.S. Corp., 333 U.S. 103, 111
(1948). _See also_ Oetjen _v._ Central Leather Co., 246 U.S. 297 (1918);
Ricaud _v._ American Metal Co., 246 U.S. 304 (1918); and Compania
Espanola de Navegacion Maritima, S.A. _v._ The Navemar, 303 U.S. 68, 74
(1938). In this last case the Court declared: "The vessel of a friendly
government in its possession and service is a public vessel, even though
engaged in the carriage of merchandise for hire, and as such is immune
from suit in the courts of admiralty of the United States. * * * It is
open to a friendly government to assert that such is the public status
of the vessel and to claim her immunity from suit, either through
diplomatic channels or, if it chooses, as a claimant in the courts of
the United States. If the claim is recognized and allowed by the
executive branch of the government, it is then the duty of the courts to
release the vessel upon appropriate suggestion by the Attorney General
of the United States, or other officer acting under his direction. * * *
The foreign government is also entitled as of right upon a proper
showing, to appear in a pending suit, there to assert its claim to the
vessel, and to raise the jurisdictional question in its own name or that
of its accredited and recognized representative." Similarly, it has been
held that courts may not exercise their jurisdiction by the seizure and
detention of the property of a friendly sovereign, so as to embarrass
the executive arm of the government in conducting foreign relations. Ex
parte Republic of Peru, 318 U.S. 578 (1943).

[372] 335 U.S. 160 (1948).

[373] Ibid. 167, 170. Four Justices dissented, by Justice Black, who
said: "The Court * * * holds, as I understand its opinion, that the
Attorney General can deport him whether he is dangerous or not. The
effect of this holding is that any unnaturalized person, good or bad,
loyal or disloyal to this country, if he was a citizen of Germany before
coming here, can be summarily seized, interned and deported from the
United States by the Attorney General, and that no court of the United
States has any power whatever to review, modify, vacate, reverse, or in
any manner affect the Attorney General's deportation order. * * * I
think the idea that we are still at war with Germany in the sense
contemplated by the statute controlling here is a pure fiction.
Furthermore, I think there is no act of Congress which lends the
slightest basis to the claim that after hostilities with a foreign
country have ended the President or the Attorney General, one or both,
can deport aliens without a fair hearing reviewable in the courts. On
the contrary, when this very question came before Congress after World
War I in the interval between the Armistice and the conclusion of formal
peace with Germany, Congress unequivocally required that enemy aliens be
given a fair hearing before they could be deported." Ibid. 174-175. _See
also_ Woods _v._ Miller, 333 U.S. 138 (1948), where the continuation of
rent control under the Housing and Rent Act of 1947, enacted after the
termination of hostilities was unanimously held to be a valid exercise
of the war power, but the constitutional question raised was asserted to
be a proper one for the Court. Said Justice Jackson, in a concurring
opinion: "Particularly when the war power is invoked to do things to the
liberties of people, or to their property or economy that only
indirectly affect conduct of the war and do not relate to the management
of the war itself, the constitutional basis should be scrutinized with
care." Ibid. 146-147.

[374] 7 Op. Atty. Gen. 453, 464-465 (1855).

[375] 9 Stat. 102 (1846); 20 U.S.C. §§ 41 and 48.

[376] _Cf._ 2 Stat. 78. The provision has long since dropped out of the
statute book.

[377] Runkle _v._ United States, 122 U.S. 543 (1887).

[378] _Cf._ In re Chapman, 166 U.S. 661, 670-671 (1897), where it is
held that presumptions in favor of official action "preclude collateral
attack on the sentences of courts-martial." _See also_ United States
_v._ Fletcher, 148 U.S. 84, 88-89 (1893); and Bishop _v._ United States,
197 U.S. 334, 341-342 (1905); both of which in effect repudiate Runkle
_v._ United States.

[379] "The President, in the exercise of his executive powers under the
Constitution, may act through the head of the appropriate executive
department. The heads of departments are his authorized assistants in
the performance of his executive duties, and their official acts,
promulgated in the regular course of business, are presumptively his
acts." Wilcox _v._ Jackson ex dem McConnel, 13 Pet. 498, 513 (1839).
_See also_, United States _v._ Eliason, 16 Pet. 291 (1842); Williams
_v._ United States, 1 How. 290, 297 (1843); United States _v._ Jones, 18
How. 92, 95 (1856); United States _v._ Clarke (Confiscation Cases), 20
Wall. 92 (1874); United States _v._ Farden, 99 U.S. 10 (1879); Wolsey
_v._ Chapman, 101 U.S. 755 (1880).

[380] 1 How. 290 (1843).

[381] 3 Stat. 723 (1823).

[382] 1 How. at 297-298.

[383] "It is manifestly impossible for the President to execute every
duty, and every detail thereof, imposed upon him by the Congress. The
courts have recognized this and have further recognized that he usually
and properly acts through the several executive departments. Every
reasonable presumption of validity is to be indulged with respect to the
performance by the head of a department of a duty imposed upon the
President and executed by the department head ostensibly in behalf of
the President. Nevertheless, the authorities indicate that the President
cannot, without statutory authority, delegate a discretionary duty,
relieving himself of all responsibility, so that the duty when performed
will not be his act but wholly the act of another. Williams _v._ United
States, 1 How. 290, 297 (1843); Runkle _v._ United States, 122 U.S. 543,
557 (1887); United States _v._ Fletcher, 148 U.S. 84, 88 (1893); French
_v._ Weeks, 259 U.S. 326, 334 (1922)"; 38 Op. Atty. Gen. 457-459 (1936).

[384] 1 Annals of Congress, cols. 515-516.

[385] Ibid. cols. 635-636.

[386] 1 Cr. 137 (1803).

[387] Ibid. 165-166.

[388] Op. Atty. Gen. 624 (1823).

[389] Messages and Papers of the Presidents, III, 1288.

[390] Ibid. 1304.

[391] 12 Pet. 524 (1838).

[392] Ibid. 610.

[393] 272 U.S. 52 (1926); 295 U.S. 602 (1935).

[394] Bruce Wyman, The Principles of the Administrative Law Governing
the Relations of Public Officers (St. Paul, 1903), 231-232.

[395] United States _v._ Eliason, 16 Pet. 291, 301-302 (1842); Kurtz
_v._ Moffitt, 115 U.S. 487, 503 (1885); Smith _v._ Whitney, 116 U.S.
167, 180-181 (1886).

[396] 135 U.S. 1 (1890).

[397] Ibid. 64. The phrase "a law of the United States" came from the
act of March 2, 1833 (4 Stat. 632). However, in 28 U.S.C. 2241 (c) (2),
as it stands following the amendment of May 24, 1949, c. 139, the phrase
is replaced by the term an act of Congress, thereby eliminating the
basis of the holding in In re Neagle.

[398] 236 U.S. 459 (1915); Mason _v._ United States, 260 U.S. 545
(1923).

[399] Rev. Stat. § 5298; 50 U.S.C. § 202.

[400] 1 Stat. 264 (1792); 1 Stat. 424 (1795); 2 Stat. 443 (1807); 12
Stat. 281 (1861).

[401] 12 Wheat. 19 (1827).

[402] Ibid. 31-32.

[403] "Federal Aid in Domestic Disturbances," S. Doc. 209, 59th Cong., 2
sess., p. 51 (1907).

[404] Op. Atty. Gen. 466 (1854). By the Posse Comitatus Act of 1878 (20
Stat. 152) it was provided that "* * * it shall not be lawful to employ
any part of the Army of the United States, as a _posse comitatus_, or
otherwise, for the purpose of executing the laws, except in such cases
and under such circumstances as such employment of said force may be
expressly authorized by the Constitution or by act of Congress * * *"
The effect of this prohibition, however, was largely nullified by a
ruling of the Attorney General "that by Revised Statutes §§ 5298 and
5300, the military forces, under the direction of the President, could
be used to assist a marshal. 16 Op. Atty. Gen. 162." Bennett Milton
Rich, The Presidents and Civil Disorder (The Brookings Institution,
1941), 196 fn. 21.

[405] 12 Stat (App.) 1258.

[406] 212 U.S. 78 (1909).

[407] In re Debs, 158 U.S. 565 (1895).

[408] 212 U.S. at 84-85. _See also_ Sterling _v._ Constantin, 287 U.S.
378 (1932), which endorses Moyer _v._ Peabody, while emphasizing the
fact that it applies only to a condition of disorder.

[409] 158 U.S. at 584, 586. Some years earlier, in the United States
_v._ San Jacinto Tin Co., the Courts sustained the right of the Attorney
General and of his assistants to institute suits simply by virtue of
their general official powers. "If," the Court said, "the United States
in any particular case has a just cause for calling upon the judiciary
of the country, in any of its courts, for relief * * *" in the question
of appealing to them "must primarily be decided by the Attorney General
* * *" and if restrictions are to be placed upon the exercise of this
authority it is for Congress to enact them. 125 U.S. 273, 279 (1888).
_Cf._ Hayburn's case, 2 Dall. 409 (1792), in which the Court rejected
Attorney General Randolph's contention that he had the right _ex
officio_ to move for a writ of _mandamus_ ordering the United States
circuit court for Pennsylvania to put the Invalid Pension Act into
effect.

[410] 29 U.S.C. §§ 101-105; 47 Stat. 70 (1932).

[411] 330 U.S. 258. Here it was held that the Norris-LaGuardia Act did
not apply to a case brought by the government as operator, under the War
Labor Disputes Act of 1943, of a large proportion of the nation's soft
coal mines. In reaching this result Chief Justice Vinson invoked the
"rule that statutes which in general terms divest preexisting rights or
privileges will not be applied to the sovereign without express words to
that effect." Standing by itself these words would seem to save the Debs
case. But they do not stand by themselves, for the Chief Justice
presently added "that Congress, in passing the [Norris-LaGuardia] Act,
did not intend to permit the United States to continue to intervene by
injunction in purely private labor disputes. * * * where some public
interest was thought to have become involved," words which seem intended
to repudiate the Debs case. However, the Chief Justice goes on at once
to say, "* * * whether Congress so intended or not is a question
different from the one before us now." Ibid. 272, 278.

[412] Public Law 101, 80th Cong., 1st sess., §§ 206-210.

[413] _See_ Louis Stark in New York Times, February 4, 1949; Labor
Relations, Hearings before the Senate Committee on Labor and Public
Welfare on S. 249, 81st Cong., 1st sess., pp. 263, 285, 295, 905, 911;
Julius and Lillian Cohen, The Divine Rights of Presidents, 29 Nebraska
Law Review, p. 416, March 1950.

[414] 30 Op. Atty. Gen. 291, 292, 293.

[415] Durand _v._ Hollins, 4 Blatch. 451, 454 (1860).

[416] Published by World Peace Foundation (Boston, 1945) _See also_, for
the period 1811 to 1934, J. Reuben Clark's Memorandum as Solicitor of
the Department of State entitled Right to Protect Citizens in Foreign
Countries by Landing Forces (Government Printing Office, 1912, 1934).
The great majority of the landings were for "the simple protection of
American citizens in disturbed areas," and only about a third involved
belligerent action.

[417] 5 Moore, International Law Digest, 478-510, _passim_.

[418] A Decade of American Foreign Policy, S. Doc. 123, 81st Cong., 1st
Sess., p. 1347.

[419] _See_ Max Farrand, Records, II, 318-319.

[420] Youngstown Co. _v._ Sawyer, 343 U.S. 579 (1952).

[421] 17 Fed. Reg. 3139-3143.

"Whereas on December 16, 1950, I proclaimed the existence of a national
emergency which requires that the military, naval, air, and civilian
defenses of this country be strengthened as speedily as possible to the
end that we may be able to repel any and all threats against our
national security and to fulfill our responsibilities in the efforts
being made throughout the United Nations and otherwise to bring about a
lasting peace; and

"Whereas American fighting men and fighting men of other nations of the
United Nations are now engaged in deadly combat with the forces of
aggression in Korea, and forces of the United States are stationed
elsewhere overseas for the purpose of participating in the defense of
the Atlantic Community against aggression; and

"Whereas the weapons and other materials needed by our armed forces and
by those joined with us in the defense of the free world are produced to
a great extent in this country, and steel is an indispensable component
of substantially all of such weapons and materials; and

"Whereas steel is likewise indispensable to the carrying out of programs
of the Atomic Energy Commission of vital importance to our defense
efforts; and

"Whereas a continuing and uninterrupted supply of steel is also
indispensable to the maintenance of the economy of the United States,
upon which our military strength depends; and

"Whereas a controversy has arisen between certain companies in the
United States producing and fabricating steel and the elements thereof
and certain of their workers represented by the United Steel Workers of
America, CIO, regarding terms and conditions of employment; and

"Whereas the controversy has not been settled through the processes of
collective bargaining or through the efforts of the Government,
including those of the Wage Stabilization Board, to which the
controversy was referred on December 22, 1951, pursuant to Executive
Order No. 10233, and a strike has been called for 12:01 A.M., April 9,
1952; and

"Whereas a work stoppage would immediately jeopardize and imperil our
national defense and the defense of those joined with us in resisting
aggression, and would add to the continuing danger of our soldiers,
sailors, and airmen engaged in combat in the field; and

"Whereas in order to assure the continued availability of steel and
steel products during the existing emergency, it is necessary that the
United States take possession of and operate the plants, facilities, and
other property of the said companies as hereinafter provided:

"Now, Therefore, by virtue of the authority vested in me by the
Constitution and laws of the United States, and as President of the
United States and Commander in Chief of the armed forces of the United
States, it is hereby ordered as follows:

"1. The Secretary of Commerce is hereby authorized and directed to take
possession of all or such of the plants, facilities, and other property
of the companies named in the list attached hereto, or any part thereof,
as he may deem necessary in the interests of national defense; and to
operate or to arrange for the operation thereof and to do all things
necessary for, or incidental to, such operation.

"2. In carrying out this order the Secretary of Commerce may act through
or with the aid of such public or private instrumentalities or persons
as he may designate; and all Federal agencies shall cooperate with the
Secretary of Commerce to the fullest extent possible in carrying out the
purposes of this order.

"3. The Secretary of Commerce shall determine and prescribe terms and
conditions of employment under which the plants, facilities, and other
properties possession of which is taken pursuant to this order shall be
operate