59TH CONGRESS,} 59TH CONGRESS, HOUSE OF REPRESENTATIVES. (REP'T 6708 PART TO LIMIT THE EFFECT OF THE REGULATION OF COMMERCE BETWEEN THE SEVERAL STATES AND TERRITORIES IN CERTAIN CASES. JANUARY 29, 1907.-Referred to the House Calendar and ordered to be printed. Mr. JENKINS, from the Committee on the Judiciary, submitted the following as the VIEWS OF THE MINORITY. [To accompany H. R. 13655.] A majority of the committee having reported that H. R. 13655 do pass, the undersigned respectfully submits views in opposition to the report of the committee. While I recognize the ability of my colleagues to pass upon the important question involved in this bill, I am compelled to differ with them as to its constitutionality. In my judgment, no more unconstitutional bill was ever attempted to be forced through Congress. I rest my case entirely upon the question of constitutionality. Experience demonstrates that we have reached a crisis in legislation, and the question is daily presented to Congress whether we shall in legislating regard the Constitution as present and binding or ignore it entirely, as having passed out of use. For one I believe it should be regarded and have its proper influence as the highest authority in the land, respected as an instrument adopted by the people for their protection, and a limitation upon the exercise of power dangerous to their liberties. The bill is unconstitutional as a surrender of power by Congress, and also unconstitutional in seeking to enforce a power it does not possess, to regulate private contracts and declare the effect of a contract to be entirely different to what the parties agree and intend. Congress can not annul or regulate private contracts not designed to restrain or regulate interstate commerce. The bill is unconstitutional as an attempt to confer upon one State the power to legislate against citizens of other States and property situated outside of its territorial jurisdiction. I never did believe, and can not be made to believe, that Congress can confer upon the State of Iowa authority to punish citizens in the State of Kentucky, For the bill provides that all persons engaged in the shipment of the prohibited liquor shall become subject to the operation and effect of HR-59-2-Vol 1-28 the laws of the excluding State. So that if a clerk in Kentucky is ordered to prepare a box of whisky for shipment to Iowa, without knowing where it was going or that he was doing anything in violation of the law, he would be subject to the law of the State of Iowa. Such is the language and effect of the bill. But the report of the committee brings before the House one great and important question of constitutional law; one that ought not to pass unnoticed. Important because of its effect upon constitutional rights, and important because of its effect upon the commerce of the nation. Can Congress transfer to the States any of its power over commerce? Has there not been an attempt upon the part of Congress to surrender its power over interstate commerce to the States? This question is one of great importance to the nation, and calls for a broad discussion. I believe the future of the nation is much involved. The proposition ought not to be discussed from a sentimental, sectional, factional standpoint, but in all of its bearings, as it involves the very foundation of government. As will be seen, Congress has legislated in this direction, and is asked to legislate further and surrender its power over commerce to the States. I will try to present the entire question. To a proper understanding of this very important subject there must be considered the dual system of government, the power and duty of Congress, the power of the States, the development of the commerce question by the Supreme Court of the United States, the law upon the subject generally, and the effect of such legislation. The power given Congress to regulate commerce must be respected and upheld. The police power of the States must also be respected and upheld, and the line of demarcation between the two rightly drawn. In order to show the intent, scope, and danger of the legislation referred to several distinct doctrines will have to be considered. First. The power of Congress. Second. The power of the States. Third. The paramount power of Congress. Fourth. The exclusive power of Congress. Fifth. The concurrent power of Congress. Seventh. The action of Congress. The power of Congress is to be found in section 8 of Article I of the Constitution of the United States, in these words: The Congress shall have power to regulate commerce with foreign nations and among the several States, and with the Indian tribes. In my humble opinion, the legislation referred to can not enlarge the power of the States. The danger lies in the fact that Congress is asked to declare again its willingness unconstitutionally to relieve itself of its constitutional duty to protect interstate commerce, and unconstitutionally to place interstate commerce under the control of the States, to undo all that was sought to be accomplished by the adoption of the Constitution, to destroy the uniformity of commercial regulations, to open the door to restrictive, hostile, and discriminating legislation, by one State against the products of the other States. This great question must not be discussed from the narrow standpoint of any one particular product, but must include reference to one of the great objects of forming the Constitution. As so aptly said. by Mr. Justice Field in his separate opinion in Bowman v. C. and N. W. Ry. Co. (125 U. S., 465): It is a matter of history that one of the great objects of the formation of the Constitution was to secure uniformity of commercial regulations and thus put an end to restrictive and hostile discriminations by one State against the products of other States and against their importation and sale. "It may be doubted," says Chief Justice Marshall, "whether any of the evils proceeding from the feebleness of the Federal Government contributed more to that great revolution which introduced the present system than the deep and general conviction that commerce ought to be regulated by Congress. It is not, therefore, matter of surprise that the grant should be as extensive as the mischief, and should comprehend all foreign commerce and all commerce among the States. To construe the power so as to impair its efficacy would tend to defeat an object, in the attainment of which the American Government took, and justly took, that strong interest which arose from a full conviction of its necessity.' (P. 508.) And in the same case, on page 484, the court said, quoting from Railroad Company v. Richmond (19 Wall., 584): The power to regulate commerce among the several States was vested in Congress in order to secure equality and freedom in commercial intercourse against discriminating State legislation. And on page 481 of the same opinion the court said, speaking of the subject of commerce, quoting from another of its decisions: It is of national importance that over that subject there should be but one regulating power. In speaking of the same constitutional provision, the late Mr. Justice Miller, in his valuable work on the Constitution, says: You would scarcely imagine, and I am sure you do not know, unless you have given some consideration to the subject, how very important is that little sentence in the Constitution. It was the want of any power to regulate commerce, as between the States themselves, and with foreign nations, which as much, and I am not sure but I am justified in saying more, than any one thing, forced the States to form the present Constitution in lieu of the Articles of Confederation under which they had won their freedom and established their independence. It is difficult now for us to fully appreciate how strong was the tendency to separate, to quarrel, and to bring their adverse interests into collision, which grew out of the want of any general power in the Federal Government, as it then existed. to control the commercial relations of the States with each other. (P. 433.) And on page 437, quoting from Hamilton, he says: The competitions of commerce would be another fruitful source of contention. The States less favorably circumstanced would be desirous of escaping from the disadvantages of local situation, and of sharing in the advantages of their more fortunate neighbors. Each State or separate confederacy would pursue a system of commercial polity peculiar to itself. This would occasion distinctions, preferences, and exclusions, which would beget discontent. The habits of intercourse, on the basis of equal privileges, to which we have been accustomed from the earliest settlement of the country, would give a keener edge to those causes of discontent than they would naturally have, independent of this circumstance. The opportunities which some States would have of rendering others tributary to them, by commercial regulations, would be impatiently submitted to by the tributary States. And, further, on page 438, he says, quoting from Hamilton: The interfering and unneighborly regulations of some States, contrary to the true spirit of the Union. have, in different instances, given just cause of umbrage and complaint to others: and it is to be feared that examples of this nature, if not restrained by a national control, would be multiplied and extended till they became not less serious sources of animosity and discord than injurious impediments to the intercourse between the different parts of the Confederacy. It will not do to omit what the Supreme Court has itself said on this very important subject. Mr. Justice Matthews, speaking for the court, said, in Bowman v. C. & N. W. Ry. Co., 125 U. S., 465–493: Can it be supposed that by omitting any express declarations on the subject Congress has intended to submit to the several States the decision of the question in each locality of what shall and what shall not be articles of traffic in the interstate commerce of the country? If so, it has left to each State, according to its own caprice and arbitrary will, to discriminate for or against every article grown, produced, manufactured, or sold in any State and sought to be introduced as an article of commerce into any other. If the State of Iowa may prohibit the importation of intoxicating liquors from all other States, it may also include tobacco or any other article the use or abuse of which it may deem deleterious. It may not choose, even, to be governed by considerations growing out of the health, comfort, or peace of the community Its policy may be directed to other ends. It may choose to establish a system directed to the promotion and benefit of its own agriculture, manufactures, or arts of any description, and prevent the introduction and sale within its limits of any or of all articles that it may select as coming into competition with those which it seeks to protect. The police power of the State would extend to such cases, as well as to those in which it was sought to legislate in behalf of the health, peace, and morals of the people. In view of the commercial anarchy and confusion that would result from the diverse exertions of power by the several States of the Union, it can not be supposed that the Constitution or Congress have intended to limit the freedom of commercial intercourse among the people of the several States. "It can not be too strongly insisted upon," said this court in Wabash, etc., Ry. Co. v. Illinois, 118 U. S., 557-572, "that the right of continuous transportation from one end of the country to the other is essential in modern times to that freedom of commerce from the restraints which the States might choose to impose upon it that the commerce clause was intended to secure." This clause giving to Congress the power to regulate commerce among the States and with foreign nations, as this court has said before, was among the most important of the subjects which prompted the formation of the Constitution. (Cook v. Pennsylvania, 97 U. S., 566-574; Brown v. Maryland, 12 Wheat., 419-446.) And it would be a very feeble and almost useless provision, but poorly adapted to secure the entire freedom of commerce among the States which was deemed essential to a more perfect union by the framers of the Constitution, if, at every stage of the transportation of goods and chattels through the country, a State within whose limits a part of the transportation must be done, could impose regulations concerning the price, compensation, or taxation or any other restrictive regulation interfering with and seriously embarrassing this com merce. I desire to take the matter up in order from the constitutional provision cited down to the present time, and I think enough will be found to confirm all objections urged against the legislation referred to and to prove that Congress has gone further than it ought to have done. The agitation for such legislation is brought about for the want of a strong public sentiment, the States being powerless to enforce the law of to-day. In other words, the law is adequate to remedy the evils complained of; but the law is not enforced, and a strong sentimental appeal has been made and is being made to Congress to aid the States, on the assumption that the Federal Government is standing in the way of reform, preventing the States from properly enforcing the law; that the States want to enforce the law, but can not because the Federal Government protects the shippers of interstate commerce. The legislation referred to is an attempt to extend the doctrine that Congress can surrender its power over interstate commerce, a power not to be found in the Constitution, and permit the States to regulate interstate commerce, a power not to be found in the Constitution. Congress has gone too far on this subject already. The people of the United States and students of constitutional history must preserve the Constitution and protect constitutional rights. Since the close of the civil war the Constitution of the United States seems to have been overlooked. I am opposed to all such unconstitutional legislation when I believe as I do that it can not increase the power of the State or suppress crime, will not deprive a citizen of any right he now enjoys, change the law, or accomplish any good. I am opposed to the doctrine that Congress can surrender to the States any of its power over interstate commerce. a power exclusive in Congress that can not be delegated or surrendered. I can not commit myself to the doctrine. of concurrent power, even when the proposed legislation is local. 1 am for the Union as it is, with its dual system of government, anxious to uphold the power of both States and nation within their respective sovereignty. The right and power of both are equally clear. I appreciate that it is pretty late in the day to oppose the doctrine of concurrent power and to contend for the exclusive power of Congress. And probably the doctrine of Cooley v. Board of Wardens (12 How., 299) will answer every purpose and serve both nation and States. There is, however, some very respectable support for my contention in this particular. When the commercial power was under discussion in the Constitutional Convention Mr. Madison said, in part: He was more and more convinced that the regulation of commerce was in its nature indivisible, and ought to be wholly under one authority. (3d Madison Papers, 1585.) Mr. Justice McLean said, in the Passenger cases (7 How., 283396): A concurrent power in the States to regulate commerce is an anomaly not found in the Constitution. If such power exist, it may be exercised independently of the Federal authority. A concurrent power excludes the idea of a dependent power. The General Government and a State exercise concurrent powers in taxing the people of the State. The objects of taxation may be the same, but the motives and policy of the tax are different and the powers are distinct and independent. A concurrent power in two distinct sovereignties to regulate the same thing is as inconsistent in principle as it is impracticable in action. It involves a moral and physical impossibility. A joint action is not supposed, and two independent wills can not do the same thing. The action of one, unless there be an arrangement, must necessarily precede the action of the other; and that which is first, being competent, must establish the rule. If the powers be equal, as must be the case, both being sovereign, one may undo what the other does, and this must be the result of their action. We have excellent authority to determine when the power is exclusive. This exclusive delegation, or rather this alienation, of State sovereignty, would only exist in three cases: Where the constitution in express terms granted an exclusive authority to the Union; where it granted in one instance an authority to the Union, and in another prohibited the States from exercising the like authority; and where it granted an authority to the Union, to which a similar authority in the States would be absolutely and totally contradictory and repugnant. (Hamilton, 32 Federalist.) I will call attention to the cases in the Supreme Court of the United States sustaining my contention, also marking the line of demarcation between the States and nation. Gibbons v. Ogden (9 Wheat., 1) contains an able and instructive opinion by Chief Justice Marshall, but as far as the question of power |