# Hammer v. Dagenhart/Dissent Holmes

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* Dissenting Opinion Holmes
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* 312 U.S. 100
MR. JUSTICE HOLMES, dissenting.
The single question in this case is whether Congress has power to prohibit the shipment in interstate or foreign commerce of any product of a cotton mill situated in the United States in which, within thirty days before the removal of the product, children under fourteen have been employed or children between fourteen and sixteen have been employed more than eight hours in a day, or more than six days in any week, or between seven in the evening and six in the morning. The objection urged against the power is that the States have exclusive control over their methods of production, and that Congress cannot meddle with them, and, taking the proposition in the sense of direct intermeddling, I agree to it, and suppose that no one denies it. But if an act is within the powers specifically conferred upon Congress, it seems to me that it is not made any less constitutional because of the indirect effects that it may have, however obvious it may be that it will have those effects, and that we are not at liberty upon such grounds to hold it void.
The first step in my argument is to make plain what no one is likely to dispute — that the statute in question is within the power expressly given to Congress if considered only as to its immediate effects, and that, if invalid, it is so only upon some collateral ground. The statute confines itself to prohibiting the carriage of certain goods in interstate or foreign commerce. Congress is given power to regulate such commerce in unqualified terms. It would not be argued today that the power to regulate does not include the power to prohibit. Regulation means the prohibition of something, and when interstate [p278] commerce is the matter to be regulated, I cannot doubt that the regulation may prohibit any part of such commerce that Congress sees fit to forbid. At all events, it is established by the Lottery Case and others that have followed it that a law is not beyond the regulative power of Congress merely because it prohibits certain transportation out and out. Champion v. Ames, 188 U.S. 321, 355, 359, et seq. So I repeat that this statute, in its immediate operation, is clearly within the Congress' constitutional power.
The question, then, is narrowed to whether the exercise of its otherwise constitutional power by Congress can be pronounced unconstitutional because of its possible reaction upon the conduct of the States in a matter upon which I have admitted that they are free from direct control. I should have thought that that matter had been disposed of so fully as to leave no room for doubt. I should have thought that the most conspicuous decisions of this Court had made it clear that the power to regulate commerce and other constitutional powers could not be cut down or qualified by the fact that it might interfere with the carrying out of the domestic policy of any State.
The manufacture of oleomargarine is as much a matter of state regulation as the manufacture of cotton cloth. Congress levied a tax upon the compound when colored so as to resemble butter that was so great as obviously to prohibit the manufacture and sale. In a very elaborate discussion, the present Chief Justice excluded any inquiry into the purpose of an act which, apart from that purpose, was within the power of Congress. McCray v. United States, 195 U.S. 27. As to foreign commerce see Weber v. Freed, 239 U.S. 325, 329; Brolan v. United States, 236 U.S. 216, 217; Buttfield v. Stranahan, 192 U.S. 470. Fifty years ago, a tax on state banks the obvious purpose and actual effect of which was to drive them, or at least [p279] their circulation, out of existence was sustained although the result was one that Congress had no constitutional power to require. The Court made short work of the argument as to the purpose of the act. "The judicial cannot prescribe to the legislative department of the government limitations upon the exercise of its acknowledged powers." Veazie Bank v. Fenno, 8 Wall. 533. So it well might have been argued that the corporation tax was intended, under the guise of a revenue measure, to secure a control not otherwise belonging to Congress, but the tax was sustained, and the objection, so far as noticed, was disposed of by citing McCray v. United States. Flint v. Stone Tracy Co., 220 U.S. 107. And to come to cases upon interstate commerce, notwithstanding United States v. E. C. Knight Co., 156 U.S. 1, the Sherman Act has been made an instrument for the breaking up of combinations in restraint of trade and monopolies, using the power to regulate commerce as a foothold, but not proceeding because that commerce was the end actually in mind. The objection that the control of the States over production was interfered with was urged again and again, but always in vain. Standard Oil Co. v. United States, 221 U.S. 1, 68, 69. United States v. American Tobacco Co., 221 U.S. 106, 184. Hoke v. United States, 227 U.S. 308, 321, 322. See finally and especially Seven Cases of Eckman's Alterative v. United States, 239 U.S. 510, 514, 515. The Pure Food and Drug Act which was sustained in Hipolite Egg Co. v. United States, 220 U.S. 45, with the intimation that "no trade can be carried on between the States to which it [the power of Congress to regulate commerce] does not extend," 57, applies not merely to articles that the changing opinions of the time condemn as intrinsically harmful, but to others innocent in themselves, simply on the ground that the order for them was induced by a preliminary fraud. Weeks v. United States, 245 U.S. 618. It does not matter whether the supposed [p280] evil precedes or follows the transportation. It is enough that, in the opinion of Congress, the transportation encourages the evil. I may add that, in the cases on the so-called White Slave Act, it was established that the means adopted by Congress as convenient to the exercise of its power might have the character of police regulations. Hoke v. United States, 227 U.S. 308, 323. Caminetti v. United States, 242 U.S. 470, 492. In Clark Distilling Co. v. Western Maryland R. Co., 242 U.S. 311, 328, Leisy v. Hardin, 135 U.S. 100, 108, is quoted with seeming approval to the effect that
a subject matter which has been confided exclusively to Congress by the Constitution is not within the jurisdiction of the police power of the State unless placed there by congressional action. I see no reason for that proposition not applying here.
The notion that prohibition is any less prohibition when applied to things now thought evil I do not understand. But if there is any matter upon which civilized countries have agreed — far more unanimously than they have with regard to intoxicants and some other matters over which this country is now emotionally aroused — it is the evil of premature and excessive child labor. I should have thought that, if we were to introduce our own moral conceptions where in my opinion they do not belong, this was preeminently a case for upholding the exercise of all its powers by the United States.
But I had thought that the propriety of the exercise of a power admitted to exist in some cases was for the consideration of Congress alone, and that this Court always had disavowed the right to intrude its judgment upon questions of policy or morals. It is not for this Court to pronounce when prohibition is necessary to regulation — if it ever may be necessary — to say that it is permissible as against strong drink, but not as against the product of ruined lives. [p281]
The act does not meddle with anything belonging to the States. They may regulate their internal affairs and their domestic commerce as they like. But when they seek to send their products across the state line, they are no longer within their rights. If there were no Constitution and no Congress, their power to cross the line would depend upon their neighbors. Under the Constitution, such commerce belongs not to the States, but to Congress to regulate. It may carry out its views of public policy whatever indirect effect they may have upon the activities of the States. Instead of being encountered by a prohibitive tariff at her boundaries, the State encounters the public policy of the United States, which it is for Congress to express. The public policy of the United States is shaped with a view to the benefit of the nation as a whole. If, as has been the case within the memory of men still living, a State should take a different view of the propriety of sustaining a lottery from that which generally prevails, I cannot believe that the fact would require a different decision from that reached in Champion v. Ames. Yet, in that case, it would be said with quite as much force as in this that Congress was attempting to intermeddle with the State's domestic affairs. The national welfare, as understood by Congress, may require a different attitude within its sphere from that of some self-seeking State. It seems to me entirely constitutional for Congress to enforce its understanding by all the means at its command.
MR. JUSTICE McKENNA MR. JUSTICE BRANDEIS and MR. JUSTICE CLARKE concur in this opinion.