The Montgomery advertiser., 1906-11-07

remember that those checks and balances yet remain. even if calling attention to the f faet be . somewhat oid-fashioned habit. ngnest respect for the Congress of the Inieeo states. and in a particular sense for no rne Congress which enacted the legislation should not prevent a careful and attentive inyestiEation of the questions Involved in zen in his own defenses. against serinus criminal charge. const,,u.,nr nse word a "commerce" as used in tn. preme co9rt has 1een ,S defined by the su- vs; ogden. wheaton iss, it " was pIeas s,ad ,s commerce. onr undoubtedly. is traffic. but 1t s scripes the commercial intercourse between nations. and parts of nations, in all its pranches' r,,san ,e and is regulated by prescribing rules TOT carrying on that intercourse" The power conferred upon Congress is to reru. iate this commercial intercourse and the unn,a vntryng on thereof among the states. and ana necessary means for delng that partic. omas,,nn a,ar ,thing; Does the legislation now in mercial intercourse among the states n- aoes It only regulate certain phases of the I1tefeourse m ,h between employer and empioye , IT IT tne latter is all. even though this leg,sz la.ions IS associated in the same Act with other provisions which do regulate com 1ebe'an |. be intercourse among the states. can u pc maintained as constitutional? It is el- ementary that one provision in any Act ma may be constitutional and another uncon- fall if they be separated. as here they easir ly can be. as between section 10 and the other clauses of the Act So that section 10 10 % might fall and the remaining portions or or the Act of June l. 1898. be constitu- tlonai It is true it has been 1udicialiy de .e,I,n. .esmined that Congress has the power In outles upon carriers which have reference 10 the safety of employees while actually comh c1seharging duties pertaining to interstate and property. but 1t can bardly be fairly eontended that the provisions of Section 10 have any such purpose in view Those pro employees while actually discharging duties pertaining to interstate commerce. but to in the mater of making and enforcing con. tracts for hiring them forbids discrimina- dlons a against them on that ground. In heed we cannot, and we certainly should not shut our eyes to the fact (which is clear enough upon the face of the section as well as otherwise) that the essential purposes of the enactment was not to reg. ulate commercial intercourse among the states. but was to prevent. generally, dis labor in one state alone as well as in more than one We cannot too strongly empha- be anS % ea9s to m h fairly doubt it) then the question Is set tied for whatever the States might do in such matters through their own legislatures the constitution of the United States does not confer upon congress by any express lansuage nor by any fair implication from
 
 wants are employed, to prevent discrimi- nations against union labor. either in Ken lucky alone or in several states even if the hirer at the time does happen to be en- gagged in interstate traffic. Such Iegfs- lation for such a purpose cannot be suppos- cd to have been in the contemplation of the framers of the Constitution The legis- ation to prevent discrimination against union labor, in respect to employing retain ser wants. therefore. is not. in the opinion of the court regulation of commerce, and certainly it is no: regulation of commer- cial intercourse among the States" within the meaning of the Constitution, and yet the regulation of that one thing, namely the matter of discrimination against mem bers of labor unions in respect to the em- ployment and retention of servants. is the clear and only purpose of Section 10. Look ing squarely at the language of the section this would seem to be the only conclusion that is possible.
 Viewing the matter from another and somewhat narrower standpoint. we find an other most cogent objection to Section 10 of the Act. In the Trade-Mark Cases, 100 U S. at page 96. MT. Justice Miller, speaking for the court. said:
 "Governed by this view of our duty, we proceed to remark that glance at the commerce clause of the constitution discloses at once what has been often the subject of comment in this court and out of it. that the power of regulation there confer- red on Congress is limited to commerce with foreign nations. commerce among the States. and commerce with the Indian tribes. While bearing in mind the liberal construction that commerce with foreign