Evening star. [volume] (Washington, D.C.) 1854-1972, 1907-06-25

| merce is to be governed" These are the
words of Chief Justice Marshall in Glib
bonS VS.. Ogden.
This power of prescribing the rule by
which commerce Is to be conducted extends
to commerce Itself and to the instrumental
tiles of commerce. BY commerce itself,
mean the activities and intercourse which
constitute the commercial relation. BY the
instrumentalities of commerce, l mean the
animate and inanimate means used to
maintain and carry on commercial inter-
course.
As to these activities and intercourse
which constitute commerce. Congress has
from time to time prescribed certain rules:
such for instance as the rule that COM
merce shall be free from monopoly and re-
straint effected by combinations. and that
the general rule of competition shall have
freq play AS to the animate and mani
mate means or instrumentalities by which
commerce Is conducted Congress has like
wise prescribed various rules: such as con-
tained in the railroad safety appliance act
and the act prescribing the hours OF labor
of employees upon railroads engaged IN IN
terstate commerce.
Prohibition by Congress-
Congress has prohibited combinations in
restraint of interstate and foreign trade
and has prohibited the carriage of diseased
cattle, explosives and lottery tickets. and
Congress has prescribed that certain safety
appliances shall be used upon railroads DO
ing an Interstate business. The one class OF
laws Is designed to keep the channels OF
commerce free and unpoiiuted; the other -
designed to secure the safety OF the en-
pIoyes and patrons of the carriers.
1 cite these acts because their constitu-
tionality has been sustained, because they
obviously bear directly upon commerce. ana
for that reason will serve to make clear the
distinction between the wefl-established rule
to be deduced from the decided cases and
the extension Of the rule involved In certain
pending legislative propositions OF federal
control, to which shall now direct your at
tentfon.
The new proposition Is this: Congress has
the power to regulate commerce. including
its instrumenta'ities. and likewise power to
regulate the persons by whom articles OF
commerce are produced In respect to mat
tiers disconnected with commerce. This addf-
ton to the rule finds expression in the sug-
gestion to prohibit the interstate transporta-
ton of innocuous articles lawfully made or
produced in a state for reasons not affecting
interstate commerce.
Let us now consider whether the regula-
ton of the business of producing articles
which may In whole or In part go into inter-
state commerce by denying to the owner the
privilege of interstate commerce for reasons
not affecting such commerce Is regulation
of commerce. In other words. Is the mere
production o. goods commerce? If 1t is not,
then can Congress regulate such production
within state under the constitutional pow
er to regulate Interstate commerce?
Commerce Between States.
In my judgment. the power to regu-
late commerce between the states does
not carry with 1t the power to prohibit
commerce. unless the prohibition has for
its purpose the facilitation. safety or
protection of commercial intercourse or
the accomplishment of some other ma
tional purpose.
The power to regulate interstate COM
merce does not extend to the laying of
an arbitrary embargo upon the lawfully
produced, harmless products of state,
nor to the right to defeat the policy Of
| a state as to it's own internal affairs.
l concede that the national power to
regulate interstate commerce carries
with 1t the right to prohibit commerce
| in order to secure equality of commercial
right or to prevent restraint OF or In
| reference with commerce, but not to
prohibit the shipment of the innocuous
products of producers within a state who
are pursuing a course sanctioned by the
| laws of the state and in no wise in itself
| Interfering with interstate commerce. II
| prohibition of interstate trade Is within
the arbitrary power Of Congress 1t might
| be exercised so as to exclude the prod
ucts of particular states OF sections of
| the country. Congress then might pro-
| to promote the interests of wool Or corn.
/ There is no authority for any such
| proposition.
| The Power Of Congress.
Congress may employ such means as
1t chooses to accomplish that which is
within it's powers. But the end to be
| accomplished must be within the scope
| of it's constitutional powers. The legis-
| lative discretion extends to the means
| and not to the ends to be accomplished
| by use of the means
| In a word. do not take issue with the
proposition that Congress may prohibit
| transportation. but l say the prohibition
| must have for its end the regulation of
| interstate commerce and not something
| dehors the federal power.
| That the Congress OF the United States
| has no general legislative powers, but
| only such as are granted to 1t by the
| exploded notion.
| We cannot make progress in developing
| a body of substantive remedial law with
out an accurate appreciation Of the restric-
lions upon both the state and fedora
powers.
| Like the Girondists in the French revolu
| ton, American lawyers must submit to be
| condemned by the Bourbons as radicals II
| they stand for rational and constitutional
| legislation to meet new conditions and tG
| correct the evils in the old conditions. and
| to be guillotined by the reds as obstruc-
| tionists If they fail to indorse the popular
| vagarfes Of the political ephemera who
| swarm about every great movement Of re-
| form. unappreciative Of It's origin. its ten
| dency and its purpose. Such Is the fate
| o. the profession that stulies. loves and
| defends the institutions of civilized govern.
ment and has ever been their most powerful
constructive and conserving force.
| Preservation Of Constitution.
The preservation Of our Constitution ID