The sun. [volume] (New York [N.Y.]) 1833-1916, 1907-07-29

stock issues OF such Federal corporations as
the basis for computing rates. IL IL therefore
diffcult to perceive how tho commission
would be aided by the substitution Of Federal
for State ca capitalization. or be
thereby regulated. Consequently national
incorporation cannot be necessary. upon
that theory, as n regulation Of
nor. In the language Of the Supreme Court.
is IL plainly adapted" to such regulation.
We have assumed that the end ought by
the establishment OF "A Federal railroad sys-
tenn was really to regulate commerce; but
the text Of the Presidents speech shows that
the control Of interstate commerce In not
the principal object for this assertion Of
power. We are told that the Federal Gov
eminent will thus he able ito prevent any
man from plunderlng." This declaration
indicates that the result TO be attained IL In
no constitutional sense. to use the language
Of the supreme Court. Legitimate" though
It may be quite laudsble. No argument 10
required 20 prove that the remcdytng OF
common law offences against railroad prop
erty. with which the States are alone COM
petent % deal. would not present any legal
ground for creating a Federal system OF cor
porations. For such an exigency Chief JUS
tice Marshall has prepared VIC In the following
words: should Congress under the pretext
Of exercising It's powers pass laws for the
accomplishment OF objects not intrusted TO
the Government. 10 would become the pain
full duty Of this tribunal. should q case re-
curing such n decision come before IL. to
say that such an act was not the law OF the
land"
In scanning these Presidential PROPOSE
tions the radical vice underlying them may
be described as an Oblivion Of the spirit OF
the Constitution" That judicial expression
Is hest illustrated in the terms Of the pene-
trative logic with which Alexander Hamilton
has summarized the test Of Congressional
legislation: The propriety Of a law In q con-
stitutionsl sense must always be determined
10y the nature NJ the power on which 1t is
founded" In that one sentence Ia the key
note OF constitutional construction. To as
certain whether a proposed measure In q reau-
lation Of commerce. the legislator must CON-
slider the nature Of that power. He cannot
found the legislation upon some other Fed
eral power and attempt to utilize u as a
commercial regulation other wise the conven-
ton would be convicted Of ineptitude in ex-
pressing the several powers He cannot put
his hands into the residual power belon ging
to the States or The people. and pluck out
some integral faculty and employ II as the
basis for ADMINISTERING a distinct Federal
power. The spirit Of the Constitution con-
sists in fulfilling each Federal power accord
ing to the purposes for which IL was granted.
With this criterion Of our great pubiiois to
guide us. the Constit ution ceases to be a
diversion in scholastics and becomes the sub
Ject OF direct and reasonable understanding.
The word Property is not contained In the
Constitution. As no independent power over
property was conferred on the Federal Gov
eminent, the word itself is not entitled to any
substantive position In the organic instru-
ment. As a precaution against the invasion
II the rights Of property by the new govern
ment. II received a negative mention In the
Fifth Amendment, prohibiting such depriva-
ton without due process Of law. The pO-
litical control Of territory within the States
was carefully guarded. Not exceeding ten
miles square. as may by cession Gom par
ticular States become the seat Of government.
and all places purchased by the consent Of
the Legislatures for military and civic struc-
lures, shall he subject to exclusive lcgisla-
ton by Congress-.
This framework of the Constitution Illus
trates its spirit with reference to any attempt
at control Of property In the States by the
central authority. IL was to be a govern
ment Of special functions. TO he exercised
within the territory Of the States. except
when further control was specially given to
the general Government. In two instances
il may he said that specific powers over prop
erty we're so conferred. Copyrights and
patents a. qualified property, and the sub
icCt Of bankruptcies throughout the United
States. we're placed under Congressional
control. These provisions for certain and
definite legal relations toward property in
dictate the exclusion Of any other Federal
contact with its fundamental State relation.
They repel the establishment Of its dominion
over the persons and property employed In
commerce the ordinary legal attributes
Of such persons and of that property.
The relation OF these provinces OF authority
may be further illustrated by Q familiar
analogy drawn from the Federal judicial
| power. While the Federal courts have taken
constitutional Jurisdiction over patents and
! copyrights. they have studiously recog-
nized the limited scope Of that power. Patents
rs Inventions. their novelty and validity ~
patents, are adjudicated by the Federal
Judges. But when q contest arises con-
corning the ownership OF patents or copy
! rights as property. the Federal Jurisdiction
il lacking. and only the State courts. as sd-
illustrators OF common law. are competent
to pass upon the controversy. The snalogy
OF the foregoing to the inherent limitation
of Federal legislative power in respect to
! property is apparent. When the
power In exercised in respect TO trafic-to
the relations OF trafic to personalities and
Observation-Disclosures Is plenary; but In seek
ing to extend II TO the constituent or essential
relations OF person or property because they
are engaged in between the States
an effort is made to trespsss beyond It's
province.
The limitations of the power
may likewise be illustrated by reference to It's
relations to the taxing power. The United
States Is endowed with a broad and general
power over taxation. subject only to specified
qualifications. This is the converse Of the
absence OF Its general power over property.
Yet II Is established that the power TO regulate
interstate cannot be used by Con-
gress as n source of revenue. The subjects Of
the two powers are distinct. their purposes
are different. and II would be a per version OF
the taxing power to utilize II for the purpose
Of commerce re equation. not really for the ben
benefit of the Treasury. IL may be urged
, that the taxation of State bank currency at
the time of the establishment Of the national
banking system anita COMICS this contention:
but this utilization of the taxing power to
force the national bank notes into currency
was defended by invoking the war power
on the ground that credit was as necessary
AS cannon" Indeed. 1t would be dinicult to
Indicate any topic of authority which Is not
relevant to the inclusive and dominant
nature of the war power. But the Federal
regulation Of is not inclusive
OF the power OF taxation because its
object il not to provide for the existence
or support OF the Government. but TO facili-