The sun. [volume] (New York [N.Y.]) 1833-1916, 1909-05-04
Another Enterprise OF Rooseveltism
Hated by the Supreme Court.

Another Enterprise OF Rooseveitisn
Hated by the Supreme Court.
Until the exact text Of the opinion
rendered in the ~so-called commodities
case is accessible it will be difficult tc
measure fully its scope or determine
its exact place in the constitutional evo.
luton of our Government. This much
however, is clear: 1t leaves unanswered
the greats Interrogation of the lotter,
cases, II gives NJ countenance to thu
Rooseveltian theory Of the Constitution
thatsthe commerce clause can be per
: vsrted to effect governmental object'
N&56k are otherwise not admittedly
Adthin the province. of the Federal Gov
s1xznent. The Supreme Court has in tn,
dseision safely steered between Soyil;
.sAad Charybdjs. What it has failed t.
decide is as significant as its affirmative,
rulings. 1t avoids on the one hand any
such assertion of Federal power as coulc
eonceivably work a destruction of STATE
: fights by the indirect effect of the com
Sfzerce power. On the other hand, il
Declines to crib, cabin and confine tina,
power within the limitation that it's just
exercise shall not directly or indirectly
affect property rights, created or sc,
cured under State authority. 1t is Ger.
tain that the Rooseveltian vagaries
like the child labor legislation, can
find IN c~ountenance in the decision. II
narrows the power Of Federal regulation
to such cases as can show some legiti-
mate and necessary connection with
interstate commerce.
EDMUND BURKE once said that the
great contests in England over constitu-
tional principles turned in general on
questions Of taxation, and this was also
true Of our own country at its begin
ming. 6incethe railroad and the steam
boat have anmhilated distance and for
many economic purposes obliterated
S.ats lines, the irrepressible conflict be-
tween centralized power and home rale
has turned far more upon the commerce
clause of the Constitution than upon its
powers owe taxation. From the time
when the Supreme Court rendered in
1924 its momentous decision in GIBBONS
RS. OGDEN each decision Of that great
tribunal has witnessed a renewal OF the
conflict between those who sought tn
retain for the States their former meas
ure Of control owe commercial inter-
course and those who contended for the
expansion of Federal power with refer
anna D., 3rnIa nrI 1,r,p,ar,1 Til,
continuous conflict for more than three
quarters of a century has, like most pro-
longedcontests, Witnessed some fluctua-
tons in the tide of battle, but with some
minor ebb and flow that tide has increas-
ingly set in favor of the advocates OF
Federal supremacy.
In the lottery case the important ques-
ton involved was whether the power
TO regulate interstate and foreign com
meroc included a right to prohibit such
commerce, and il So with what limita-
tons. 1t was argued three times before
tic Supreme Court of the United States
by distinguished counsel. The Sup
preston OF the mischief of lotteries
was largely lost sight of IN the graver
question as to whether Congress could
prohibit in its discretion any form Of
interstate traffic. In this aspect the case
assumed exceptional political import
ance, for it-conld not be ignored that II
Congress had the right to prohibit any
form OF interstate commerce it had in
cidentally the right to permit interstate
-Soadraeroe upon such conditions as it
might think proper, and as steam and
electricity had brought into the most
intimate and vital connection with in
terstate commerce nearly every detail
Of all domestic commerce, it was appar-
ent that if Congress could prohibit any
citizen or corporation from engaging
in interstate commerce except under the
conditions which it might impose, il
would possess to an extent Heretofore
undreamed Of an indirect but most po-
tent power over all the commercial ac-
tivitiee, for al Mr.. Justice JOHNSON In
his concurring opinion in GIBBONS %.
OGDEN we'll said, transportation is as
inseparable from commerce "as vital
tuS'iOi 10 iiOui Nltdl cAlelSuCt.
In view Of the immense Importance of
the lottery case it is not surprising that
the Supreme Court paused for nearly
two years before it reached its final
decision, and then only reached its son.
olusion by an almost equal division OF
the court. During the period Of uncer-
,ainty which preceded the decision the
case assumed political Importance, as
the contention of the Government was
the foundation upon which the Admin
istration sought TO build up a Federal
power to reach ~monopoliee in produc-
ton, which under the decision in the
first sugar trust case had been held to
be beyond Federal power. In the lot
tefy case the Supreme Court, while
sustaining in all other respects the
contention Of the Government and
while holding that the power to regu-
late interstate commerce included a
right to prohibit such forms Of inter-
state commerce as were immoral in
-thetr character, yet declined to express