of Stephen J. Field of California, who surely must rank among the more fabulous personalities identified with the Court. If his last years on the Court were pathetic (like Grier, he had to be told to resign, but only after out-serving Marshall), his early career was impressive.
In 1864 came Taneys long expected deathhe was eighty-sevenand with it the appointment of Salmon P. Chase of Ohio as Chief Justice. Chase, a former member of the Senate and Lincolns Secretary of the Treasury, was a surprise appointment: He had not practiced actively for fourteen years, and generally was regarded (by himself, among others) as an aspirant for the Presidency; but he served, on the whole, quite notably.
Grants two appointees of 1870William Strong of Pennsylvania, and Joseph P. Bradley of New Jerseyare little remembered, and justifiably so. The former served for ten years, the latter for twenty-two; both were strong Union men, though Bradley occasionally took a narrow construction of the Fourteenth Amendment. Neither is there much to recall of Ward Hunt of New York, named to the court in 1873. He served actively for only four years, but then, the victim of a paralytic stroke, languished on the Court for five more years until Judge Davis, now a member of the Senate, sponsored a special retirement bill for him.
With the death of Chase in 1873, Morrison R. Waite, white-bearded, black-browed, succeeded to the office of Chief Justice. An Ohioan with no previous judicial experience and little reputation as a lawyer, he was hotly assailed then and has been coolly criticized by centralist historians ever since. But it was largely Waites remarkably firm hand that kept northern abolitionists from having their own way with the Fourteenth Amendment, and in time he was to write the Courts opinion in the Granger cases, sustainingfor a whilethe States police power in the field of rate-fixing on public-service corporations. Waite deserves better treatment than Court criticism has accorded him.
Waite was followed on the Court, in 1877, by John Marshall Harlan of Kentucky. He, too, had no previous judicial experience, but in his thirty-four years on the bench, he set a notable record. Then came William B. Woods of Georgia, in 1880, first Southerner on the Court since Campbell in 1852, but actually a transplanted Yankee: Like the abolitionist Stanley Matthews, whose nomination to the Court was barely confirmed in 1881, he had served in the Union army as an officer from Ohio. Then came Horace Gray, succeeding Clifford in 1881, long a member of the Supreme Judicial Court of Massachusetts, a stern martinet of a man, six feet four inches tall, strict and punctilious, a believer in strong national government.(210)
Last of the judges of 1868-88 were Samuel Blatchford of New York, who came on the bench in 1882 with fifteen years experience behind him as a Federal judge specializing in maritime and patent law,(211) and the black-bearded Mississippian with the lovely rolling name of Lucius Quintus Cincinnatus Lamar.
These seventeen men sat on the bench in a period in which State sovereignty was supposed to have been killed off. But was a national supremacy broadly asserted by the Court or conceded by the States? Precisely the reverse was true.
It is notable, in this regard, that in the period of sixty-four years, from Marshalls ruling in McCulloch vs. Maryland in 1803 [see note], to the Courts opinion in Ex Parte Garland in 1867, only four acts of Congress were held unconstitutional.(212) But in the brief span of four years, 1870-73, no fewer than six acts of Congress were voided. These blows at national power began with the first Legal Tender case. This arose in Kentucky in 1860, when a Mrs. Hepburn borrowed $11,250 from one Henry Griswold. At the time the loan was made, only gold and silver were legal tender for payment of private debts, but in 1862, Congress authorized the issuance of $150,000,000 in United States Notes. When Mrs. Hepburn subsequently attempted to pay off her loan in the new Treasury notes, Griswold refused to accept them and suit resulted. To the immense chagrin of President Grant, Chase and three associates (there were two vacancies on the Court) held that Congress had no authority, under the Constitution, to enlarge its power to coin money into a power to make paper currency legal tender.(213) Scarcely had the Court stunned Congress on this major law before it slapped down the Congress on a minor statute: In 1870, the Court voided an act of 1867 which oddly made it a misdemeanor (unrelated to revenue laws) for any person to sell a combination of naphtha and illuminating oil.(214) This was swiftly followed by a ruling in a New York case, in which the Supreme Court justices upheld New York State judges in refusing to approve the removal of a certain case from State to Federal jurisdiction, pursuant to an act of 1863.(215)
The following year came another severe blow against national authority: Between 1864 and 1867, Congress had adopted several laws levying an income tax.(216) In Massachusetts, a county probate judge, J. M. Day, paid his tax under protest, and then sued for its recovery. His contention was that Congress had no power to impose a tax upon State officials. When the case reached the Supreme Court, a solid majority of the Court agreed. Six years after State sovereignty was said to have been extinguished at Appomattox, Judge Nelson said this for the Court:
It is a familiar rule of construction of the Constitution of the Union, that the sovereign powers vested in the State governments by their respective constitutions remained unaltered and unimpaired, except so far as they were granted to the government of the United States. . . . The government of the United States claims no powers which are not granted to it by the Constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication. . . .(217)
The two governments, said the Court, are on an equality, and if the States could not tax Federal officials, which had been already decided,(218) neither could the Federal government tax State officials.(219) The States, within the limits of their reserved powers, said Nelson, are as independent of the general government as that government within its sphere is independent of the States.
Just one year later, in 1872, the Court again acted summarily upon an act of Congress. A vengeful law, aimed at confiscation of property owned by Southerners during the War, was ruled unconstitutional.(220)
Finally, completing this group of half-a-dozen blows against nationalist expansion, the Court in 1873 refused to sanction a Federal tax that was imposed, in effect, upon the city of Baltimore. Of all the burdens imposed upon mankind, said Judge Hunt, that of grinding taxation is the most cruel. And more than fifty years after a Federalist Court under Marshall had chastised Maryland in a tax case, a States rights Court under Chase came to Marylands rescue.
This is not to say, of course, that every major decision in the postwar period went in the States favor. Of course not. There was, notably, a case from Wisconsin that arose when an eighteen-year-old boy, Edward Tarble, falsified his age and his name and enlisted in the army. His father obtained a writ of habeas corpus from a State commissioner, who directed that the youth be released. On appeal to the State Supreme Court, this judgment was affirmed. The recruiting officer then appealed to the United States Supreme Court, and Judge Field delivered himself of some remarks to the very State court that twelve years earlier, in the Booth case, had defied the Federal tribunal:
There are within the territorial limits of each State two governments, restricted in their spheres of action, but independent of each other, and supreme within their respective spheres. Each has its separate departments; each has its distinct laws, and each has its own tribunals for their enforcement. . . . The two governments in each State stand in their respective spheres of action in the same independent relation to each other, except in one particular, that they would if their authority embraced distinct territories. That particular consists in the supremacy of the authority of the United States when any conflict arises between the two governments.(221)
Notably, Chief Justice Chase dissented from his brothers view. In his opinion, there was no doubt that State courts had a right to issue writs of habeas corpus for inquiry into the jurisdiction of a Federal court over a prisoner. And he was still more convinced, if possible, that State courts had a right to inquire, through habeas corpus, into the detention of a citizen held merely by a Federal official, without the sentence of a court. To deny such powers to a State court, he said, is to deny the right to protect the citizen by habeas corpus against arbitrary imprisonment in a large class of cases.
But the majoritys holding in Tarbles case was the exception in this period, not the rule. Time after time, in major cases, States rights prevailed. In Thomson vs. Union Pacific, the Court upheld the right of States to tax a railroad built with Federal funds.(222) In Osborne vs. Mobile, the Court approved a State license tax on express companies doing business partly outside a State.(223) When a woman in Illinois contended that she had a right, under the Fourteenth Amendment, to practice law in State courts, the Supreme Court affirmed the power of Illinois to legislate on such matters for itself.(224) When a murderer in California was sentenced to death on proceedings that stemmed from an information instead of an indictment, the Court held this was the exclusive business of California.(225) Similarly, Pennsylvania was upheld in a law suppressing the manufacture of oleomargarine;(226) Iowa and Kansas were upheld in State liquor laws,(227) and Mississippi was affirmed in a State act creating a railroad commission.(228) Why should the States have interposed? Their high place was repeatedly affirmed.
BUT THE most significant cases in this period, of course, were those in which the Supreme Court construed the newly imposed Reconstruction Amendments. And of these, the most vital to the cause of States rights was the Courts ruling of 1873 in the famed Slaughterhouse cases.(229) Warren has written of this decision that it profoundly affected the course of the future history of the country.(230) It was one of the glorious landmarks of American law.(231) The case arose when a corrupt, carpet-bag legislature of Louisiana awarded a twenty-five-year monopoly on the operation of a slaughterhouse in New Orleans to a single company. Independent butchers protested that a thousand men had thus been deprived of their right to engage in business; they had been denied, in the language of the new amendment, equal protection of the laws; their privileges as United States citizens had been abridged, and their property had been taken from them without due process of law.
But in April, 1873, nearly five years after the Fourteenth Amendment had been declared ratified, the Court ringingly held that the amendment was not intended to destroy the main features of the general system of constitutional government. The amendment was not designed to bring within the jurisdiction of the Court the entire domain of civil rights heretofore belonging to the States. To thus enlarge the scope of the Fourteenth Amendment would be to make the Court itself a perpetual censor upon all legislation of the States, on the civil rights of their own citizens, with authority to nullify such as it did not approve as consistent with these rights. This responsibility the Court was not prepared to accept.
The great source of power in this country, said Miller for the Court, lies in the people of the States. They have reserved unto themselves, he said, in their respective States, broad police powers; and upon the preservation of these powers, in State hands, depends the security of social order and the enjoyment of private and social life. To seize these powers away from the States would be to fetter and degrade the State governments, and radically to change the whole theory of the relations of the State and Federal governments to each other, and of both these governments to the people.
Within a period of a few years followed five other cases in which the Supreme Court continued to uphold and defend the rights of the States under the Reconstruction amendments. The opinions are important to us today for the strong light they shed on what the amendments meant then, when they were freshly adopted and their intended effect on State and Federal relationships was clear.
In the first of these, the Court voided parts of the Civil Rights Enforcement Act of 1870; the judges saw it as their duty to annul [the acts] encroachments upon the reserved powers of the States and the people.(232) In the second, the Court took a level-headed look at the indictment of a group of white men who had been charged with conspiring to prevent two Negroes from voting in Louisiana. The right to vote, said the Court, is a right that comes from the State; it is not a right subject to regulation as a right of citizens of the United States.(233) In United States vs. Harris, the Court threw out the first anti-lynch law to come from Congress. The so-called Ku Klux Act of 1871 was not warranted by the Reconstruction Amendments: Congress could pass laws to inhibit abridgments of privileges and immunities by a State, but it could not constitutionally legislate against ordinary crimes of violence.(234) In the Civil Rights cases, decided in October of 1883, the entire Civil Rights Act of 1875 was thrown out. This act had undertaken to provide a fine of $500 to $1,000, or a jail sentence of thirty days to one year, on any person convicted of refusing a Negro equal access to a public inn, conveyance, theater, or other place of public amusement. The cases originated in Kansas, California, Missouri; and Tennessee. But the rules laid down by a theater owner for his audience, or by an inn keeper for his guests, are his own personal business, said the Court. Congress cannot validly encroach upon this reserved domain.
Finally, attention may be directed to Barbier vs. Connolly, in 1885, in which the Court upheld a municipal ordinance in San Francisco which prohibited laundry work at night. The ordinance was palpably directed at Chinese laundry operators. But the Court held that in its guarantee of civil rights, the Fourteenth Amendment aimed only at such civil rights as thesethe right of all men to equal access to the courts, to enforcement of their contracts, to equal protection of their property, and equal punishment for crime. The amendment was not designed, said the Court,
to interfere with the power of the State, sometimes termed its police power, to prescribe regulations to promote the health, peace, morals, education, and good order of the people.(235)
In refusing thus to intervene in Californias local affairs, the Court was not making new law. It was adhering to what was, for a time at least, solidly established policy. Forty years earlier, in upholding a port inspection law adopted by New York, the Court had assumed a position it was pleased to call impregnable:
That a State has the same undeniable and unlimited jurisdiction over all persons and things, within its territorial limits, as any foreign nation, where that jurisdiction is not surrendered or restrained by the Constitution of the United States.(236)
The internal police powers of a State, never having been surrendered or delegated, therefore could not be restrained by Federal authority; in these fields, the authority of the State was complete, unqualified, and exclusive. Taney had said the same thing, at about the same time, in the famed Charles River Bridge case: We cannot . . . by legal intendments and mere technical reasoning, take away from [the States] any portion of that power over their own internal police and improvement, which is so necessary to their well-being and prosperity.(237)
But in time, of course, the Court was to take the power away. Taney was dead then, God rest him.
THESE WELL-FOUNDED doctrines of State power were upheld for a time not only as to civil rights cases growing out of the Reconstruction Amendments, but also in a wide variety of other actions in which, long after the War, States both North and South asserted their sovereign authority. Notable among these were the Granger cases, in which the Court approved State laws in Illinois, Wisconsin, Minnesota, and Iowa fixing freight and passenger rates on railroads and fees at grain elevators.(238) Some of Marshalls old rules upon impairment of contracts tumbled in cases from Massachusetts and Mississippi.(239)
But in the final decade of the nineteenth century the judicial trend that had been swinging toward the States began to turn back toward an expansion of Federal powers. State immigration statutes toppled; sweeping new authority was vested in Congress as to the issuance of currency and the construction of internal improvements; in a series of opinions in the 188os, the Supreme Court sharply curtailed the effectiveness of the Eleventh Amendment, by sanctioning suits against States for enforcement of obligations under bond issues.(240)
In no field, however, was this swing of the pendulum more significant than in the construction given by the Court to the commerce clause. The story is too well known, perhaps, to justify very extended review, yet no account of State and Federal conflicts, or of the growth of judicial supremacy over the States, would be complete without some chronicle of the melancholy tale. Congress and the Court, working in beautiful harmony, together snatched from the States and the people almost the last vestige of local control over local affairs. And they did it under the guise of that brief clause in Article I of the Constitution, vesting Congress with power to regulate commerce . . . among the several States.
It was an insidious process, conducted with the care of the cat that stalks her preynow creeping forward, now pausing to sniff the air; now advancing, now lying still as the bird takes alarm; then edging forward again, and so, step by inexorable step, moving to the ultimate seizure. Probably it is too late now for the States to do much about it. But perhaps a backward look might even yet save them from ending up like Prokofieffs duck, quacking feebly from inside the wolf.
In the beginning, it was thought that commerce meant simply the act of transporting goods. Commerce began when the thing transported moved to a carrier for transportation.(241) The power to regulate such commerce among the States, in this uncomplicated era, was viewed primarily as a power vested in Congress to see to it that no hindrance was placed in the way of such transportation.
But in time, a second gateway opened up: The original doctrine grew into a concept that the clause applied not only to transportation, but also to regulation of the thing transported. If these things had, in themselves, some harmful or deleterious property, Congress could exercise its power to regulate as a power to prohibit.(242)
The second gateway gave way to a third: Congress had power to regulate not only commerce, and the commodity in commerce, but also to regulate the conditions under which the commodity or thing were manufacturedand the conditions under which the commodity could be bought and sold.
In recent years, even that concept has proved inadequate to the aggrandizement of centralist power. The theory now is that should the wells of commerce go dry, as Hughes once observed, the Congress has broad power to fill them up againthat is, to encourage, stimulate, and foster commerce among the States.(243) Let us trace some of the more significant milestones on this road to nationalist power.
As early as 1876, the Court began to modify some of the stout assertions it had made in the Miln case (1837) in behalf of State inspection laws.(244) The brave powers given to the States in the Granger cases were abridged within a decade after their promulgation.(245) Then, in 1890, came what one critic termed the most crushing blow against the rights of States which has ever been dealt by that tribunalthe Courts ruling that States could not exercise their reserved powers against the importation and sale of goods in their original package.(246) What this meant, in immediate application, was that prohibition States could not prevent the importation and sale of liquor, but the doctrine opened a wide doorway for other laws to follow.
These major strides toward national authority were accompanied, to be sure, by an occasional backward step and a bow to the States. Thus, certain aspects of mining and manufacture were heldtemporarilyto be not a part of interstate commerce.(247) In the first major case under the Sherman Act, the Court held, 5-4, that sugar interests were not subject to the laws restraint. The Court, indeed, was a little shocked that this should even be suggested: Slight reflection will show that if the national power extends to all contracts and combinations in manufacture, agriculture, mining, and other productive industries, whose ultimate results may affect external commerce, comparatively little of business operations and affairs would be left for State control.(248) The Court, as events were to prove, was to give this apprehension very slight reflection indeed.
Yet for a time, the eagles wings were clipped. Most astonishing of all the decisions in this period, unfavorable to national authority, was the Courts stunning decision in 1895, by which it invalidated the whole of an income tax law adopted by the Cleveland administration.(249) Actually, it is a little unfair to say that the Court voided the law: One man, Justice George Shiras, shaped the Constitution by changing his not very brilliant mind. The result was that the century-old precedent of Hylton vs. United States (1796)(250) vanished in a twinkling, and the shocked country won a clear view of the vagaries of judicial legislation. Justice White, dissenting, offered the interesting argumentand it is quite pertinent to the point of this essaythat the failure of the people to amend their Constitution in this hundred-year period, in order to overthrow the Hylton decision and prohibit an income taxwas practically a ratification of that policy, and an acquiescence in the settled rule of interpretation theretofore adopted. William Jennings Bryan noted furiously that the income tax was not unconstitutional when it was passed; it was not unconstitutional when it went before the Supreme Court for the first time; it did not become unconstitutional until one judge changed his mind, and we cannot be expected to know when a judge will change his mind.(251) But though scores of Congressmen and jurists protested strenuously, it took the Sixteenth Amendment to undo the opinion.
The same session of 1895 that brought invalidation of the income tax saw many a States Righter outraged by the Courts ruling in the Debs case, in which the Court approved the use of both Federal troops and Federal injunctions to put down a major strike.(252) The months just preceding the Debs case also had seen the States offended by opinions outlawing statutes from Texas and Maryland relating to rate regulation of railroads.(253) These rulings were so drastic in their implications that Field protested the Court was palpably invading the reserved authority of the States. Other observers thought so, too: The Democratic National Convention of 1896 adopted a plank denouncing this new and highly dangerous form of oppression by which Federal judges, in contempt of the law of the States and rights of citizens, become at once legislators, judges and executioners. In Oregon, Governor Sylvester Pernoyer condemned a system of government by the plausible sophistries of John Marshall as a government in which a judicial oligarchy has supplanted the Constitution.
For the States there was worse to come. In 1896, the Court took another big step toward nationalism, when it sanctioned Federal condemnation of the Gettysburg Battlefield for a national cemetery as a necessary and proper action under the general welfare clause.(254)
Then a riptide of opinions began to wash away State powers. Congress helped. Following the basic Interstate Commerce Act of 1887, the Congress had piled onto the statute books the Safety Appliance Act of 1893. Now it added the Automatic Coupler Act of 1903, the Hours of Service Acts of 1907 and 1916, the Employers Liability Acts of 1905 and 1908, the Hepburn Act of 1906 (which superseded all State laws limiting recovery for loss of goods in transportation), the Boiler Inspection Acts of 1911 and 1915, the Plant Quarantine Act of 1912, and ultimately the Adamson Act of 1916, which undertook to fix wages and hours for railway employees.
With the single exception of the Employers Liability Act (the so-called Yellow Dog Act),(255) each of these bold ventures into the regulation of commerce won the Courts approval. Thus, with the Courts blessing, the second gateway of the commerce clause swung wide: Congress no longer found itself limited to regulating mere transportationit was invited to regulate the things transported. In swift succession, the Supreme Court approved laws that banned the interstate shipment of such evils as lottery tickets,(256) impure food,(257) narcotics,(258) prostitutes,(259) and an infinite variety of other goods held to be inherently evildiseased nursery stock, moths and plant lice; stolen autos, prize-fight films, and game birds taken in violation of State law.
This deliberate widening of Federal authority was accompanied, in another field of law, by a corresponding restriction of State powers: In a series of cases, the Supreme Court sustained suits brought against State officials to restrain them from enforcing State laws alleged to be unconstitutional. Oregon was estopped from enforcing an act governing the sale of land; North Carolina, Missouri, Texas, and Nebraska ran into Federal injunctions on their railroad laws; South Carolina was snubbed on a dispensary statute; Michigan and Indiana saw their tax-assessment statutes effectively nullified. These cases came to an angry boil in March of 1908, when the Supreme Court upheld the punishment imposed by a Federal court upon Edward T. Young, Attorney General of Minnesota, for his temerity in attempting to test a State rate law against a railroad.(260) The Federal Circuit Court had ordered Young (and in effect, had ordered Minnesota) not to bring such a suit, but Young persisted and it cost him a $100 fine. He refused to pay, and was taken in custody by a United States marshal. Then a writ of habeas corpus, issued by the Supreme Court itself, brought the matter up for review. A majority of the Court, through Justice Peckham, held that Minnesotas rate law was unconstitutional on its face, and therefore, that Youngs action in bringing suit was void. Justice Harlan interposed a thirty-five-page dissenting opinion, in which he commented that the majoritys view, if long sustained, would inaugurate a new era in the American judicial system, and in the relations of the national and State governments.(261) It would enable subordinate Federal courts, said Harlan, to supervise and control the official action of the States as if they were dependencies or provinces, and it would leave the States of the Union in a condition of inferiority never dreamed of when the Constitution was adopted or when the Eleventh Amendment was made a part of the supreme law of the land.
Many of the States quite agreed with Justice Harlan. The Nebraska Legislature adopted a strong resolution demanding that Congress pass remedial legislation to curb the Courts mandates. And Congress, in 1910, complied.
But the Court was unmoved. In 1914, in the Shreveport case, it cracked down again on State regulation of railroads with a decision so drastic that the Attorneys General of forty-two States intervenedfutilelyagainst the encroachment.(262) The Court opened the vast Pandoras box of public power, when it authorized Federal sale of excess electric power resulting from navigation projects.(263) It started upon the trail of Federal regulation of natural gas.(264)
Thengently at first, but irresistiblyCourt and Congress opened still a third gateway in the Commerce Clause: Having established the power of Congress to regulate transportation and the things transported, the judges turned to regulation of the terms and conditions by which commodities are manufactured. It was not an easy turning. When a test of the first Child Labor Law came along, the Court held, a little uneasilyperhaps a little guiltilythat it had gone far enough.(265) In this case, the father of two teen-aged boys, employed in a mill in Charlotte, N.C., brought suit to prevent enforcement of the Federal act of 1916 prohibiting child labor. A Federal District Court held the act unconstitutional, and on appeal, the Supreme Court agreed. It was one thing, said the Court, to prohibit interstate shipment of things that were evils in themselvesdiseased plants, prostitutes, lottery tickets, and the likebut cotton goods were not inherently evil: The Congress had gone too far; it had over-reached its authority. And the Court, through Justice Day, observed:
In interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people, the powers not expressly delegated to the national government are reserved. . . . The far-reaching result of upholding the act cannot be more plainly indicated than by pointing out that if Congress can thus regulate matters entrusted to local authority by prohibition of the movement of commodities in interstate commerce, all freedom of commerce will be at an end, and the powers of the States over local matters may be eliminated, and thus our system of government be practically destroyed.
Justice Holmes (joined by McKenna, Brandeis, and Clarke) filed a ringing dissent. I should have thought, said he, 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 the Court, Holmes asserted, had no right to intrude its judgment upon questions of policy or morals. That was the prerogative of Congress. And if the Congress chose to regard child labor as an evil, Holmes did not see how a Court that had sanctioned a ban against strong drink could rule against the product of ruined lives.
In time, to be sure, Holmes views were to prevail. But in 1918, Federal prohibition of child labor was more than a majority of the Court would accept. Yet the Packers and Stockyards Act of 1921 met the Courts approval,(266) and the Grain Futures Act of 1922 seemed clearly within the powers of Congress.(267)
IF THE flow of the commerce doctrine may be left in a literary bayou for a few pages, attention may be directed abruptly toward an entirely separate issue that resulted in sharp conflict between State and Federal authority in the period under consideration. This was, of course, the matter of national prohibition.
It is an everlasting testimony to the sincerity, the optimism, and the blind idiocy of man that no fewer than forty-six of the forty-eight sovereign States ratified the Eighteenth Amendment as proposed, late in 1917, by the Sixty-fifth Congress. Only Connecticut and Rhode Island kept their heads. The other States, losing theirs, agreed that after January of 1920, the manufacture, sale, or transportation of intoxicating liquors, was to be prohibited.
But scarcely had the long dark night begun before a thirsty people, suddenly appalled, began to resist the amendment just adopted. Twenty thousand persons, spurred on by the late Mr. Mencken, paraded through the streets of Baltimore; another ten thousand participated in a protest before the Capitol in Washington.(268) Bootleggers and rumrunners came forward, dutifully, to perform those patriotic services for which Nature had fitted them. In New York, an Association Against the Prohibition Amendment was chartered, with an announced purpose to make the Eighteenth Amendment forever inoperative. Rhode Island made the mistake of testing the Amendment, only to be told that no State could undertake to defeat or thwart its provisions.(269) Eminent attorneys urged Connecticut to take a still bolder position that not even forty-six ratifying States and the Supreme Court could take from sovereign Connecticut the power reserved inalienably by her people to engage, intrastate, in the distillation and sale of whiskey.(270) The late Owen Brewster, then Governor of Maine, encouraged the opposition: Centralization and usurpation have been the keynote of American government in the decade that is just passed.(271) So, too, did New Jerseys Governor A. Harry Moore in his inaugural address of 1926: An indissoluble Union of indestructible States, he said, quoting Chase in Texas vs. White, is rapidly becoming an indissoluble Union of impotent States. . . . Let restoration of States rights be our watch-word.(272)
The amendment had given Congress and the States concurrent power to enforce prohibition. New York in 1923 exercised her sovereign powers by a form of nullification in reverse: New York repealed her State prohibition enforcement act, and blandly left Federal authorities to carry on as best they could. The United States Attorney for the Southern District of New York termed this unkind action the hardest blow the enforcement of the Eighteenth Amendment has received. And so uninterested was New York in enforcing the plain language of the United States Constitution, that speakeasies multiplied as assiduously as rabbits. By 1929, Manhattan police matter-of-factly reported they had counted 32,000 speakeasies, but might have missed a few.
Throughout this period, as Alfred E. Smith was to remark later, the citizens who continued to fight prohibition were referred to as Nullificationists, as enemies of the Constitution, as people that wanted to destroy organized and properly constituted government. But in actual fact, in the view of Senator Herbert Lehman, who was then Governor of New York, these foes of prohibition were in reality devoted and patriotic men and women [who carried on a fifteen-year struggle] against sumptuary legislation which at no time represented the uncontrolled sentiment of a majority of the people of this country. The amendments ultimate repeal in 1933, said Mr. Lehman, showed the force of intelligent, well-considered public opinion, aroused by the abuses and failures of a statute that never commended itself to the reasoned judgment of the people. Repeal, to Mr. Lehman, represented victory in a fight to regain that balance between State and Nation which is guaranteed by the Constitution of the United States, and to substitute temperance for hypocritical and unenforceable prohibition.
Noting Mr. Lehmans words, Virginias Senator A. Willis Robertson, summed up the point here sought to be made: Will the gentleman not recognize that the decree demanding that instead of providing separate but equal schools for the races, the Southern States must mix them all together, is in our eyes sumptuary legislation of the worst sort, and that such action does not commend itself to the reasoned judgment of the people in our States?
And it may also be suggested that some of the Souths critics, now most articulate in denouncing resistance to a ruling of the Court, were themselves most active thirty years ago in vigorously resisting not merely the Courts interpretation of the Constitution, but the Constitution itself. In their eyes, then, national prohibition was an unwarranted and wrongful encroachment upon individual liberties. It is perhaps needless to pursue the parallel.
DURING the 1920s, the Supreme Court under Taft moved first forward, now slightly to the rear, and then forward again, in sanctioning gradual enlargement of the powers of Congress under the commerce clause. But it was not until about the time that Taft died, in 1930, and Hughes returned to the Court as Chief Justice, that the death struggle began between the State and Federal authority.
For a few years, the tide of battle flowed to the States. The first major test of Roosevelts depression measures came with the National Industrial Recovery Act of June, 1933, which set up some seven-hundred codes of fair competition by which hours, wages, customer relations, and collective bargaining would become subject to Federal control. Under one of these codesthe Live Poultry Code for New York Citya small slaughterhouse in Brooklyn fell into the hands of Federal authority. Its sin, among others, was that the Messrs. Schechter had sold an unfit chicken to a customer.
Hughes himself spoke for a unanimous Court. True enough, he said, times were desperately badbut extraordinary conditions do not create or enlarge constitutional power.(273) In the Courts view, the act went far beyond the limits set down by the Tenth Amendment; the act not only usurped a power not delegated to Congressit also undertook to delegate that power to private hands. It was delegation running riot, as Cardozo remarked in a concurring opinion.(274) Plainly, in the Courts view, the power to regulate commerce extended only to actions that affected the current of commerce; and in the case of Schechters chickens, in Brooklyn, the flow in interstate commerce had ceased. Hughes went on to cite what he called the necessary and well-established distinction between direct and indirect effects on interstate commerce; and where an effect is merely indirect, such transactions remain within the domain of State power. If this were not so, he said reflectively, the Federal authority would embrace practically all the activities of the people, and the authority of the State over its domestic concerns would exist only by sufferance of the Federal government. So saying, the Court gazed upon Mr. Schechters chickens and slew the Blue Eagle. It was a memorable decision.
Shortly thereafter came a second major test of the New Deal program. In 1933, Congress had passed the Agricultural Adjustment Act, which undertook, among other things, to levy a tax upon cotton processing for the benefit of cotton farmers who would plow under their surplus crops. When the receivers for the Hoosac Mills declined to pay the tax, and contested the acts constitutionality, the Supreme Court in 1936 held the law void.(275) The act, said Roberts for the Court, was no more than an attempt to take money from processors and bestow it upon the farmers; it was an attempt to regulate production, a matter beyond the powers delegated to the Federal government, and hence in violation of the Tenth Amendment. To accept Mr. Roosevelts construction, said the Court, would require that every provision and every fair implication from [the Constitution] . . . be subverted, the independence of the individual States obliterated, and the United States converted into a central government exercising uncontrolled police power in every State of the Union, superseding all local control or regulation of the affairs or concerns of the States.(276)
It was brave language. But perhaps the States were so pleased by the outcome of the case that they failed to penetrate some dicta that Roberts put forth, foggily but firmly, on the matter of the general welfare clause. It was the governments position that the AAA was justified by the power vested in Congress to lay and collect taxes, . . . to pay the debts and provide for the common defense and general welfare of the United States. What about this clause? Roberts remarked, with a great gentleness, that students of the Constitution for many years had disagreed about the meaning of the welfare clause. Madison had asserted that the clause added nothingit referred only to the enumerated powers of Congress, and the power to tax did not extend beyond these. Hamilton, on the other hand, had maintained that the general welfare clause conferred a power separate and distinct from the enumerated powersthat Congress was limited in its power to tax and spend only by what Congress deemed to be the general welfare. Justice Story, observed Roberts, had espoused the Hamiltonian position in his Commentaries, but until now, the view had not been authoritatively accepted by the Court. Taking a breath, he continued in a fateful paragraph:
We shall not review the writings of public men and commentators or discuss the legislative practice. Study of all these leads us to conclude that the reading advocated by Justice Story is the correct one. While, therefore, the power to tax is not unlimited, its confines are set in the clause which confers it, and not in those of Section 8 which bestow and define the legislative powers of the Congress. It results that the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.(277)
Roberts interjected a few tactful qualifiers: The power invoked by Congress must be truly for the general welfarethat is, the national welfareand could not affect merely local matters. It could not be exercised, he added in a horrified afterthought, for the destruction of local self-government in the States. Not even Hamilton had suggested that, nor had Story ever countenanced the thought. After all, it hardly seems necessary to reiterate that ours is a dual form of government, in which the Federal government may exercise only such powers as are expressly conferred upon it.
The qualifiers are forgotten now. In the moment Roberts opinion came down, constitutional limitations dissolved into the shapeless mass of a sand castle on a beach, slapped by a passing roll of foam.
But just as a tide stays at its peak for a brief hour, so the Court was to hand down one more decision that limited, for a few years, the expanding Federal authority. In 1935, Congress had passed the Bituminous Coal Conservation Act, in which regulation was attempted of the wages and hours of miners, and the price of soft coal. In Carter vs. Carter Coal Company, on May 18, 1936, the Court in a 5-4 decision applied its Schechter doctrine in reverse: Coal at the mine had not yet entered the current of commerce; it was still at rest. Speaking for the majority, Sutherland agreed that the aims of protecting the health of miners and the comfort of the people doubtless were objects of great worth. But he asked himself, are they an end, the attainment of which has been committed by the Constitution to the Federal government? He could not agree that they were. Once more, valiant to the end, the Court majority called attention to the ruling and firmly established principle
that the powers which the general government may exercise are only those specifically enumerated in the Constitution, and such implied powers as are necessary and proper to carry into effect the enumerated powers.(278)
And Sutherland went on, arguing publicly with the dictum Roberts had laid down just a few months before, dealing with the welfare clause.
The proposition, often advanced and as often discredited, that the power of the Federal government inherently extends to purposes affecting the Nation as a whole with which the States severally cannot deal or cannot adequately deal, and the related notion that Congress, entirely apart from those powers delegated by the Constitution, may enact laws to promote the general welfare, have never been accepted but always definitely rejected by this court.
In plain truth, this very notion had been embraced by Roberts in the AAA case, and the reign of Sutherlands ruling principle of the Tenth Amendment was fast ending. Sutherland could add only a valedictory, and he was done: The States were before the Constitution, he said defiantly. Their legislative powers antedated the Constitution. In all the powers they had reserved to themselves, they are supreme.
Every journey to a forbidden end begins with the first step; and the danger of such a step by the Federal government in the direction of taking over the powers of the States is that the end of the journey may find the States so despoiled of their powers, orwhat may amount to the same thingso relieved of their responsibilities which possession of the powers necessarily enjoins, as to reduce them to little more than geographical subdivisions of the national domain.(279)
That was the last of the 5-4 rulings by the conservative majority among the nine old men. This decision was the high-water mark, Roberts later remarked.(280) Thereafter the tide ebbed. The Carter decision came down in May of 1936. In February of 1937, Mr. Roosevelt brought forth his court-packing scheme. He proposed that any judge who had reached the age of seventy, and had served ten years on the court, be retired on full paybut if any judge failed or refused to retire, a new judge should be appointed, up to a total court of fifteen. It was an invitation to six of the nine judgesall but Roberts, Stone, and Cardozoto get off the bench. Barely three months elapsed before the Court reached another landmark decision, this time in a series of cases upholding the National Labor Relations Act of 1935. But the Court that had stood 5-4 for States rights in May of 1936, stood 5-4 for Federal authority in April of 1937. Now the Court jettisoned the doctrines of the Carter case. How can it be maintained, asked Hughes, waggling an indignant beard, that industrial labor relations constitute a forbidden field that Congress may not enter? To be sure, the authority of the Federal government may not be pushed to such an extreme as to destroy the distinction . . . between commerce among the several States and the internal concerns of a State, for the distinction between things national and things local is vital to the maintenance of our Federal system. But labor relations within a steel companyor within a clothing company or a trailer manufacturing companydid affect commerce. Labor strife could in fact impose a burden that might obstruct commerce. Hughes did not propose that the Court shut our eyes to the plainest facts of our national life, and . . . deal with the question of direct and indirect effects in an intellectual vacuum.(281)
McReynolds put in a despairing dissent. Van Devanter, Sutherland, and Butler joined him. The majoritys doctrine was subversive of States rights. It would mean serious impairment of the very foundations of our federated system. But the Court was shifting its direction. One month later, on May 24, the Court through Cardozo took the greatest step yet toward expansion of Federal powers in approval of the Social Security Act of 1935, The tax thus imposed, said the majority, was imposed for the general welfareand the general welfare was for Congress to define without the Courts intervention.
Again McReynolds raised his voice: What was it that Chase had said in Texas vs. White in 1869? The Constitution looks to an indestructible Union composed of indestructible States. But what was the effect of the majoritys opinion? It opens the way for practical annihilation of this theory, and no cloud of words or ostentatious parade of irrelevant statistics should be permitted to obscure that fact.(282) Sutherland and Van Devanter also dissented: The majoritys ruling would deny to the States that supremacy and freedom from external interference in respect to [their] affairs which the Constitution contemplates. If the Union were to survive as the United States, the balance between the powers of the nation and those of the States must be maintained. And prophetically, they remarked:
There is grave danger in permitting it to dip in either direction, dangerif there were no otherin the precedent thereby set for further departures from the equipoise. The threat implicit in the present encroachment upon the administrative functions of the State is that greater encroachments and encroachments upon other functions will follow.(283)
By this time the tide was running out fast. When the Fair Labor Standards Act came along in 1938, the third gateway of the commerce clause swung to its widest point. Here the court asserted for the Federal government the widest possible control of wages and hours, overtime, working conditions, and the like. In United States vs. Darby, Stone traced at some length, as if to justify his conscience and the Courts, the growth of the commerce doctrine. The judges were unanimous: The Tenth Amendment was but a truism.(284) Any process or occupation necessary or related to the current of interstate commerce henceforth was subject to congressional control. The motive and purpose of a regulation of interstate commerce are matters for the legislative judgment upon the exercise of which ihe Constitution places no restriction, and over which the courts are given no control. The effect of sustaining the act, Roberis observed in his lectures at Harvard in 1951, was to place the whole matter of wages and hours of persons employed throughout the United States, wilh slight exceptions, under a single Federal regulatory scheme and in this way completely to supersede State exercise of the police power in this field.(285)
The rest of the tale is quickly told. The year following the Darby case saw the court approve the Agricultural Marketing Agreement Act of 1937, by which the farmers were delivered into Federal custody: Congress, it was ruled, plainly had authority to fix a minimum price on milk in Chicago, for the commerce power is not confined in its exercise to the regulation of commerce among the Statesit extends to those activities intrastate which so affect interstate commerce, or the exertion of the power of Congress over it, as to make regulation of them appropriate means to the attainment of a legitimate end. And the Court happily cited John Marshall in McCulloch vs. Maryland to prove it.(286) Almost immediately thereafter, the Court gave its benediction to the Agricultural Adjustment Act of 1938. This extended Federal controls even to wheat or corn consumed on a farm. The judges saw nothing wrong in this: It can hardly be denied that a factor of such volume and variability as home-consumed wheat would have a substantial influence on price and market conditions. After all, the stimulation of commerce is a use of the regulating function.(287) That was the fourth doorway opening there: The stimulation of commerce. No great powers of prophecy are required to foresee that in this fourth gateway, new vistas appear of Federal projects under the commerce clause.