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The supreme court in 1895 in affirming the supremacy of the federal power in interstate commerce, said:1

"Constitutional provisions do not change, but their operation extends to new matters, as the modes of business and the habits of life of the people vary with each succeeding generation. The law of the common carrier is the same to-day as when transportation on land was by coach and wagon, and on water by canal boat and sailing vessel, yet in its actual operation it touches and regulates transportation by modes then unknown, the railroad trains and steamships. Just so it is with the grant to the national government of power over interstate commerce. The constitution has not changed. The power is the same. But it operates to-day upon modes of interstate commerce, unknown to the fathers, and it will operate with equal force upon any new modes of such commerce which the future may develop."

§ 2. Power of congress in foreign commerce and with the Indian tribes distinguished.-In the commerce clause, congress is empowered to regulate commerce with foreign nations among the several states and with the Indian tribes. Although the three classes of commerce are thus grouped in the same clause and in the same terms, there is a distinction which has been frequently discussed between interstate commerce on the one hand, and that with foreign nations and with the Indian tribes on the other, and this distinction is important not only in the construction of the legislation heretofore enacted by congress, but in determining the power of congress in what may be termed its unexercised power over interstate commerce. In its control over foreign commerce, congress exercises the power of an independent sovereign dealing with other inde

of the court in Leloup v. Port of Mobile, 127 U. S. 640, 32 L. Ed. 311, in 1887, said that a great number and variety of cases in volving the commercial power of congress have been brought to the attention of this court during the past fifteen years, which have frequently made it necessary to re-examine the whole subject with care and the result has sometimes been that in order to give full and fair effect to the different

clauses of the constitution, the court has been constrained to refer to the fundamental principles stated and illustrated with so much clearness and force by Chief Justice Marshall and other members of the court in former times, and to modify to some degree certain dicta and decisions which have occasionally been made in the intervening period.

1 In re Debs (1894), 158 U. S. 564, c. p. 591, 39 L. Ed. 1092.

pendent sovereign powers, and there is no implied or reserved power in the states in relation to such commerce. Congress may exercise the sovereign power of placing an embargo upon foreign commerce or it may exclude aliens. Commerce with the Indian tribes is also distinct from that between the states, in that congress in such regulation exercises the power of a sovereign over a dependent people or tribal communities subject to the paramount authority of the United States. The power of controlling commercial relations with foreign nations and with the Indian tribes is therefore an essential sovereign power, which might have been inferred as an attribute of an independent sovereign nation created by the constitution without express grant of such power in the constitution.

The power to regulate commerce among the states was expressly given to congress in order to secure equality and freedom in commercial intercourse between the states as sovereign political communities, subject only to the paramount authority of the United States in national concerns. Although the three classes of commerce are thus included in the same clause and in the same terms in the enumeration of powers, they are clearly distinguished in their historic setting and constitutional import, and the laws, which are necessary and proper in regulating commercial intercourse with foreign nations and with the Indian tribes, may not be necessary and proper in regulating such commercial intercourse between the states.3

§ 3. The preference clause in the constitution. The socalled preferential clause of the constitution (article I, section 9, paragraph 5, supra) illustrates this differentiation of the federal control of commerce among the states from that over foreign commerce and with the Indian tribes.

As already observed, at the time of the adoption of the con

11 Story on the Constitution, sec. 289; United States v. Brigantine William, Dist. of Mass., 2 Hall's Am. Law. J. 255.

2 Cherokee Nation v. Georgia, 5 Peters, 1 (1831), 8 L. Ed. 25; Worcester v. Georgia, 6 Peters, 515 (1832) 8 L. Ed. 483; United States v. Kagama, 118 U. S. 375, 30 L. Ed.

228 (1886); United States V. Forty-three Gallons of Whiskey, 93 U. S. 188, 23 L. Ed. 846 (1876); Cherokee Nation v. Kansas Ry. Co., 135 U. S. 641 (1890), 34 L. Ed. 295.

See opinion of Justice McLean in Groves v. Slaughter, 15 Peters, L c. 505, 10 L. Ed. 800-821 (1841).

stitution, commerce among the states, all of which were connected by sea and navigable waters, was conducted wholly by navigation except what was conducted by stage or wagon. The prohibition therefore of any preference of the ports of one state over those of another, or of any duties in interstate traffic, had an importance at that time as a restraint upon the powers of the general government which can hardly be appreciated at the present time. The section is devoted exclusively to defining the powers conferred upon congress, and is a distinct limitation of the powers of congress in the regulation of commerce between the states.1

84 (3). The prohibition of tax or duty on exports from a state. The prohibition of a tax or duty upon articles of export from any state was assumed in Almy v. California to apply to exports from one state to another. It has since been held that this prohibition has no application to interstate traffic, but applies to foreign exports only.❜


This clause was discussed in one of the Insular cases, where a bare majority of the court held that a tariff upon merchandise going into Porto Rico from the United States was not a duty upon an article exported from the United States, as it was not exported to a foreign country.

Mr. Justice Brown in delivering the opinion of the court said it was not intended to intimate that congress could lay a tariff upon merchandise carried from one state to the other, while in the dissenting opinion it was insisted that this clause was intended to prevent the exercise through the taxing power of congress or its power to regulate commerce so as to discrimi

1 Morgan, etc. Co. v. Bd. of Health, 118 U. S. 455 (1886), 30 L. Ed. 237. Attorney-General Moody, in his opinion of May 25, 1905 (Vol. 11, Senate Reports, p. 1674), advised the senate committee of interstate commerce that reasonable rates determined by legislative authority would not constitute a preference between the ports of different states within the prohibition of Art. 1, Sec. 9, paragraph 5 of the Constitution, even

though they resulted in a varying charge per ton per mile to and from the ports of the different states.

2 24 Howard, 169 (1860), 16 L. Ed. 644.

3 Woodruff v. Parham, 8 Wallace, 123 (1868), 19 L. Ed. 382.

4 Dooley v. United States, 183 U. S. 151 (1901), 43 L. Ed. 128.

Justices Fuller, Brewer, Harlan, and Peckham.

nate between one part of the country and another, and the power to regulate interstate commerce was granted in order that trade between the states might be left free from discriminating legislation, and not to impart the power of creating antagonistic commercial relations between them.

§ 5 (4). Federal sovereignty in interstate commerce.-The federal authority in interstate commerce is enforced not only by the power of regulation granted to congress by the constitution, but also by the exercise of other expressly enumerated powers of congress, more or less directly relating to interstate commercial intercourse. Thus the power to establish post offices and post roads, to coin money, to establish uniform systems of bankruptcy, to grant patents for discoveries, and most

1 The Articles of Confederation gave congress the power only to establish post offices. The enlarged grant in the constitution so as to include the establishment of post roads, was the subject of extended discussion in the ante-railroad days. See Story's Commentaries on the Constitution, sections 1123, et seq. It was discussed in connection with the building of the Cumberland or National road by the United States. See Searight v. Stokes, 3 How. 151, 11 L. Ed. 537 (1845). Mr. Tucker, in his Commentaries on the Constitution, Sec. 276, claims that the power to construct post roads is limited to cases where there are no post roads and it is necessary to build them for postal purposes. He says, however, that the question of power to build the roads, where not for postal purposes, has never been settled. In Pennsylvania v. The Wheeling & Belmont Bridge Co., 18 How. 421, 15 L. Ed. 435 (1856), in sustaining the power of Congress to declare the Wheeling bridge a lawful struct

ure, the court declined to enter upon the question whether Congress possessed the power to establish the bridge as a post road under the Post Road clause, saying, "For, conceding that no such power can be derived from this clause, it must be admitted that it is at least necessarily included in the power conferred to regulate commerce among the several states." It has been claimed that the power to establish post roads would authorize Congress to organize a system of national postroad corporations with incidental power to deal in transportation of persons or property within as well as among the states. See mono, graph of Hon. Edgar Howard Farrar (1907). Since the introduction of railroads they have been uniformly used to carry the mails, and state roads have been used to reach post offices not reached by the railroads. In the Railroad Act of 1866, infra, § 42, Congress referred, in the preamble to the act, to the power to establish post roads.

important of all the taxing power, are closely associated with commercial relations and activities. There is also what has been termed the 62 >-efficient power," the power to make all laws necessary all proper to carry into effect the foregoing powers, and all other powers vested by the constitution, in the government of the United States or in any department or officer thereof.

The broad and comprehensive construction given to this coefficient power, in selecting measures for carrying into execution the constitutional powers of the government has made academic rather than practical the long debated distinction between the express and implied powers of congress. The words "necessary and proper" are not limited to such measures as are absolutely and indispensably necessary, without which the powers granted must fail of execution, but they include all proper means which are conducive or adapted to the end to be accomplished, and which in the judgment of congress will most advantageously effect such end.2


The federal authority in interstate commerce, as in other matters, does not rest on a mere aggregation of the enumerated powers. Although the government of the United States is one of enumerated powers, and under the tenth amendment the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people, it is also true that there is a national sovereignty-a national Federal State-within the scope of the enumerated powers, and the constitution and laws of the United States are the supreme law of the land. Upon this broad principle of the sovereignty growing out of the aggregation of enumerated powers was based the power to charter a national bank, the power to exercise the right of eminent domain, the power to issue legal tender notes," and the power to exclude aliens. The power to issue legal tender notes, which was strongly controverted, was based upon two


1 McCulloch V. Maryland, 4 Wheat. 316, 438, 4 L. Ed. 579 (1819).

2 Legal Tender Cases, 110 U. S. 421 (1884), 28 L. Ed. 204.

3 McCulloch v. Maryland, supra. 4 Kohl v. United States, 91 U. S.

367, 23 L. Ed. 449 (1875); Stockton v. Baltimore, 32 Fed. Rep. 9. Legal Tender Case, supra. Chinese Exclusion Cases, 130 U. S. 581 (1889), 32 L. Ed. 1068, 149 U. S. 698 (1893), 37 L. Ed. 905.

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