out in his opinion, that the prohibitions theretofore sustained had been upheld in cases where the use of interstate transportation was necessary to the accomplishment of some harmful result. But, even though this may be true, the discussion in the cases in question, certainly in the Lottery Case, made no distinction of this kind; and, furthermore, it is difficult to discover the legal principle which would permit the exclusion from interstate commerce of articles whose transportation operates to facilitate harmful results at destination, and would forbid the exclusion from interstate commerce of articles whose transportation operates to facilitate the accomplishment of harmful results in the locality of origin. If the facility of interstate transportation can be denied in the one instance it is difficult to see how it may be not denied in the other.

Laying aside the difficulty of reconciling the decision in this respect with the previous decisions of the Court, the opinion of the Court in Hammer v. Dagenhart, in its consideration of the prohibitory characteristic of the legislation, seems to limit itself to an unduly narrow view of the subject. While the transportation of specific articles in interstate commerce is prohibited, and while it may be contended that this is not a regulation of this specific species of interstate commerce, yet it cannot be denied that all interstate commerce, i. e., interstate commerce in its totality, is regulated by excluding from the channels thereof traffic which Congress desires to exclude. It is the totality of interstate commerce, as well as specific cases, that Congress is given the right to regulate by the provisions of the Federal Constitution.

It is difficult to understand, therefore, why the exclusion from the channels of interstate commerce of certain commodities can be treated otherwise than as the regulation of the totality of such commerce; and whether the articles so excluded be diseased live stock,25 lottery tickets, 28 adulterated or misbranded food or drugs,27 immoral women,28 or articles pro

duced by the labor of children would seem to have no bearing on the determination of the question whether interstate commerce in its totality is regulated. That this is the view of the dissenting justices in Hammer v. Dagenhart clearly appears from the dissenting opinion of Mr. Justice Holmes, who says:

"Regulation means the prohibition of something, and when interstate commerce is the matter to be regulated I cannot doubt that the regulation may prohibit any part of such commerce," that Congress sees fit to forbid."

20

The only question that might arise in this connection is whether the regulation in question is arbitrary and therefore in violation of the Fifth Amendment.

In view of the foregoing considerations it seems to have been a fair conclusion from the decisions of the Supreme Court, rendered prior to the decision in Hammer v. Dagenhart, that Congress could legislate with respect to interstate traffic or transportation irrespective of its motive or purpose in so doing, subject, of course, to the limitations of the Fifth Amendment, and that prohibitions of such interstate traffic or transportation were valid regulations of commerce, since, although in one aspect they constitute prohibitions of commerce rather than regulations, they nevertheless are true regulations of interstate commerce in its totality because they exclude from the channels thereof a portion of such commerce deemed by Congress to be detrimental to the public interest. From these principles it would seem to follow that the Federal Child Labor Law would be constitutional even though it might subserve no commercial purpose with respect to interstate commerce. But while its validity would apparently be capable of support even if it should be regarded as limited to the accomplishment of a police purpose pure and simple, that is to say, as limited to an indirect effect on the employment of children by the probable consequences which would result from the exclusion of products manufactured by their labor from the channels of interstate commerce,

Hoke v. U. S., 227 U. S. 308 (1913).

Italics ours.

the law, has of course, as has many times been pointed out, a direct commercial purpose and effect in that it is intended to free interstate commerce from the trammels and restrictions which result from the laxity of the laws of certain States with respect to the employment of children.

Thus, if States A and B are seeking to market the same commodity in State C, which adjoins thein both, it is obvious that interstate transactions between A and C will be measurably impeded and restricted if State A has hours-of-service laws which increase the cost of production, whereas no such laws prevail in State B. It is true that many other factors enter into the commercial problem and combine with this one to determine the ability of the manufacturer in State A to compete in State C with the manufacturer of State B; but conditions of employment constitute one of these factors, and an important one, and it is difficult to understand why Congress cannot require that the facility of interstate transportation shall be denied to the transportation of products between States A and C, when such transportation may burden or restrict the interstate traffic between States B and C.

Probably the primary purpose in granting to Congress the power to regulate commerce among the States was the desire to avoid the burdensome restrictions which rapidly developed in the period immediately following the Revolution; and while in his dissenting opinion in the Lottery Case, Mr. Chief Justice Fuller says that this power, "was intended to secure equality and freedom in commercial intercourse as between the States, not to permit the creation of impediments to such intercourse,' it is noteworthy that, although the Federal Child-Labor Law might operate in a restrictive manner in one direction, as for example, between States B and C in the foregoing illustration, on the other hand, it tends to liberate from the trammels and obstructions arising from the lax labor laws of State B interstate commerce between States A and C.

" 30

In principle, this is believed to be the basis upon which

* Page 373.

the Supreme Court has sustained the right of Congress to deal with intrastate railroad rates, when such rates are so regulated by a State as to create a restrictive influence upon the movement of interstate traffic. It may be said with equal force in such a situation that the freight rate is only one of the factors which enter into the competitive situation, but none the less the Supreme Court has held that it is so closely related to interstate commerce as to justify Federal regulation.31 There would seem to be ample justification in the present instance for the application of the same principle.

Moreover, the Court has sustained an hours-of-service law for railroad employees engaged in interstate commerce,32 the Employes' Liability Law in the same field,33 the Safety Appliance Law 34 and the Adamson Railroad Wage Law,35 all on substantially the same ground, viz., that Congress may deal with these matters because of their intimate relation, under the circumstances, to the free and untrammelled movement of interstate commerce. The situation dealt with in the Federal ChildLabor Law differs only in degree, so far as restrictions on interstate commerce are concerned.

36

Furthermore, the decision of the Supreme Court sustaining the Webb-Kenyon Law, clearly indicates the power of Congress to exert its authority to regulate interstate commerce so as to permit the effective operation of State police laws; and while it is true that in the case of the Webb-Kenyon Law the Federal legislation operated to support generally State police legislation, whereas the legislation involved in the Hammer Case would operate to reinforce the legislation in certain States only, the principle seems to be the same, and it is not perceived why

"Houston E. & W. Texas Ry: v. U. S., 234 U. S. 342 (1914); American Express Co. v. Caldwell, 244 U. S. 617 (1917); Illinois Central R. R. Co. v. Illinois, 245 U. S. 493 (1918).

"B. & O. R. R. v. I. C. C., 221 U. S. 612 (1911).

"Employers' Liability Cases, 207 U. S. 463 (1908); Second Employers' Liability Cases, 223 U. S. 1 (1912).

24

Southern Railway v. U. S., 222 U. S. 20 (1911).

"Wilson v. New, 243 U. S. 332 (1917).

"Clark Distilling Co. v. W. M. R. R., 242 U. S. 631 (1917).

Congress, through the medium of its power over interstate commerce should not be able to lend support to one as against another of conflicting State policies. This is essentially what it has done in the case of the Webb-Kenyon Law, putting its prohibitory legislation back of the States seeking to enforce strict liquor laws and necessarily opposing as a consequence the policy of the States which continue to permit the traffic.

Obviously, from the broader point of view, it is desirable that Congress should be competent to deal with the situation which arises when the States pursue differing policies which have a direct bearing upon commercial transactions between the States. The Webb-Kenyon Law is an illustration of such action, and the Federal Child-Labor Law is substantially the same class of legislation.

That the Federal Child-Labor Law is within the legislative power of Congress would seem to follow, therefore, from the facts (a) that it finds its operation within the field of interstate traffic and transportation, (b) that although it prohibits the transportation of certain traffic, it regulates the totality of interstate commerce by excluding from its channels the prohibited articles, (c) that it has a justifiable commercial purpose in that it tends to free transactions between States from the trammels and restrictions which result from lax child-labor laws existing in some States, and (d) that it has an appropriate purpose in that while relating directly to interstate traffic and transportation it is intended to facilitate the solution of the problem which results from conflicting State policies which have an important effect on commercial transactions between States, a consideration closely associated with (c).37

"Whether legislation to prevent child labor might be justified under the War Power is a question which does not come within the purview of this discussion. In view, however, of the importance of conserving the manpower of the nation-a consideration which has been made emphatically evident during the past few years-there would seem to be substantial warrant for Congressional action under this power. And it is not believed that the connection would be held too remote, notwithstanding what was said in Lochner v. New York, 198 U. S. 45 (1905), at pages 60-61. See Muller v. Oregon, 208 U. S. 412 (1908), at pages 421-422; Miller v. Wilson, 236 U. S. 373 (1915); Bosley v. McLaughlin, 208 U. S. 385 (1915).