and that with state control of interstate commerce, ways would be found to load the articles of import and export during the passage through their jurisdictions with duties, which would fall on the makers of the latter and the consumers of the former.

The far-reaching importance of this federal control over commerce among the states was not and could not be foreseen. It only came to be realized in the course of years, as the commercial development of the country demanded a judicial construction of the federal power in harmony with the requirements of such commerce. 1 The basis of this construction for all time was made by the far-sighted and masterful reasoning in the broad and comprehensive opinions of Chief Justice Marshall.2

The Supreme Court in 1895 in affirming the supremacy of the federal power in interstate commerce, said: 3

3

"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 opera-tion 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."

1 Only five cases involving the construction of the clause were decided by the supreme court prior to 1840.

2 Justice Bradley in the opinion 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 involving 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.

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

§ 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 independent 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 commerce1 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. 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

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,

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.

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. 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 constitution, 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."

3

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.

5

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 opinion1 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 discriminate 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.

§ 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 postoffices and post roads, to coin money, to establish uniform systems of bankruptcy, to grant patents for discoveries, and most important of all the taxing power, are closely associated with commercial relations and activities. There is also what has been termed the "co-efficient power," the power to make all laws necessary and 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 of ficer thereof.

The broad and comprehensive construction given to this coefficient power, of 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.2 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.3

The federal authority in interstate commerce, as in other matters, does not rest on a mere aggregation of the enumerated

1Justices Fuller, Brewer, Harlan and Peckham.

2 McCulloch v. Maryland, 4 Wheat. 316, 438, 4 L. Ed. 579.

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

within the constitution

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 scope of the enumerated powers, and the 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 enumerated powers, that of coining money and thereby establishing a national currency, and also upon the commerce power. It was also declared to be a power inherent in sovereignty, as exercised by other sovereignties at the time of the adoption of the constitution, and not expressly withheld by the constitution from congress.

As a political sovereignty the government of the United States may by physical force, through its official agents, in the enforcement of its powers, exercise complete sovereignty over every part of American soil which belongs to it. There is a "Peace of the United States." and this Peace can be enforced by the executive in the protection of the judicial officers of the United States throughout the United States and within the limits of any State. These fundamental principles were very strongly asserted in the Debs case," where the court said that the government of the United States, in the exercise of its power over the mails and in protecting interstate commerce, had jurisdiction over every foot of soil in its territory and acted directly upon every citizen. The decision was expressly based upon the sovereign power of the United States

1 McCulloch v. Maryland, supra. 2 Kohl v. United States, 91 U. S. 367, 23 L. Ed. 449 (1875); Stockton v. Baltimore, 32 Fed. Rep. 9.

3 Legal Tender Case, supra.

4 Chinese Exclusion Cases, 130 U.

S. 581 (1889), 32 L. Ed. 1068, 149 U. S. 698 (1893), 37 L. Ed. 905.

5 In re Nagel, 135 U. S. 1 (1890), 34 L. Ed. 55.

6 Supra, § 1.