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INTERSTATE COMMERCE IN PRODUCTS OF CHILD LABOR.
THURSDAY, FEBRUARY 17, 1916.
UNITED STATES SENATE,
Washington, D. C. The committee reassembled at 3 o'clock p. m., pursuant to the taking of recess.
Present: Senators Pomerene (presiding), Smith, Robinson, Clapp, Cummins, Oliver, Lippett, La Follette, and Poindexter.
The ACTING CHAIRMAN. You may proceed, Professor. STATEMENT OF PROF. THOMAS 1. PARKINSON, OF
Prof. PARKINSON. The Keating bill as it passed the House differs somewhat from Senator Owen's bill, which was introduced in the Senate. I urderstand Senator Owen interds to substitute the bill as passed by the House for his original bill, if he has not already done so. I want to summarize briefly the provisions of that bill.
The ACTING CHAIRMAN. That is the Keating bill ?
Prof. PARKINSON. That is the Keating bill as it passed the House. It provides that no producer, manufacturer, or dealer shall ship or deliver for shipment in interstate commerce the products of any mine, quarry, or factory which are the product in whole or in part of the labor of children, either under a specified age or beyond specified periods. Then it provides that proof of the employment of children in a mine or a factory within 60 days prior to the shipment of the products of the mine or factory; shall be prima facie evidence that those products were the products in whole or in part of the labor of children. The bill authorizes a board consisting of the Attorney General, the Secretary of Commerce, and the Secretary of Labor to make detailed rules for carrying out its purposes. After providing that for the first offense the penalty shall be a fine of not more than $200 and for subsequent offenses the penalty shall be a fine of not more than $1,000 or less than $100 or imprisonment for three months, or both fine and imprisonment, the bill declares that the dealer is not to be subject to the penalty if he can show a guaranty by the producer or manufacturer that the products shipped by the dealer were not produced in whole or in part by the labor of children. That, generally, is a summary of the provisions of the bill. 27896–168
The constitutionality of the bill to which I propose to contine my remarks depends, as Gov. Kitchin said yesterday, on the interpretation of the power of Congress over commerce under the commerce clause of the Constitution, and any other sections of the Constitition which affect the power delegated in the commerce clause. I accept unqualifiedly Gov. Kitchin's emphatic statement that the power of Congress over commerce is complete, is plenary, except in so far as it is limited by some other provision of the Constitution. I accept his statement that the Supreme Court has frequently recognized the absolute power of Congress to prohibit importations in foreign commerce. I wish to call attention at this point to the fact that Congress has the power absolutely to prohibit importations in foreign commerce merely to ask, Where did Congress get that power? It has no power except powers delegated by the Federal Constitution. It has no power over commerce, foreign, interstate, or with the Indian tribes, except the power which was delegated to it under the clause which said, “power to regulate commerce with foreign nations, between the States, and with the Indian tribes," and if it be admitted that these words “regulate foreign commerce' include absolute and arbitrary power to prohibit foreign commerce I want at least to call attention to the importance of that admission when we come to determine what is the meaning of the phrase "regulate interstate commerce." It is the same word in the same clause, and there is absolutely nothing to indicate that "regulate foreign commerce" has any other meaning than to regulate interstate commerce in so far as prohibition is included in regulation.
But for the purpose of making clear the argument which I want to present in favor of the constitutionality of this proposed regulation of interstate commerce, by preventing the shipments of the products of child labor, I want to suggest that the problem is not only capable of division into two general parts, but it requires that division, if we are to keep the precedents and our own consideration clear of confusion. And those general parts are these:
First. What is the power of the Federal Government over commerce as distinguished from the power of the State government over commerce?
What are the respective jurisdictions of the Federal Government and the State governments over commerce? How far does the Federal power go? What are its limits, and where does the State power begin?
That is one question. That is the question between the Federal Government and the State governments, and that question depends upon the meaning of the commerce clause and the reserved powers clause.
The second general question is, what are the respective rights and powers of the Federal Government and the individual, not the State. That is the question which arises under the fifth amendment to the Constitution. The question there is how far can the individual, not the State, say to Congress "you can not exercise even your express powers in such a manner as to deprive me of my right to life, liberty, or property without due process to law.”
It only serves to confuse the issue if we mix up the question of the relative jurisdiction of Federal and State governments over commerce
with the right of the individual to assert against the power of Congress his right to due process.
The fifth amendment can not become operative or important until we first decide that the proposed power is within the Federal jurisdiction. And if we decide that, we know perfectly well that it is beyond the State jurisdiction and no amount of argument directed to the question of the respective jurisdiction of State and Nation, to the balance of power between State and Nation, can then help us. Therefore I propose to direct my remarks, in the first instance, to the question whether this bill regulates interstate commerce, whether it is within the Federal jurisdiction rather than within the jurisdiction of the States over commerce, and thereafter to discuss the effect of the fifth amendment.
The first general proposition to which I want to direct your attention is this, that the power of Congress to regulate interstate commerce as stated in the commerce clause of the Federal Constitution, includes power to prohibit absolutely the shipment or transportation in interstate commerce of specified persons or property. That the Federal Constitution gave to Congress the power to prohibit interstate commerce in specified persons or things when it authorized regulation of that commerce, is indicated in the first place by general theories of construction.
I said a moment ago that the only clauses in the Federal Constitution which affect this question were the commerce clause and the reserved powers clause and the fifth amendment; but, as a matter of fact, some little help in the interpretation of the commerce clause can be had from that provision of the Constitution, Article I, section 9, which says:
That migration or importation of such persons as any of the States now existing shall think proper to admit shall not be prohibited by the Congress prior to the year 1808.
I refer to that clause merely for the purpose of deriving any suggestion which it may contain for the solution of the question as to what was meant by the Federal Constitution when it authorized regulation of interstate commerce. Why except from the powers of the Federal Government this prohibition of the migration between States unless the power to regulate commerce included the power to prohibit that migration? There was no power given to the Federal Government to prohibit such migration unless it was given under the commerce clause.
Moreover again turning our attention to general theories of interpretation it is a well-known fact that prior to the adoption of the Federal Constitution the States possessed this power to prohibit commerce. It is a well known fact that that power and its exercise was the principal reason for the framing and adoption of the Federal Constitution, and when the States surrendered the power to prohibit commerce across State lines, the power did not vanish into thin air, it did not cease to exist, because the only thing that affected that power which the States had held and exercised was the grant by those States to the Federal Government of the power to regulate commerce. That power was thereby transferred to the Federal Government.
I say from both these general considerations we derive fair arguments in support of an interpretation of the commerce clause, which
includes within the term “regulate commerce" the power to probibit commerce in specified persons or things.
But we do not need to depend upon these general theories of interpretation, sound though I think they are. We have precedents not only in the supreme court decisions but in the practice of Congress which support the power of Congress to prohibit interstate commerce in specified persons or things, and I think that it would be worth while to mention the instances in which Congress has exercised the power to prohibit interstate commerce.
Congress has prohibited transportation of lottery tickets or advertising matter relating to lotteries.
Congress has prohibited the transportation of obscene literature and articles designed for immoral and indecent use.
Congress has prohibited transportation of adulterated or misbranded foods and drugs.
Congress has prohibited the transportation of women from one State to another for immoral purposes.
Congress has prohibited the transportation in interstate commerce of a commodity in which the carrier thereof has a legal interest.
Congress has prohibited, practically, the transportation of intoxicating liquors in interstate commerce.
Congress has prohibited the shipment or transportation of meats which have not been inspected.
Congress has prohibited the shipment or transportation of cattle in interstate commerce except under regulations established by the the Secretary of Agriculture.
Congress has prohibited the shipment or transportation in interstate commerce of unmarked, imported nursery stock, or quarantined nursery stock.
Congress has prohibited the shipment or transportation of game in interstate commerce.
Congress has prohibited the transportation of renovated butter in interstate commerce.
Congress has prohibited the shipment in interstate commerce of specified viruses, serums, etc., and has prohibited interstate transportation of prize-fight picture films.
These instances in which Congress has exercised the power to prohibit interstate commerce, some of which have been passed upon and supported by the Supreme Court, indicate to me beyond all doubt that Congress does possess a power to prohibit interstate commerce. These precedents establish that “prohibition” is included in “regulation,” and that is the point I wish to make.
Right here I should like to call special attention to that prohibition of transportation of game in interstate commerce. Section 242 of the Criminal Code prohibits the shipment or transportation in interstate commerce of dead bodies or parts thereof of wild animals or birds killed or shipped in violation of the laws of a State.
The ACTING CHAIRMAN. Has that section been before the courts?
Prof. PARKINSON. That section has not been passed upon by the courts.
Mr. KITCHIN. Is it not before the court now? Prof. PARKINSON. It has not been passed upon. Mr. Kirchin. No; but I think it is in the courts. It is my understanding that it--the migratory-bird act--is before the courts.
Senator ROBINSON. Yes; the case involving the constitutionality of the so-called migratory-bird law is pending now.
Prof. PARKINSON. This is not the migratory-bird law, it is known as the Lacey Game Act. Mr. KITCHIN. I thought that was the one you referred to.
Prof. PARKINSON. The second point I want to discuss is this: The power
of Congress over interstate commerce may be exercised in the interest of the public morals, public health, and public welfare, as well as in the interest of commerce and its instrumentalities.
The Supreme Court might have ruled that the congressional power over commerce was confined to the regulation of interstate commerce or its instrumentalities for the benefit of interstate commerce or its instrumentalities, and for such benefit alone; but the Supreme Court has seen fit to decree not only by absolute decision but by frequent expressions in the course of its opinions that the Federal Constitution gave to Congress the power to regulate interstate commerce for the benefit of the general welfare, the health, the safety of the people of the United States. They have held that Congress possesses what has been frequently called a police power under the commerce clause, but it does not help to call it a police power. What the court means is that the power granted to the Federal Government may be exercised by Congress for the general good of the country. Congress is not confined in the exercise of its express powers to the accomplishment of any restricted purpose, but may use those powers for the Nation's good.
Congress has exercised its power to regulate commerce by prohibiting the transportation of lottery tickets. Lottery tickets did no harm to commerce; no harm to its instrumentalities. They were not like the loose hay that Gov. Kitchin referred to yesterday. The prohibition of their transportation in interstate commerce was in the interest of the public morals; was what the Supreme Court has called a police regulation under the commerce clause; a police regulation because it is analogous to that power which the States exercise when they regulate in the interest of the public health and the public welfare and the public safety, despite the guaranty of due process to the individual. That is the only meaning of police power under the commerce clause; a regulation in the interest of the public health and safety, a use of the commerce clause for a purpose other than the immediate benefit of commerce and its instrumentalities.
Senator CUMMINS. Would it interrupt you if I asked a question?
Prof. PARKINSON. No, Senator; I shall be very glad to respond to questions.
Senator CUMMINS. Do you mean that under that clause we can do anything, assuming that it is a regulation for any purpose that we might think wise? I think you said that Congress might prohibit interstate commerce for any purpose that Congress might deem best. Do you think that we could prohibit commerce with a State, with every State that allows women to vote?
Prof. PARKINSON. So far as the commerce clause alone is concerned, and so far as the States have any right to object that the power has not been delegated to the Federal nation, yes; but I am coming in a moment to the other question as to how far this full power of Congress is affected by the fifth amendment.